R. v. Sonnenberg, 2018 BCPC 348

Citation: R. v. Sonnenberg 2018 BCPC 348 Date: 20180820 File No: 49792-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRANDON SONNENBERG RULING ON VOIR DIRE OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Crown: C. Burnett Counsel for the Defendant: N. Cobb Place of Hearing: Vernon , B.C. Date of Hearing: July 12, 2018 Date of Judgment: August 20, 2018

[ 1 ] Mr. Sonnenberg has brought an application under section 24 (1) of the Canadian Charter of Rights and Freedoms (the “ Charter ”). He alleges that there has been a violation of his right to be tried within a reasonable time. The remedy he seeks is a judicial stay of proceedings. Background [ 2 ] Mr. Sonnenberg was arrested and charged with possession of heroin for the purpose of trafficking on April 5, 2016. The Information was sworn that day. He elected trial in Provincial Court and pleaded not guilty. On July 27, 2016, he fixed a date for trial.

His trial was originally scheduled to be conducted in the spring of 2017, however, several months prior to the anticipated trial date he retained new counsel and was granted an adjournment. His trial was actually conducted between the fall of 2017 and spring of 2018, and he was convicted on May 25, 2018. This application was heard on July 12, 2018, the date that had originally been scheduled for his sentence hearing. [ 3 ] The time elapsed between April 5, 2016 and the date of his conviction was 781 days, or 25 months and 21 days. [ 4 ] Resolution of the issues raised by Mr.

Sonnenberg requires the application of the law as explained by the Supreme Court of Canada in R. v. Jordan , 2016 SCC 27 and R. v. Cody , 2017 SCC 31 . The specific issues are:

a) the characterization of the specific causes of the delay in this case,

b) an accounting for defence delay, and

c) the calculation of “net delay”. Materials on the Application [ 5 ] Before going further, I must make three comments with respect to the materials provided to me on this application. [ 6 ] First, both the applicant and the Crown filed materials. Those materials did not include transcripts of any of the actual appearances in court. As a result, I have become more familiar than I ever wished to be with Court Services’ Digital Audio Recording System (DARS). I was able to listen again to what was said to me by counsel in court, and where relevant I have included certain statements made on the record.

Despite the lack of an official transcript to refer to, I believe that they are accurate. [ 7 ] In the future, transcripts would be very helpful. If the parties cannot agree who should bear the cost of producing transcripts because they do not agree whether the net delay falls above or below the presumptive ceiling and therefore who will bear the onus of establishing that the delay is reasonable, they should bear in mind that regardless of how the onus might shift as the application unfolds, the applicant must lead evidence at the outset.

In my view, it is the applicant’s responsibility to provide a satisfactory evidentiary basis for the application. Unless there is an agreed statement of facts, on an application like this that initial onus will almost always require the production of transcripts. [ 8 ] Second, the materials filed by counsel included only some of the emails exchanged between them and the Judicial Case Manager while scheduling dates. Several emails were not included. Some of the emails that were not included contained explicit requests that the Judicial Case Manager bring that email to my attention upon receipt.

As a result of those requests, the emails were brought to my attention and I read them. All of the emails sent in the course of the date fixing process are communications between Crown, defence and the Judicial Case Manager. In the circumstances and for these purposes, the Judicial Case Manager speaks for the Court.

In future, counsel might consider providing an indexed joint book of all emails for easy reference, so that all parties and the Court can easily access and review the things said and positions taken by the parties. [ 9 ] Finally, neither counsel provided a chronology of the dates on which this matter was in court, although the applicant provided a print out from the Court Services Online website and the Crown filed the affidavit of his assistant, which referred to some of the dates. Neither the affidavit nor the printout was particularly helpful.

I have prepared a chronology drawn from the submissions of counsel, the DARS recordings, the record of proceedings and the emails brought to my attention. That chronology will be attached as an appendix to this ruling. [ 10 ] Given these three concerns with the material provided to me, I considered whether to request the Judicial Case Manager to

schedule an interim appearance in order to raise my concerns with counsel and hear their submissions about how best to proceed. Recognizing, however, that Mr. Sonnenberg is alleging that his trial was not held in a reasonable time, I concluded that it would be preferable for me to carry on and provide this ruling as quickly as possible.

