R. v. Doherty, 2015 BCSC 2573

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Doherty, 2015 BCSC 2573 Date: 20150617 Docket: 26808 Registry: Vancouver Regina v. Francis Cody Doherty Before: The Honourable Madam Justice Watchuk Oral Reasons for Judgment In Chambers Counsel for the Crown: E.A. Wolfram Counsel for the Accused: L.A. Rankin Place and Date of Trial/Hearing: Vancouver, B.C. June 17, 2015 Place and Date of Judgment: Vancouver, B.C.

June 17, 2015 [ 1 ] THE COURT: This is a s. 525 bail review for Francis Doherty, who is charged with assault with a weapon and assault causing bodily harm, both offences against the same complainant on January 28, 2015. [ 2 ] At the outset of this hearing, I made a ruling that the approach to be followed in a s. 525 bail review is what has been described as the "two-step inquiry". As a result, the hearing this morning proceeded first on the issue of whether there had been an unreasonable delay in bringing the matter to trial.

If I find an unreasonable delay, then I will deal with the reconsideration of bail as a second step. [ 3 ] The chronology of Mr. Doherty's matter proceeding through the Provincial Court extends from the laying of the information on February 17, 2015, to the setting of the trial dates on April 21, 2015. The trial dates are September 28 and 29, 2015. [ 4 ] This is a

summary of the chronology. All dates are 2015 dates: • January 28, 2015 — This is the date of the alleged offences. • February 17 — The information was sworn; Mr. Doherty arrested and in custody. • February 18, 20, and 24 — The bail hearing was adjourned to allow for disclosure. • February 26 — The bail hearing proceeded and Mr. Doherty was released on his undertaking with conditions, including to reside at a recovery house. • March 24 — Mr.

Doherty was arrested on a s. 525 warrant for breach of his undertaking, being that he had left the treatment centre. • March 26 — The bail hearing proceeded in front of Judge Burgess. A s. 524 finding was made, thus Mr. Doherty was in a reverse-onus position. There was a detention order made. At the conclusion of the bail hearing, defence counsel requested Crown counsel to conduct the arraignment hearing in order to set trial dates. Crown, however, was not in a position to be able to do that, since there was not a Crown assigned to the file. • April 9 — The arraignment hearing was scheduled.

It was adjourned at the Crown's instance in order to have further time to have a Crown assigned to the file. • April 21 — The arraignment hearing proceeded and the trial dates of September 28 and 29 were set. • April 22 — Mr. Doherty appeared by video and confirmed the trial dates. September 28 and 29 are the two days set for the trial on an in-custody basis. [ 5 ] It is not in issue that the length of the delay in this case is six months from the date of the arraignment hearing when the trial dates were set, April 21, to the first day of trial, September 28.

[6] Counsel agreed and I am satisfied that pursuant to the wording of s. 525(1), "trial has not commenced", the end point of thecalculation is the start date of the trial. This differs from the calculation in s. 11(

b) Charter cases where the Morin test is applied. [7] The law with regard to what is an unreasonable delay in s. 525 bail reviews is best set out in the case of R. v. Bowden, 2013ABQB 178. In paragraphs 19 to 35 of Bowden, Rooke A.C.J. sets out the Morin test as being applicable, while noting the differencesbetween cases seeking Charter remedies (such as Morin) and s. 525 cases: [19] Thus, the first question in a s. 525 Detention Review is, in my view, to determine if there has been unreasonable delay in gettingthe matter to trial.

If that is found in the affirmative, and it cannot be ameliorated under s. 525(9), then one does look at the release of theaccused under such circumstances as might be appropriate and, in this context, the circumstances of the accused relevant to release mustbe considered. I will address the first and then return to the second. [20] What is unreasonable delay? [21] In my belief this determination starts, at this time, with an analysis of R. v. Morin, (SCC), [1992] 1 S.C.R. 771. [22] R. v. Morin dealt with a re-examination of R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199, and the right of anaccused to be tried within a reasonable time under s. 11(

b) of the Charter. While Morin does not deal with s. 525, it is the parallelprovision under the Charter to what s. 525 is under the Code. Thus, some of its reasoning is very pertinent. [23] As with the Charter, for which Sopinka J. for the majority in Morin (at para. 7) found s. 11 to be one of the "most difficultchallenges in search of an

interpretation that respects the right of an individual in an era in which the administration of justice is facedboth with dwindling resources and a burgeoning case load . . . ", so too is it with s. 525, although with much less simplicity of languagein the latter. [24] The factors for consideration in s. 11(

b) of the Charter are similar, in my view, to those applicable to s. 525. Veit J. supportedthis conclusion in R. v. Cardinal, 1999 ABQB 205 , [1999] A.J. No. 323, 241 A.R. 467 (QB) at para. 43, where she said:

Section 525 hearings are not Askov hearings. However, the issues the court must grapple with on a s. 525 hearing are very similar tothose the court must deal with on an Askov hearing. In particular, on each of those hearings, the court starts from the position that theinitial decision to keep an accused in custody pending trial was properly made. [Emphasis added in Bowden.] [25] In Morin, Sopinka J., at paras. 31 - 2, said those factors were the same as discussed in R. v. Smith, (SCC),[1989] 2 S.C.R. 1120 and Askov (see also R. v.

