R. v. Tessier, 2021 MBPC 14

CITATION: R. v. Tessier, 2021 MBPC 14 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Jayson Laplante ) ) for the Crown - and – ) ) ) Jared Alexander Tessier ) ) Michael Dyck for the Accused ) ) ) Reasons for Decision ) Delivered: March 11, 2021 MARTIN, P.J. Introduction [ 1 ] This is a decision on a motion for unreasonable delay where the pre-trial delay is below the 18 month presumptive ceiling set out in R. v. Jordan, 2016 SCC 27 .

For the reasons set out below, I am dismissing the motion. [ 2 ] As a result of an incident on October 5, 2019 that is alleged to have occurred within the jurisdiction of the St. Pierre-Jolys Provincial Court circuit, Jared Tessier (Tessier) was charged with the two offences of operating a conveyance while impaired and while his blood alcohol concentration was over the legal limit ( sections 320.14(1) (

a) and 320.14(1) (

b) of the Criminal Code ) on October 7, 2019. The matters first appeared in circuit court on December 17, 2019. Defence counsel went on record and received initial disclosure. Within a couple of weeks, he requested disclosure of evidence that the RCMP was statutorily obligated to provide under

section 320.34(1)(

e) or that was gathered by them in their October 5, 2019 investigation and referred to in their initial disclosure package. He repeated that request several times when the outstanding disclosure was not forthcoming. Ultimately, disclosure was complete on August 20, 2020, more than ten months after the date of charge. Within five days of receiving the outstanding disclosure, the trial was set for February 23, 2021. The Court heard trial evidence on that day but adjourned for argument given some issues raised by defence counsel. On January 22, 2021, prior to the trial being heard, defence counsel filed a Notice of Motion pursuant to sections 7, 11(

b) and 24(1) of the Charter on the grounds that the institutional delay in these proceedings is excessive in the circumstances. The Court heard argument on the motion on February 25, 2021 while the trial remained adjourned. [ 3 ] Counsel agree the time from the date of charge to the trial date is approximately 16 and one-half months which is under the 18 month presumptive ceiling. Though the trial remains adjourned pending the outcome of this motion, it is anticipated that it will be complete before the 18 month ceiling is reached.

Though counsel agree defence bears the onus on this motion, they disagree as to the computation of the net delay and whether defence has met its onus under Jordan . [ 4 ] Before dealing with the parties’ positions, it is helpful to set out the chronology of the proceedings. Chronology of Events October 5, 2019 The accused is arrested. October 7, 2019 The Information is sworn. December 17, 2019 First appearance: Mr. Dyck goes on the record as counsel for the accused and initial disclosure is provided.

January 4, 2020 Defence requests the following disclosure: • Photographs of the accident scene referenced in the police reports;

• Witness statement taken by the police October 5, 2019; • Alcohol standard certificate. No response is received. January 28, 2020 Second court appearance: duty counsel notes that defence counsel is still awaiting disclosure. February 21, 2020 A Crown other than the assigned circuit Crown (the second Crown) inquires if Mr. Dyck is counsel of record. February 24, 2020 Defence confirms he is counsel of record and indicates he has still not received the outstanding disclosure. February 28, 2020 Third court appearance: the second Crown indicates she was unaware of what disclosure is outstanding.

The January 4, 2020, email from defence counsel was apparently not logged in their system. March 5, 2020 Prosecutions File Manager sends an email responding to defence counsel’s January 4, 2020 email indicating: • They will send the witness statement and the accused’s Facebook comment. • They do not have the photographs or alcohol standard certificate but will request them.

Prosecutions file inventory report indicates the witness statement and Facebook comments were disclosed to defence counsel that same day by “Winnipeg Crown Office.” March 6, 2020 Prosecutions sends a second email to defence counsel indicating they will email the witness statement and Facebook comment. A subsequent email of same date is sent by Prosecutions indicating that they only have duplicates of the initial disclosure; they do not have the outstanding disclosure. March 16, 2020 Provincial Court cancels circuit court sittings due to COVID-19 from March 17 to May 1, 2020.

March 23, 2020 Defence counsel sends another email to the Crown asking for the outstanding disclosure. The assigned circuit Crown states that all in-custody matters are taking priority and asks the second Crown if she has time to look into the outstanding disclosure. Defence counsel responds it is not urgent. March 24, 2020 Fourth scheduled court appearance: this sitting is cancelled due to COVID-19 and is administratively adjourned to May 26, 2020. April 15, 2020 Provincial Court extends the suspension of all circuit courts until May 29, 2020 due to COVID-19.

June 22, 2020 Defence counsel sends another email to the assigned circuit Crown requesting the outstanding disclosure, indicating he reviewed both his emails and office and still has not received it. The assigned Crown responds that court is adjourned to July 28, 2020. No mention is made of the outstanding disclosure. June 23, 2020 Fifth scheduled court appearance: this sitting is cancelled due to COVID-19 and is adjourned to July 28, 2020. June 29, 2020 Prosecutions sends disclosure to defence counsel by email.

