Her Majesty the Queen - v. -, 2016 SKPC 146

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 146 Date: November 18, 2016 Information: Y382133 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - CLP Appearing: Daryl Bode For the Crown Deanna Harris For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. DECISION ON S. 11(

B) CHARTER APPLICATION R. GREEN , J I. INTRODUCTION [ 1 ] CLP was charged on September 24, 2013 with two counts of sexual assault under s. 271 of the Criminal Code . He was

fifteen years of age when charged, pursuant to the Youth Criminal Justice Act . He has appeared in court many times on these charges. He entered a not guilty plea on February 26, 2014. His charges were set for trial seven times up to and including the summer of 2016. His trial is now set for January 12, 2017, 12 days short of 40 months after he was charged. [ 2 ] The defence applied for a judicial stay on July 14, 2016, claiming this young person had not been tried within a reasonable time as guaranteed by s. 11(

b) of the Charter of Rights and Freedoms . Ms. Harris further submitted that the delay in this case is unjustifiable considering ss. 3(b)(iv) and (

v) of the Youth Criminal Justice Act, which requires timely intervention for a youth charged under this Act , described in these subsections as “timely intervention that reinforces the link between the offending behaviour and its consequences” and “the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time”. [ 3 ] The defence lawyer and Crown prosecutor, in written submissions, took dramatically different positions on who has been responsible for the delay: with the defence claiming responsibility for a total delay of only four months and the Crown claiming only to be responsible for five months of delay and claiming that over thirty-three months of the remaining time resulted from explicit defence requests for adjournments or adjournments requested by the Crown which the defence implicitly consented to.

That leaves me to review this Court’s record of the adjournments, in determining whether this young person has been tried within a reasonable time. II. THE LEGAL FRAMEWORK OF S. 11(B) [ 4 ] In R v Jordan [1] , the Supreme Court of Canada set out a new framework for applying s. 11(

b) of the Charter . [2] In its majority judgment a so-called presumptive ceiling for delay of 18 months - beyond which delay is presumed to be unreasonable - was established for trials in provincial courts. [3] From that ceiling of total delay, defence-waived or defence-caused delay is to be deducted. [4] As the Court explained: Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct.

Defence actions legitimately taken to respond to the charges do not constitute defence delay. [5] [ 5 ] Further, the period of delay caused by any discrete exceptional events must be subtracted from the total delay in deciding whether the ceiling has been exceeded. [6] As the Court explained: Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circum stances once they arise. [7] [ 6 ] The Court further said, regarding exceptional circumstances, that: It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty.

It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. [8] [ 7 ] For charges in the system before the Jordan decision, as in this case, the Court said a transitional exception may arise: This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed.

This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. [9]

[ 8 ] Regarding such transitional cases, the Court said “the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems.” [10] However, the Court went on to say: On the other hand, the s. 11(

b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework.

Section 11(

b) breaches will still be found and stays of proceedings will still be en tered for cases currently in the system. [11] [ 9 ] Finally, regarding transitional cases, the Court said: For cases already in the system, the presumptive ceiling still applies; however, "the behaviour of the accused and the authorities" -- which is an important consideration in the new framework -- "must be evaluated in its proper context" ( Mills , at p. 948). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances.

Reliance on the law as it then stood is one such circumstance. [12] [ 10 ] In a decision rendered the same day, the Supreme Court applied the Jordan framework to a case already in the system, in R v Williamson [13] . In that case, the Court confirmed a stay of proceedings under s. 11(

b) for a delay of 34 months in trying the accused on historical assault charges. In reaching that decision, the majority of the Court considered: (1) whether the trial was straightforward; (2) the length of institutional delay in the area the trial was conducted; and (3) the efforts of the Crown and defence in expediting the proceeding. III. THE DELAY IN THIS CASE [ 11 ] The time between when this young person was charged on September 24, 2013 and the current trial date of January 12, 2017 is just over 39 ½ months (1206 days).

From this total, I must determine what time should be subtracted for defence delay and exceptional circumstances in determining whether the presumptive ceiling of 18 months has been breached. September 24, 2013 - February 26, 2014 [ 12 ] CLP’s Information first came before the Court on November 4, 2013. He was in school, and his father appeared with the Aboriginal Court worker Mr. Bobb. His attendance was waived and his plea was adjourned to December 9, 2013 for him to apply for Legal Aid. On that date, counsel from Legal Aid appeared for him, and said the young person had missed his appointment.

His plea was adjourned to January 15, 2014 to allow time for the young person to meet with his lawyer with his mother in attendance. [ 13 ] On January 15, 2014, defence counsel asked to adjourn his plea to February 26, 2014 to obtain “some significant further disclosure”, noting this was a lengthy adjournment as he was to be away on vacation. [ 14 ] Regarding this period, I am satisfied that most of these days were defence actions legitimately taken to respond to the serious charges against this young person.