MacDougall, (SCC), [1998] 3 S.C.R. 45 at para. 40), and outlined theanalysis required: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" (p.1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver [footnote omitted] 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 . . . . The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable . . . . the period to be scrutinized is thetime elapsed from the date of the charge to the end of the trial [footnote omitted]. [26] Later in his judgment, Sopinka J. went on to talk about each of these factors.

However, there is a threshold for delay and that isthe focus of these Reasons, with the other factors requiring analysis only if the threshold is reached. Sopinka, J. put it this way (atpara. 36): An inquiry into unreasonable delay . . . should only be undertaken if the period is of sufficient length to raise an issue as to itsreasonableness. If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for . . . .

If,for example, the [accused] is in custody, a shorter period of delay will raise the issue [of prejudice]. [Emphasis added in Bowden.] [27] Focussing on the threshold itself, and dealing with limits of institutional resources, he noted (at para. 48) that: There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. This period of time

may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling ondelay." [Emphasis added in Bowden.] [28] Sopinka J. discussed (at paras. 51 - 2) the considerations that go into the administrative guideline, including: "the exercise ofjudicial discretion based on experience"; the jurisdiction where the delay took place; some relaxation for a "sudden and temporary strainon resources" as a factor in applying the guideline; and the effect of custody. In the latter regard, at para. 53, he repeated (showing, Isurmise, the link between s. 525 and s. 11(

b) of the Charter) "[i]f an accused is in custody . . . the period of acceptable institutionaldelay may be shortened to reflect the court's concern." [Emphasis added in Bowden.] [29] He also noted (at para. 52) in 1992, over 20 years ago, that the guideline might change over time: "While a transitional periodmay have been appropriate immediately after the Charter came into effect, it is not appropriate any longer. This Court so held inAskov".

Veit J. had similar comments in Cardinal, at para. 41, in referencing the temporal guideline provided by Askov: "If onlybecause that information is now almost a decade old, it would be inappropriate to highlight any of the systemic trial delay informationprovided by the court in that decision." However, we are now 14 years beyond that. Thus, I believe, the administrative guideline fors. 11(

b) of Charter and s. 525 purposes, must change over time. [30] With all these considerations, Sopinka J. fixed (at para. 55) the administrative guideline as follows: "... a period of institutionaldelay between 8 to 10 months as a guide to Provincial Courts.

With respect to institutional delay after committal for trial, I would notdepart from the range of 6 to 8 months that was suggested in Askov." [Emphasis added in Bowden.] [31] At para. 56, noting that these "suggested time periods are intended for guidance of trial courts generally", he added, "theseperiods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions andthey will need to be adjusted from time to time to reflect changing circumstances." [Emphasis added in Bowden.] [32] In the case at bar, the issue of potentially unreasonable delay was subsequently resolved by letter from the accused's Counseldated January 16, 2013, which stated that the accused "no longer dispute[d] the delay, and accept[s] the originally scheduled dates".

Theapplication for detention review was thus dismissed by desk application on January 30, 2013. However, the matter of delay was stillvery much a live issue when I addressed consideration of the parameters of delay on December 12, 2012. Then, I delivered oral reasons,which have subsequently been transcribed. I consider them relevant enough to merit placing them in these written Reasons.

At that time,as edited for these Reasons, in relying on the above provisions in Morin, I said in essence what follows: As of 1992, 20 years ago, the Supreme Court of Canada then prescribed a guideline for unreasonable delay [in the context of R. v.Askov, (SCC), [1990] 2 S.C.R. 1199] as something more than eight to ten months from the [laying of the charge] to trialin a provincial court, and a further six to eight months to trial in superior court after committal if the election was indictable [emphasisadded in Bowden]. After that, the charges were eligible for judicial stay under

Section 11(

b) of the Charter, all pertaining whether or notthe accused was in custody: See R. v. Morin, (SCC), [1992] 1 S.C.R. 771. There [has been] no new guideline from the Supreme Court of Canada in the last 20 years, or any other court binding on me, to myknowledge, although the process [leading to trial] in that 20 years now includes matters such as disclosure pursuant to Stinchcombe [R.v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326] and other proceedings documented in the jurisprudence, which are, in fact,more complex, and thus legitimate requirement of institutional delay has increased.