Law [ 11 ] In Jordan and Cody the Supreme Court of Canada stressed that the right to be tried within a reasonable time was central to the administration of Canada’s criminal justice system, and that unreasonable delays denied justice to the accused, victims and their families, and to the public as a whole.

At the same time, the Court recognized that accused persons might seek to avoid responsibility for their crimes by embracing delay, and hoping to obtain a stay of proceedings. ( See Jordan at para 21 .) The Court stressed that every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time. ( See Cody at para 1 , emphasis added.) [ 12 ] In R. v.

K.N. , 2018 BCCA 246 at para 5 , our Court of Appeal referred with approval to the manner in which the Ontario Court of Appeal summarized the Jordan framework in R. v. Coulter , 2016 ONCA 704 . In Coulter , the Court said: “[32] At the heart of the new framework lies a ceiling, beyond which delay is presumptively unreasonable. The presumptive ceiling is 18 months for cases going to trial in the provincial court and 30 months for cases going to trial in the superior court or cases going to trial in the provincial court after a preliminary inquiry ( Jordan , para. 46 ).

[33] ... [T]he new framework is set out below, with the key elements highlighted in bold. ... [34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47). [35] Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66). [36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown mustestablish the presence of exceptional circumstances (Jordan, para. 47).

If it cannot rebut the presumption, a stay will follow (Jordan,para. 47).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan,para. 71). [38] Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determiningwhether the presumptive ceiling has been reached (Jordan, para. 75). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex suchthat the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80). [40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable(Jordan, para. 48). [41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the"Transitional Cases") (Jordan, para. 96).” [Bolding in original.] [13] Prejudice to the accused is assigned a far less significant role in the Jordan analysis than it had been given in the frameworkestablished by the Court’s rulings in R. v.

Askov (1990), (SCC), 59 CCC (3d) 449 and R. v. Morin (1992), (SCC), 71 CCC (3d) 1 (SCC). Total Delay [14] “Total delay” begins with the date on which the Information was sworn and ends with the actual or anticipated end of the trial. In the matter before me, Mr. Sorenson and the Crown agree that the date on which Mr. Sorenson was found guilty, May 25, 2018, is theend date against which the total delay should be calculated.

In Jordan, the Court observed that the issue of delay in sentencing was notbefore it, and explicitly made no comment about how the presumptive ceiling should apply to delay applications brought after aconviction what is entered, or whether additional time should be added to the ceiling in those cases. (See Jordan, Footnote 2.) [15] The total delay in Mr. Sorenson’s case is 781 days between April 5, 2016 and May 25, 2018. Defence Delay [16] “Defence delay” must be subtracted from the total delay in order to determine the “net delay”.

In Jordan, the Supreme Court ofCanada said this about defence delay: “[61] Defence delay has two components. The first is delay waived by the defence. Waiver can be explicit or implicit, but in eithercase, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will haveon those rights…. … [63] The second component of defence delay is delay caused solely by the conduct of the defence.

This kind of defence delaycomprises “those situations where the accused’s acts either directly caused the delay or the acts of the accused are shown to be adeliberate and calculated tactic employed to delay the trial (Askov at pp. 1227-28.)…” [17] I will deal with the second component of defence delay first, because it can be dealt with quickly.

This type of defence delaywould include unreasonable conduct that causes or directly contributes to delay; tactics calculated to delay the matter, such as frivolousapplications or requests; and lengthy periods of defence unavailability when both the court and the Crown were available and ready toproceed. In Mr. Sorenson’s case, there has been no unreasonable conduct or frivolous applications, and his counsel has been reasonablyavailable since taking conduct of the file. [18] The first component of defence delay is delay waived by the defence.