The only days which I am satisfied should count as defence delay are those over which an adjournment was required because of the appointment CLP missed his with his lawyer. (37 days of defence delay) February 26, 2014 - August 20, 2014

[ 15 ] After CLP’s not guilty plea was entered on February 26, 2014, the Court offered a trial date of April 30, 2014 or, in the alternative, dates in August. The Crown prosecutor requested August, and the trial date was set for August 20, 2014. While the defence lawyer did not argue against the later date, I do not accept that the defence implicitly agreed to waive this delay. August 20, 2014 - January 20, 2015 [ 16 ] On this date, defence counsel sought an adjournment of the trial because, in his words, significant disclosure had been made a few days before the trial. Mr.

Bode, however, in his brief asserted that the disclosure - made on August 8 and 12, 2014 - was simply written transcripts of videos that were provided to the defence on November 29, 2013. Considering that explanation, I am satisfied that the delay over this period was caused by the defence. (154 days of defence delay) January 20, 2015 - April 22, 2015 [ 17 ] The trial did not occur on January 20, 2015, as one week before that date, defence counsel sought an adjournment of the trial because of personal family issues. The trial was rescheduled to April 22, 2015.

As a result, in my view, this period constitutes defence delay. (92 days of defence delay) April 22, 2015 - September 29, 2015 [ 18 ] On April 22, 2015, the prosecutor sought an adjournment of the trial.

Two reasons were stated: (1) the youthful complainant had, that day, told the prosecutor she wanted a support person to sit with her when she testified pursuant s. 486.1, but that support person was in custody - with the Crown opposing his release - and was set for a bail hearing later in the week; and (2) because he was involved in CLP’s case and the bail hearing of the suggested support person later in the week, the prosecutor feared he might be in a conflict position. [ 19 ] The defence argued against this adjournment.

While acknowledging that s. 486.1 says the judge shall order a support person of the young witness’ choice to sit with her, defence counsel noted that the

section further says “unless the judge is of the opinion that the order would interfere with the proper administration of justice”. The defence therefore argued that such an order would interfere with the proper administration of justice, as the complainant had chosen a person she knew to be in custody and unavailable. [ 20 ] The prosecutor, further said, that although he was wishing to make the s. 486.1 application at some point, he could not do it that day, as the proposed support person was not available given his detention.

The judge reluctantly adjourned the trial, and directed that a new trial be selected a few days hence.

He, as well, made it clear, by my reading of the transcript, that the next trial date should in his view be peremptory on the Crown. [ 21 ] When the new trial date of September 29, 2015 was selected, the record did not indicate that the adjournment was peremptory on the Crown, as had been previously intended by the judge on April 22, 2015. [ 22 ] The Crown submits that the circumstances surrounding this request for an adjournment were an exceptional circumstance, which should be deducted from the overall time to trial in this case.

I disagree. [ 23 ] There was in my view ample time prior to the trial date of April 22, 2015 to ascertain whether and, if so, who the youthful complainant wanted as a support person, and to make arrangements to have that person present so that the s. 486.1 application could be made. This obviously did not happen. Regarding the issue of the prosecutor being in a conflict situation, that is a common circumstance in the justice system, and an alternate prosecutor to take carriage of the bail hearing could have been arranged.

Taken together, I am not satisfied that these circumstances were exceptional, as defined by the Supreme Court in Jordan .

September 29, 2015 - January 13, 2016 [ 24 ] On September 29, 2015, the Crown sought a further adjournment as the complainant had been taken to a drug treatment facility the day before. February 9, 2016 was chosen for the next trial date.

Defence counsel indicated that his successor at the Yorkton Legal Aid office would take carriage of this file. [ 25 ] I am satisfied that this delay was caused by an exceptional circumstance which, in terms of the test set in Jordan , were reasonably unforeseen or reasonably unavoidable, and Crown counsel could not reasonably remedy the delays emanating from those circum stances once they arose. (106 days of delay for exceptional circumstances) January 13, 2016 - July 14, 2016 [ 26 ] On January 13, 2016, the new defence counsel for CLP advised that he was not available on February 9, 2016 for the trial due to scheduling conflicts.

As a result the new trial date was set for July 14, 2016. This is defence delay. (183 days of defence delay) July 14, 2016 - August 23, 2016 [ 27 ] On July 14, 2016, the Crown again, sought an adjournment of the trial. The prosecutor said the complainant was unavailable to testify in court as she remained in treatment in Calgary. The defence strongly opposed the adjournment, on this the sixth trial date for CLP, and Ms. Harris made it clear she would be bringing a delay application under s. 11(

b) of the Charter if the trial was further adjourned. Noting the decision was very close to the line the judge adjourned the trial to August 23, 2016. [ 28 ] The Crown argued that this delay resulted from an exceptional circumstance. I disagree. Given the substantial time the complainant had been in treatment and the time that had passed since the last trial date six months earlier, I accept that arrangements could have been made to either have the complainant attend or have her testify by video.