July 14, 2020 Defence counsel advises the assigned circuit Crown that the June 29, 2020 email contained the initial disclosure and requests the outstanding disclosure. Crown counsel responds with surprise and frustration. July 28, 2020 Sixth court appearance: from the record it appears as though the assigned circuit Crown received the alcohol standard certificate. On the record she states: “Yes, so what happened was - - just because Mr. Dyck put this on the record. He requested these particulars in January, so I’m just going to assist my friend and put that on the record.

I’ve requested them from the police and the original disclosure package keeps send - - keeps getting sent to Mr. Dyck. He’s received three copies of the original disclosure package, but not an answer to his specific questions. So the officer attended this morning, provided me with this, and I have a certificate of (INDISCERNIBLE) I can forward to Mr. Dyck so we’re sorting it out…Apparently putting rush, rush and several stars works.” August 12, 2020 The assigned circuit Crown emails defence counsel indicating the photographs and alcohol standard certificate will be sent.

Her records indicate defence counsel had already been sent the other disclosure, namely the witness statement and Facebook comments. By separate email she emails the alcohol standard certificate. August 20, 2020 Defence counsel receives the photographs of the accident scene. He confirms he has all of the disclosure and requests trial dates. The assigned Circuit Crown offers a trial date of February 23, 2021. Defence accepts. August 25, 2020 Seventh court appearance: the trial date is set. October 15, 2020 Defence counsel advises he is considering filing a motion for delay.

November 10, 2020 The Provincial Court announces the suspension of circuit court sittings due to the second wave of COVID-19. The suspension is extended several times. January 22, 2021 The Provincial Court announces the trials set in St. Pierre-Jolys will be heard and dockets will be heard virtually. Defence counsel files his motion for delay. February 23, 2021 Evidence in the trial is heard. It is adjourned for argument. February 25, 2021 The delay motion is heard.

Analysis [ 5 ] As the delay in bringing these matters to trial is below the presumptive Jordan ceiling, defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. [ 6 ] As a preliminary step, the Court must calculate the net delay. The Crown submits, and the Court agrees, that no delay should be attributed to defence. The Crown suggests however, that three months should be deducted as a result of COVID-19 and the resulting suspension of circuit courts and out-of-custody matters.

I disagree. In this case, the issue is the provision of disclosure that was obtained by the RCMP before or on October 5, 2019. As the chronology of events demonstrates, there is no evidence that COVID-19 had any bearing on providing that disclosure. Further, the Provincial Court circuit suspensions due to COVID-19, did not affect the February 23, 2021 trial date.

As a result, I find that the net delay remains approximately 16 and one-half months. [ 7 ] As for the Jordan test, Crown counsel suggests that defence has failed to satisfy his onus as he did not bring the motion expeditiously and 16 and one-half months is not markedly longer than an impaired trial takes to get to trial in a circuit location. He further submits that this is not a clear case for a stay of proceedings. Defence counsel submits that the Provincial Court effectively shut

down once he considered bringing a motion for delay. He also says that given the lack of complexity of this case, but for the disclosure issue, it could, and should have been heard much earlier. He submits that this is a clear case for a judicial stay of proceedings. Without a stay, defence counsel are left without any effective recourse in cases of delayed disclosure. [ 8 ] Defence counsel raised the possibility of bringing a motion for unreasonable delay October 15, 2020. The motion was filed approximately three months later.

Allowing for time to prepare the motion materials and to meet with and advise his client, I find that this is not an inordinate amount of time. However, as noted in R. v. Schenkels, 2017 MBCA 62 at para. 62 , “once a trial date is set, if there is a motion for delay, it should be filed and determined as soon as possible…The facts necessary to decide a motion for unreasonable delay are essentially established once a trial date is set and any other pre-trial motions are determined.

If the motion is successful, the trial dates can be used for other accused persons, thereby ameliorating delay pressures on the justice system as a whole.” In this case, the timing of the filing of the motion did not impact the setting of the trial date and the trial proceeded as anticipated. That said, when considering issues that impact the justice system, timeliness is key.

In the end, as the Crown acknowledges that defence otherwise generally took meaningful steps that demonstrate a sustained effort to expedite proceedings, and I agree, part one of the Jordan test is satisfied. [ 9 ] This leaves part two of the Jordan test which is the crux of this motion.

Is 16 and one-half months markedly longer than it reasonably should have been to get these impaired offences to trial? [ 10 ] Factors relevant to the reasonable time requirements of a case include the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings ( Jordan paras. 87-91 ). The evidence before this Court is that this impaired trial was not complex. There were no Charter motions and counsel pared down the issues to focus on those that were relevant. The trial was heard after the docket. Four witnesses testified.

The trial lasted approximately four hours. [ 11 ] The Crown generally took reasonable steps to expedite the proceedings however, at times there appears to have been some lack of or miscommunication between the assigned circuit Crown and the second Crown about whether defence counsel was on record and what disclosure he was missing. The main issue though is the lack of timely disclosure. Frankly, ten and one-half months to receive the type of disclosure at issue in this case is not acceptable.