The concept of waiver of a period of delay was notspecifically addressed by the Supreme Court of Canada in Jordan or Cody. Many years ago in R. v. Askov, (SCC),[1990] 2 SCR 1199 at para 98, that Court said: “… It is now well established that any waiver of a Charter right must be “clear and unequivocal… With full knowledge of the rights theprocedure was enacted to protect and of the effect the waiver will have on those rights in the process”: Korponay v. Can. (A.G.), (SCC), [1982 1 SCR 41 at 49. The failure of an accused to assert the right does not give the Crown licence to proceed with anunfair trial.

Failure to assert the right would be insufficient in itself to impugn the motives of the accused, as might be the case withregard to other

section 11 rights. Rather there must be something in the conduct of the accused that is sufficient to give rise to aninference that the accused has understood that he or she had a

section 11 (

b) guarantee, understood its nature and has waived the rightprovided by that guarantee. Although no particular magical incantation of words is required to waive the right, nevertheless the waivermust be expressed in some manner. Silence or lack of objection cannot constitute a lawful waiver.”

[ 19 ] In this case, there was an explicit waiver of the delay caused when the first anticipated trial dates were adjourned in order to accommodate the trial

schedule of Mr. Sonnenberg’s counsel of choice. However, since there appears to be some disagreement about the exact length of the period of delay that was waived, the circumstances surrounding that adjournment application need to be examined closely. [ 20 ] Following his release on April 5, 2016, Mr. Sonnenberg promptly retained counsel. In a letter dated April 27, 2016, Mr. Adam Alteen sent a general demand for disclosure to Crown Counsel. On May 30, 2016 Mr. Reza Mansoori-Dara wrote to Crown Counsel to advise that he now represented Mr. Sonnenberg in relation to this matter. Both Mr. Alteen and Mr.

Mansoori-Dara wrote on the letterhead of Cobb St. Pierre Lewis, the law firm at which Mr. Sonnenberg’s current counsel is the senior partner. [ 21 ] On behalf of Mr. Sonnenberg, Mr. Mansoori-Dara provided or agreed with a time estimate of three days to complete the trial. On July 27, 2016, the matter was set for trial and the dates were anticipated to be February 6, 7 and 9, 2017. [ 22 ] Sometime after that, Mr. Sonnenberg decided to retain his current counsel. In his affidavit, Mr. Sonnenberg explained the change of counsel in this way: “3. As I could not afford Mr.

Cobb’s rates for an out-of-town trial, I ended up retaining an associate of his on a somewhat reduced fee. Once I got over my embarrassment and advised my mother that I had been charged, she insisted on loaning me the additional funds needed to have Mr. Cobb formally take over as my counsel in November 2016.” [ 23 ] On November 23, 2016 Mr. Sonnenberg’s new counsel appeared before the Honourable Judge de Walle and applied to adjourn the three-day trial that was set to begin in February 2017.

During the application, the following exchange between counsel took place before the trial was adjourned: “Defence Counsel: “We are waiving the delay that results and we have early dates available in the months that followed the February dates.” Crown Counsel: “I am not available likely until - we are looking at the summer.” Defence Counsel: “Of course, we will sort that out. It does not even have the potential to run afoul of the dictas of the recent Jordan decision.”” [ 24 ] Mr. Sonnenberg’s new counsel did not revisit or adjust the time estimate that had been provided by Mr. Mansoori-Dara.

On November 30, 2016, new dates were set. The trial was set for three days, to commence on September 18 and to conclude on September 20, 2017. [ 25 ] Mr. Sonnenberg’s trial commenced on September 18, but it did not finish that week. While three days was presumably sufficient time for Mr. Mansoori-Dara to complete the trial, including submissions, it turned out to be an inadequate time estimate for Mr. Sonnenberg’s new defence counsel. In a typical case in Provincial Court, the time set aside for a trial like Mr.

Sonnenberg’s allows for the hearing of evidence, the submissions of counsel and reasons for judgment from the court. From time to time, circumstances might force the presiding judge to reserve their decision. Adjourning a case at counsel’s request to permit counsel to provide written submissions, on the other hand, is generally a rather unusual procedure. However, on the morning of September 20, defence counsel filed a binder containing 27 authorities and applied to adjourn the trial in order to provide written submissions.