August 23, 2016 - November 18, 2016 [ 29 ] I do not have a transcript for what occurred on August 23, 2016, but on July 14, 2016, Ms. Harris filed an application with the Court seeking a stay of proceedings as CLP had not been given a trial within a reasonable time contrary to s. 11(b). She then discovered that a transcript to support the application would likely not be ready from Transcript Services by August 23, 2016. Counsel spoke to the matter on July 29, 2016. A date for the application was set for October 7, 2016 - which was subsequently changed to October 11, 2016.

A trial date of January 12, 2017 was selected in the event the defence application was dismissed. [ 30 ] The Crown, in its brief, said, in effect, that this period should be categorized as defence delay, as the defence could have proceeded with the trial on August 23, 2016, and made the delay argument at a later time. I disagree.

Setting aside the possibility that the trial could have been concluded in its entirety one way or another on August 23, 2016 - leaving no possibility of a delay application - I do not see how what I accept as a reasonable attempt by the defence to enforce the rights of CLP to a trial within a reasonable time could lead to a conclusion that the defence was responsible for further delaying this trial. [ 31 ] Ms.

Harris was the fourth legal aid defence counsel to have carriage of CLP’s defence, and I accept that she brought and argued the application as quickly as possible in the circumstances, which included the time required to get a transcript. As a result, I do not find that the time from August 23, 2016 until today - the date of my decision on the defence application - was the result of defence delay or delay from exceptional circumstances. November 18, 2016 - January 12, 2017

[ 32 ] While I have found that the defence was entitled to a reasonable time to present its s. 11(

b) application and receive the court’s decision, nevertheless, I don’t find that the Crown, who was prepared to proceed on August 23, 2016, should be responsible for the delay between my decision today (November 18, 2016) and the trial date of January 12, 2017. I find this to be an exceptional circumstance outside of the Crown’s control. (55 days of delay for exceptional circumstances) IV. WAS THE DELAY UNREASONABLE? [ 33 ] The time between the date of the charges against this young person (September 24, 2013) and the existing trial date (January 12, 2017) is 1206 days.

Based on my discussion above, I have determined defence delay was 466 days and that delay from an exceptional circumstance was 161 days. Taken together, when this total delay of 627 days is subtracted from the time between charges and the trial (1206 days, as above), the resulting time to trial is 579 days, or just over 19 months.

That exceeds the ceiling of 18 months in provincial court from Jordan , and as a result the delay is presumptively unreasonable. [ 34 ] Because this case began before the Jordan decision, I am then to consider whether a transitional exceptional circumstance should apply in this case, to render the delay as reasonable because of the reasonable reliance on the law as it previously existed.

In discussing the transitional exception, the Supreme Court in Jordan , raised issues which included the complexity of the charge and whether there were significant institutional delays in the trial location. [ 35 ] After considering the applicability of any transitional exceptional circumstance, I am not satisfied that the delay of 579 days in this case was justified. That is because:

(1) CLP was 15 years of age when charged, and in addition to his rights under the Charter had the right to expect timely intervention as a young person under ss. 3(b)(iv) and (

v) of the Youth Criminal Justice Act ;

(2) This does not appear to be a complicated or lengthy trial, as Ms. Harris’s asserted that the only issue in the trail is consent, and this was not disputed; and

(3) There was not a reality of institutional delay in the Yorkton area over the time spanned by this proceeding; [ 36 ] Even applying the criteria from the Supreme Court’s previous seminal decision on delay R v Morin [14] - which was overruled in Jordan - I am not satisfied that the delay in this case was justified. [ 37 ] In Morin , the Supreme Court said the factors to be considered in deciding whether s. 11(

b) had been violated were: (1) the length of the delay; (2) the waiver of time periods; (3) the reasons for the delay, including: (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown,(

d) limits on institutional resources, and (

e) other reasons for delay; and (4) prejudice to the accused. [15] [ 38 ] Taken together, I am satisfied that a delay of 579 days - which already recognizes time deducted for defence delay and waiver, and exceptional circumstances faced by the Crown - is not reasonable or justified for a straightforward trial in an area that did not have any significant institutional delay issues, regardless of any issues of prejudice to the accused. While this was not a proceeding where in my view either the Crown or defence showed any great initiative in expediting the proceeding, nevertheless I am satisfied that the defence has shown, both, that CLP’s right to a trial within a reasonable time under s. 11(

b) was breached and that a judicial stay is the

appropriate remedy under s. 24(1) of the Charter. V. CONCLUSION [39] Because I am satisfied that this young person, CLP, was not tried within a reasonable time, contrary to s. 11(

b) of the Charter,and as well contrary to his right to expect timely intervention as a young person under the Youth Criminal Justice Act, I direct a judicialstay of the charges on this Information. R. Green, J [1] 2016 SCC 27. [2] At para 5. [3] Ibid. [4] At para 49. [5] At para 66. [6] At para 75. [7] At para 69. [8] At para 70. [9] At para 96. [10] At para 97. [11] At para 98. [12] At para 103. [13] 2016 SCC 28. [14] (SCC), [1992] 1 SCR 771. [15] At para 31.