Jordan strived to correct a culture of complacency towards delay that had developed in the justice system over a number of years by creating a ceiling above which a case would be considered presumptively unreasonable (paras. 40-41).

It highlighted that real change will require the efforts and coordination of all participants in the criminal justice system (para. 137), noting that previously, police, Crown counsel, defence counsel, courts, provincial legislatures and Parliament had not been encouraged to take preventative measures to address inefficient practices and resourcing problems (para. 41). [ 12 ] The evidence as to what disclosure was provided by the Crown and when is unclear and difficult to discern.

Prosecutions file inventory report indicates that the majority of disclosure was placed on their file on December 5, 2019 but not disclosed until June 29, 2020. Presumably this December 5 disclosure, with the exception of the witness statement and Facebook comments, was the initial disclosure provided to defence counsel at the accused’s first appearance on December 17, 2019 but that is simply speculation by the Court. What is clear is that Prosecutions kept sending defence counsel the initial disclosure while failing to send the outstanding disclosure requested in his January 4, 2020 email.

What is also clear, is that Prosecutions file inventory report does not correspond with the evidence as to when disclosure was sent, or in some cases, received. [ 13 ] The disclosure requested by defence counsel on January 4, 2020 and the contradictory evidence as to when that disclosure provided is as follows: • The witness statement and Facebook comments: Prosecutions file inventory report lists this disclosure as having been placed on file on December 5, 2019 and disclosed on March 5, 2020.

Defence counsel acknowledged to the Court having received it around June 29, 2020 despite his July 14, 2020 email to Crown counsel stating that he kept receiving the initial disclosure; • The photographs of the scene: Prosecutions file inventory report lists this disclosure as being placed on the file August 11, 2020 and disclosed July 27, 2020. The evidence is unclear as to when the photographs were actually received.

However, email correspondence indicates that defence counsel received it on August 20, 2020; • The alcohol standard certificate: Prosecutions file inventory report lists this disclosure as being placed on file January 28, 2021 and disclosed on August 11, 2020. The record notes that an RCMP officer attended court on July 28, 2020 with that disclosure.

Email correspondence indicates that the assigned circuit Crown emailed it to defence counsel August 12, 2020. [ 14 ] While there was confusion and miscommunication in the disclosure process at the Crown’s office there is no evidence whether the disclosure issues are solely attributable to Prosecutions or if the RCMP was slow in responding to requests from the Crown’s office. Indeed, though the RCMP provided some disclosure to the Crown at the July 28, 2020 circuit sitting, it is not known if that disclosure was previously requested, as Prosecutions March 5, 2020 email indicates it would be.

It is also not known why the RCMP did not provide the alcohol standard certificate and accident scene photographs with the other disclosure on December 5, 2019 since it was already in existence. [ 15 ] Unacceptable as the disclosure delay may be, the question remains whether the 16 and one-half months is markedly longer than it reasonably should have been. I find that it is not. Though I have found that this was not a complex case and the Crown generally moved the case forward appropriately with the exception of disclosure, the trial days available in St.

Pierre-Jolys are usually confined to the docket day which sits twelve times a year, or the trial day which is an additional six days per year. Special sittings can be authorized but will typically be granted for full day matters, matters involving child witnesses or matters where defence counsel is not otherwise available. Last year, out of the 18 normally scheduled docket and trial sittings, seven, or roughly 40 percent were cancelled due to

COVID-19. In all the circumstances, it is unclear whether the actual trial date would have or could have been set earlier than February 23, 2021, the first in-person docket sitting after the second set of circuit suspensions as a result of COVID-19. [ 16 ] I accept that the lengthy delay to receive disclosure is frustrating and troublesome. Without it, defence is in a difficult position as to what advice to provide to their client. However, it is not only defence that suffers.

Outstanding disclosure adds to continuous remands on lengthy dockets in Provincial Court and results in redundant work to court staff and parties in an already overburdened, under-resourced and technologically strained system. Alternatives to triggering faster disclosure might have included setting the matter down for trial before receiving complete disclosure however this comes with the possibility of an adjournment which negatively affects the overall administration of justice.

As reinforced by the Supreme Court in R v KJM , 2019 SCC 55 at para. 80 “ Jordan will not deliver on its promise…unless all participants in the criminal justice system work together and take a proactive approach from day one (see Jordan , at paras. 5, 108, 112, and 117 ; R. v. Cody , 2017 SCC 31 , [2017] 1 S.C.R. 659, at para. 36 ).” [ 17 ] I further find that this is not a clear case warranting a judicial stay of proceedings. Jordan is clear that stays below the ceiling will be “rare” and “limited to clear cases” (para. 48).

The Supreme Court in KJM at para. 78 confirms that: “The restriction to “clear cases” was simply meant to ensure that borderline cases are not stayed, given the significant public interest in seeing a criminal matter resolved on the merits.” That said, in the right case, slow disclosure might be found to result in a case taking markedly longer than it should. The Provincial Court regularly draws attention to practices that impact delay. As stated time and again, all participants in the system need to respond. “Original signed by” Martin, P.J.