Crown Counsel had agreed with that process, and said that this was the process he and this defence counsel had adopted in previous cases they had conducted together. [ 26 ] The issue of delay was canvassed at the time, and the following exchange took place: “Court: “What about the delay in all of this?” Defence Counsel: “Oh, I think it is probably neutral at the end of the day. I do not think it is a concern or that it can be attributed to anybody.”” [ 27 ] Defence counsel and Crown Counsel agreed on a

schedule for the exchange of written submissions over the following five weeks, and obtained a date for the decision. That date was scheduled to be December 15, 2017. [ 28 ] The exchange of written submissions fell behind schedule. On October 11, 2017, defence counsel wrote an email to the Judicial Case Manager, to which he attached his written submission and a Supplemental Case List listing another 27 additional authorities. He added: “The circumstances of the delay have been explained to learned Crown Counsel and will be shared with the Court if that becomes necessary.

If any adjustment in the decision date (currently December 15th) is required Defence will, of course, almost certainly bear the responsibility for same.” [ 29 ] On November 7, 2017 Crown Counsel provided his written submission to the Judicial Case Manager, saying, “Attached is the Crown’s (late) Reply Submissions for the Sonnenberg matter.” [ 30 ] On November 30, 2017 I advised the Judicial Case Manager that I would not be able to prepare a ruling on the voir dire by December 15, 2017, and the date for that decision was rescheduled to January 10, 2018. (In that period of time, I was concluding a dangerous offender hearing, but in any event I take responsibility for the period of delay between December 15 and January 10, 2018.) [ 31 ] On behalf of Mr.

Sonnenberg, defence counsel takes the position that the waiver of the delay resulting from the adjournment of the anticipated February trial dates was a qualified waiver. He provided the dates of May 29-31, 2017 on which both he and the Court were available, and argues that the Crown had a duty to provide a substitute prosecutor if Mr. Burnett, the prosecutor assigned to the

case, was not available. However, that qualification seems to have been added after the fact. When the adjournment application was made before Judge de Walle on November 30, 2016, Crown Counsel made it quite clear that he would not be available for some time - “we are looking at the summer.” Defence counsel said nothing, except to minimize the risk that his client’s rights could be infringed by the delay. [ 32 ] Given the position taken at the adjournment application by defence counsel, it cannot be said that Mr.

Sonnenberg’s waiver of the delay resulting from the adjournment of the anticipated February trial dates was qualified or conditional upon the prosecutor’s office assigning the prosecution to a lawyer with available dates that matched those of defence counsel. In the circumstances, I cannot accept that the waiver was subject to the qualification urged by defence counsel. [ 33 ] What period, then, was defence counsel waiving on November 30, when he waived the period of delay that resulted from the adjournment? [ 34 ] The adjournment was brought about by a change in counsel.

A change in counsel inevitably brings about some change in the manner which a trial is planned to be conducted. In my view, the waiver on November 30 was a waiver of that period of time from the anticipated end of the trial as I infer Mr. Mansoori-Dara had planned to conduct it, to the actual end of the trial as Mr. Cobb planned to conduct it. Mr. Cobb planned to rely on written submissions, as he said he had done previously in similar trials.

I find that there was an explicit waiver of the period of time between February 9, 2017, the last day of the anticipated trial, and December 15, 2017, when the decision was to have been given after consideration of the written submissions. That is a period of 310 days of defence delay. [ 35 ] I may be wrong in finding that Mr. Sonnenberg’s counsel explicitly waived the period of time taken up by the adjournment for written submissions. If I was, I would find that the waiver of that period of time was implicit in his response to the question put to him in court on September 20.

According to the DARS recording, when asked about the delay he replied, “Oh, I think it is probably neutral at the end of the day. I do not think that it is a concern or that it can be attributed to anybody.” I find that is sufficient to give rise to an inference that Mr. Sonnenberg understood that he had the right to trial in a reasonable time, understood the nature of that right and waived it with full knowledge. Net Delay [ 36 ] When the 310 days of defence delay is deducted from the 781 days of total delay, the net delay is 471 days, or 15.7 months.