Therefore, it seems to me that the eight to tenmonths [to trial or preliminary in a provincial court] and the six to eight months following [to superior court] is no longer applicable orpractical in that sense, although any comments on it is probably dicta in the context of this case. It seems to me that may reflect a needfor a revised guideline of, say, 12 months in the first instance to trial [or preliminary] in provincial court, plus 10 months to superiorcourt, in the case of an indictable offence.

The latter is due to the increased frequency of other Mills Charter and non-Charter voir dires,including search and seizure, O'Connor applications,

Section 10 applications, and the very

Section 11 Askov application itself. Yet nocase that I have seen, or that has been brought to my attention, that is binding on me has set any new guidelines under the

Section 11(b). Seventeen years before R. v. Morin, (SCC), [1992] 1 S.C.R. 771 and 8 years before the Charter, in 1975, approximately37 years ago, Parliament [through s. 525 of the Criminal Code] said that the superior courts had a duty to prevent unreasonable delay ingetting a matter to trial for an accused in custody and set a threshold for applications by the institutions to take place 90 days afterincarceration for indictable offences and 30 days after incarceration for

summary conviction offences. That statutory guideline has notchanged in 37 years and is still the rule for bringing applications forward; i.e., the institutions must bring those applications forwardwithin that time frame. However, once brought forward, those times, 90 days and 30 days, are no longer a reasonable standard in law inmy view of what is unreasonable delay.

Moreover, once a determined unreasonable delay is reached, or a guideline for that is reached,then the remedy is to re-examine the Section 515(10) factors in light of the delay and to determine whether, in face of a threshold ofunreasonable delay, the Court can craft a release of an accused pending trial under conditions that balances the right of the accused to a .. . trial within a reasonable time, [which] at the same time protects the rights of society under those Section 515(10) factors.

Since the Charter in 1983, it is clear that, while they are somewhat interrelated, the standard set nine years later in Morin underthe Charter for either in-custody or out-of-custody accused to be released as constitutionally guaranteed is not a standard under s. 525. Indeed, that's indicated in a number of cases in Alberta which I will refer to in my written reasons in greater detail. But one of them is R.v. Hanoman, 2003 ABQB 24, by Justice Veit in our court. Nevertheless, the 90 and 30 days still remains the threshold for such applications.

Thus, in face of history, the issue becomes what is theappropriate standard or guideline for s. 525 for unreasonable delay? None has been set, to my knowledge or to any case that has beenbrought to my attention, but it should clearly be less than the Morin standards set out in that case, or as revised as I have suggested itmight be a few moments ago. The question then is, if you have a Morin or a Morin modified guideline standard, should the timeunder 525 be one-quarter of that, a one-half of that, three-quarters of that, or some other ratio as a guideline for a preliminary decision ofunreasonable delay?

I say "preliminary decision" because once [it has been determined at a] certain threshold, then the reasons for thedelay other than the institutional delay need to be examined in the accordance with the law under s. 525 to see if any further delay thanwhat is normal has been caused by the Crown or by the accused, as to any part of the actual delay.

If I am accurate in my suggestion of a new Morin guideline of 12 months and 10 months for indictable offences, it seems to me that the ratio of one-quarter would not be appropriate because 90 days or 3 months is the one-quarter already. It should be something more than that, in my view, in light of the complexity of the cases since 1975. Is it one-half that time? Perhaps. Is it three-quarters of that time, which would be nine months? Somewhat less likely.

The balance of an appropriate guideline would therefore, in my view, be somewhere between one-half and three-quarters of what I would call the modified Morin guideline, which would mean to me between six and nine months to bring a trial or a preliminary to provincial court in the normal course and five to eight months to bring it to trial, in superior court, if committal on a preliminary in provincial court. Now, that depends a bit on the circumstances, because the reasonable time to bring a matter for trial might be different in Toronto (to which Sections 11 and 525 also apply), than Edmonton, or St.

Paul, or some other jurisdiction. So there are some regional factors that may play out. But if that is a rough guideline, then after that, the onus is put on the Crown to justify, it seems me, under the law, the delays, on the factors set out in the s. 525 cases, to determine whether, notwithstanding the threshold being reached of potentially unreasonable delay, there are other factors that make that delay reasonable. It is my view under the law that the Crown has that duty. And then to justify why some form of release should not be considered - I put emphasis on "considered".