Since the net delay is below the presumptive ceiling, the applicant bears the onus of showing that the delay was unreasonable. To do so, the applicant must show two things: first that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and second that the case took markedly longer than it reasonably should have. [ 37 ] I am satisfied that the applicant cannot succeed on either arm of that test. Planning and then proceeding to rely on written submissions, for example, is not consistent with a sustained effort to expedite the proceedings.

Given the nature of the case, including delays for rulings in other cases, multiple voir dires and out of town counsel, a net delay of less than 16 months is not markedly longer than the case reasonably should have taken. Conclusion [ 38 ] This case has been carefully and skilfully litigated by Mr. Cobb and Mr. Burnett. I am grateful for their exhaustive written submissions and the extensive lists of authorities provided in support.

I would not want to discourage any counsel from relying on written submissions to advocate on behalf of a client, whenever counsel considered all of the circumstances and decided it was in their client’s best interest that they do so. [ 39 ] However, an accused should not ask for additional time to prepare written submissions and then complain that the process he asked for violated his right to trial in a reasonable time. No one can have his cake and eat it too.

Extending the amount of time required to try a case in Provincial Court in order to prepare written submissions is not the norm, and in this case amounted to a waiver of the additional time required. [ 40 ] The application is dismissed. ____________________________ The Honourable R. Hewson Provincial Court Judge Attachment: Appendix 1 - Chronology of Proceedings Appendix 1: Chronology of Proceedings Event Date Cause of adjournment Length of period of delay Arrest of applicant April 5, 2016 Information sworn April 5, 2016 Judicial interim release April 5, 2016 Initial appearance April 28, 2016

Further appearances May 19 - July 27, 2016 Defence request for delay after July 13 June 27, 2016 Receive the ruling of Harvey J., regarding the disclosure of information related to confidential sources June 27 to July 27: 31 days R. v.

Jordan July 8, 2016 Fix date: trial set for February 6, 7, 9, 2017 July 27, 2016 Defence application to adjourn to accommodate new counsel November 23, 2016 DARS 9:54:02: Defence counsel: “We are waiving the delay that results and we have early dates available in the months that followed the February dates.” Crown Counsel: “I am not available likely until - we are looking at the summer.” Defence counsel: “Of course, will sort that out.

It does not even have the potential to run afoul of the dictas of the recent Jordan decision.” First anticipated trial dates February 6, 7, 9, 2017 February 9 to December 15, 2017: 310 days Fix date: trial set for September 18, 19, 20, 2017 November 30, 2016 R. v. Cody June 16, 2017 Charter application September 18, 19, 20, 2017 Before middle of third day, counsel request five weeks to file written submissions. DARS 11:39:29: Court: “What about the delay in all of this?” Defence counsel: “Oh, I think it is probably neutral at the end of the day.

I do not think that it is a concern or that it can be attributed to anybody.” Crown Counsel: “I do not think (Jordan) impacts this case, to be quite honest, because of the original waiver of delay from the original trial date, which was supposed to be February of this year, to today.” Defence submissions delayed October 11, 2017 Defence counsel (in email to Judicial Case Manager): “The circumstances of the delay have been explained to learned Crown Counsel and will be shared with the Court if that becomes necessary.

If any adjustment in the decision date (currently December 15th) is required Defence will, of course, almost certainly bear the responsibility for same.” Crown’s submissions delayed November 7, 2017 Crown Counsel (in email to Judicial Case Manager): “Attached is the Crown’s (late) Reply Submissions for the Sonnenberg matter.” Decision to be rendered December 15, 2017 Re-scheduled to January 10, 2018 at the request of the Court. December 15, 2017 to January 10, 2018: 27 days Decision on Charter voir dire January 10, 2018 Adjourned to fix a half-day continuation date.

Hearsay voir dire April 9, 2017 Following ruling on hearsay voir dire and submissions, matter adjourned for preparation of reasons for judgment. Defence counsel and accused to appear by telephone. Reasons for judgment May 25, 2018 Accused found guilty, adjourned for sentencing. Notice of Charter application filed June 4, 2018 Charter application for remedy for unreasonable delay July 12, 2018 Decision to be rendered August 20, 2018