Or alternatively, efforts be made to bring the matter back to the appropriate court for an earlier trial date. If that has not been achieved (i.e. if the further delay beyond the threshold is not justified and efforts cannot be successfully made to bring an earlier trial date), then it seems to me that the court will be forced into a re-examination of the s. 515(10) factors in light of the delay, including the responsibility for the delay and also to consider, among other things, whether the accused has sought a s. 515 bail application or a s. 520 review application.

However, it is clear that when looking at these threshold dates and looking at the dates by which the Crown might be called upon to justify any further delay or move to a re-examination of bail in light of the delay, it is relevant as to what steps were available to the parties, both Crown and accused, and whether there has been any delay in the period in question that is due to the accused, which, if due to the accused, should be deducted from the normal amount. [Emphasis in original.] [33] Thus, in my judgment, the following guidelines should be a starting point, under s. 525 , for consideration of delay in getting to preliminary inquiry or trial in Provincial Court, and trial in Queen's Bench in Calgary and Edmonton in 2013: - after commencement of detention, 6 - 9 months to get to trial or preliminary in Provincial Court ; - a further 5 - 8 months to get to trial in Queen's Bench, after committal following a preliminary in Provincial Court. [Emphasis in original.] [34] These guidelines will vary with the circumstances, some of which I can contemplate.

They may be shorter by some amount in judicial centers outside Edmonton and Calgary. If there were a direct indictment to Queen's Bench, the guideline should be similar to getting to trial in Provincial Court - 6 - 9 months. However, there may also be valid exceptions.

The list is not closed. [35] Obviously, each individual independent justice will have to make his/her decision on whether or not there has been unreasonable delay in fact and law under s. 525 in any case, whether considering these guidelines, or not. [ 8 ] The conclusion in Bowden is that six to nine months to trial or preliminary inquiry in the Provincial Court is a guideline for unreasonable delay. The Bowden decision was considered in this court in R. v. Andreychuk , 2013 BCSC 1743 . Justice Williams stated at paras. 4 to 8: [4] What is unreasonable? There is no clear measuring stick for that.

It is a factor that is comprised of a number of different elements. [5] Counsel are agreed and I most certainly believe it is a sensible conclusion that the 90 days which is used in the legislation is not de facto to be taken as the threshold of unreasonability. In a perfect world, I would have evidence before me. At the same time I do not consider the fact that there is no evidence before me such that I must necessarily conclude that the time is unreasonable. [6] There is reference in the decision of R. v.

Bowden . . . which is a decision of the Court of Queen's Bench of Alberta that six to nine months to get to trial or preliminary in Provincial Court is regarded as a norm and therefore beyond that would be unreasonable. I do not think that I can import that holus-bolus into the situation here. This is a different province and the circumstances are different. [7] Also, I have some knowledge of this just by virtue of my function as a judge in the court. Judges of the court are aware of the times that matters usually take.

I do not intend to set down in hard and fast terms what is unreasonable because in my respectful view, there are so many variables that go into that that it would be folly of me to do so. [8] Nevertheless, I do incline to the view that six months from point of fixing trial date to trial is not an unreasonable delay. I cannot say what is, but I am prepared to say what is not, and in the circumstances at hand, I am not prepared to conclude that that constitutes an unreasonable delay. [ 9 ] Each case is dependent on its particular facts.

In this case, it is of note that the Crown was not ready to fix trial dates on March 26 after the bail hearing when Mr. Doherty was detained. There had not been a Crown assigned. This is appropriately characterized as a Crown resource issue. However, whether there would have been earlier dates for a two-day in-custody trial available on March 26 is a matter of speculation. A Crown, if assigned, may have been available, or the assigned Crown's calendar may not have had time available in June and July.

Defence counsel was also available in August, but trial Crown was not. [ 10 ] The delay actually attributable by the Morin test to Crown is the 13 days between the detention order on March 26 and the arraignment hearing on April 21.

[ 11 ] In this case, taking into account all of the evidence regarding what is an unreasonable delay, I do not find the delay of six months to be an unreasonable delay. [ 12 ] I would add that if I had proceeded to the second step or had followed the alternate approach and considered s. 515(10), I would not have found Mr. Doherty to be a candidate for judicial interim release.

He remains in a reverse-onus situation. [ 13 ] I am mindful of the seriousness of the offence, which was a stabbing in the arm with considerable force, his record with many breach-type offences, the fact that he was on probation at the time of this offence, and the fact that he has been detained as a result of a s. 524 breach of the undertaking on which he was initially released. I am also mindful of defence counsel's able submissions on the issue for trial of identity. [ 14 ] In the result then, Mr. Doherty's detention status is confirmed. “The Honourable Madam Justice Watchuk”