R. v. Jordan, 2018 MBPC 14

Cite # 2018 MBPC 14 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) Deborah Carlson, for Manitoba Justice, Legal Services Branch, Constitutional Law

Section ) - and – ) ) Trevor Ewanochko ) ) Kyle Morgan, for the Accused ) ) ) Judgment delivered: April 10, 2018 L.M. Martin, P.J. Introduction [ 1 ] On July 20, 2016 Trevor Ewanochko (Ewanochko) was charged with uttering threats, pointing a firearm, and failing to respect various firearms storage and licencing requirements. The trial is set for April 23–27, 2018, 22 months and seven days after the charges were laid. He brings an application for relief pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) on the grounds that his s. 11(

b) Charter right to be tried within a reasonable delay, namely the 18 month presumptive ceiling set out in R. v. Jordan, 2016 SCC 27 , has been breached. He also applies for relief pursuant to s. 24(1) of the Charter on the grounds that his s. 11(

a) Charter rights were breached when the Crown had a new information laid more than one year after he was charged in circumstances where it was unclear which charges the Crown was going to pursue. [ 2 ] The Crown concedes that even though the charges pre-date Jordan by 18 days, the Jordan framework should apply, notwithstanding that this is technically a transitional case. The Crown also concedes that on the facts of this particular case, there are no exceptional circumstances that would justify the delay.

She submits however that the Court should subtract six months, 16 days as defence delay, bringing the net delay to 15 months, 21 days, a period which is below the Jordan presumptive ceiling. As for Ewanochko’s s. 11(

a) Charter application, the Crown says that it is without merit as it is simply not engaged given that Ewanochko was made aware of the reasons for his arrest contemporaneously with it and the laying of the initial information. [ 3 ] For the reasons that follow, Ewanochko’s s. 24(1) Charter application for a breach of his s. 11(

b) Charter right to be tried within a reasonable delay is granted. While the laying of a new information approximately one year after the allegations forms part of the factual background to bringing his charges to trial, there is prima facie no s. 11(

a) Charter breach such that this ground fails. [ 4 ] Given the focused points at issue in this application, I will limit my reasons to those particular issues, namely, whether on the facts of this case, there is any delay attributable to Ewanochko which should be deducted from the total time to bring his case to trial. Background [ 5 ] Ewanochko is a 43 year old man who comes before the Court without a prior record. Originally from Manitoba, he studied and worked as a dentist in the United States for over 20 years.

In 2016, he returned home to assist his aging father with his farm operation in Lac du Bonnet, Manitoba. [ 6 ] On June 19, 2016, Ewanochko was arrested after a call was made to the R.C.M.P. alleging that he had threatened three individuals and brandished a gun. When the R.C.M.P. attended Ewanochko’s father’s residence, they heard shots being fired. Several hours later, they entered the home without a warrant and found several firearms, all but one belonging to Ewanochko’s father. The R.C.M.P. later obtained and executed a search warrant. [ 7 ] Two informations were laid in relation to this incident.

Both are dated July 20, 2016 and contain multiple weapon related counts, including weapons determined to belong to Ewanochko’s father. A new information relating solely to offences Ewanochko is alleged to have committed was not laid until June 18, 2017. Although all three informations are still before the Court, I am told that the Crown is only proceeding on the June 18, 2017 information. [ 8 ] The trial is set to take place over five days from April 23-27, 2018.

The central issues for trial are whether Ewanochko committed the offences and whether his s. 8 Charter right was breached when the R.C.M.P. entered his father’s home without a search warrant.

[ 9 ] Originally a circuit matter out of Beausejour, Manitoba, with jurisdiction over Lac du Bonnet matters, Ewanochko’s charges first appeared in Winnipeg, Manitoba for his bail application and review, and then once again for bail, when he was arrested on a breach allegation. The charges have remained in Winnipeg since then. [ 10 ] In total, Ewanochko has spent roughly 11 months in pre-trial detention, largely as a result of a series of difficulties surrounding the bail hearings, as will be detailed later.

It was during this period of time that Ewanochko discharged counsel twice, first on September 28, 2016, and second on February 9, 2017, because he felt that his matters were not being advanced before the courts quickly enough. His third and current counsel, Mr.

Gladstone, began assisting Ewanochko as of February 23, 2017, even though he was not effectively retained until approximately March 14, 2017, when Legal Aid appointed him. [ 11 ] Though the first Beausejour circuit Crown certainly tried to move these matters forward, trial dates were not actually offered by the Crown’s office until June 26, 2017, and not set until July 10, 2017, more than one year after the charges were laid.

Before that time, in addition to the difficulties surrounding Ewanochko’s bail and counsel issues, a variety of things happened: communication difficulties arose when the first circuit Crown assigned went on medical leave and other Crowns filled in; defence counsel did not personally attend the circuit location where Ewanochko’s matters were appearing; a subsequent change in the circuit Crown slowed matters down; the process of setting hearing dates through the Crown’s office was not always responsive. [ 12 ] As previously noted, the trial has been set 22 months, seven days after the initial laying of the charges.

The Crown submits that six months, 16 days should be subtracted from this delay as defence delay.

Her reasoning for this subtraction focuses on two discrete periods of time: December 12, 2016 when Ewanochko’s matter was marked for plea, until June 14, 2017, the date which she submits he was first ready to make an election; and April 9-23, 2018 when the Court and the Crown were first available for trial and Ewanochko’s counsel was not. [ 13 ] While I accept the Crown’s second argument for defence delay, namely the period of time when the Court and the Crown were ready to proceed and defence counsel was not, I have difficulty accepting her first argument given the facts of this particular case. [ 14 ] Though the new Jordan framework has moved away from a retrospective examination of the proceedings, when circumstances giving rise to potential defence delay are not clear cut, such a review becomes necessary to explain why certain periods of time are, or are not, attributable to defence. ( R. v.

Cody , 2017 SCC 31 , paragraph 32 ) In this particular case, a retrospective examination of the six months, two days shows that the delay is not solely due to defence action or inaction. History of the Proceedings [ 15 ] Even though the Crown is only asking this Court to subtract the period of time from December 12, 2016 to June 14, 2017 as defence delay, she bases this submission in part, on what she refers to as a pattern of conduct related to Ewanochko’s bail application and change of counsel.

For this reason, and to provide further context, I will outline three periods of time which are relevant to these proceedings.

Period 1: June 21, 2016 - December 12, 2016 [ 16 ] A review of the history of proceedings indicates that Ewanochko’s bail application was denied in Provincial Court on June 21, 2016, in part, as a result of submissions made by the articling student appearing on his behalf that he suffered from mental health issues, a submission later denied by Ewanochko and his second counsel. [ 17 ] This bail decision was reviewed in Queen’s Bench on August 18, 2016; a date had been set three days earlier but the court ran out of time and could not address it.

A decision was not provided by the Queen’s Bench review judge until November 17, 2016, some three months later. [ 18 ] While the bail review was pending, the first circuit Crown reached out to Ewanochko’s counsel of record (first counsel) in the middle of September, 2016 to determine what he intended on doing with his charges. The only information provided by first counsel was that he was busy with other matters but believed there was still some outstanding disclosure. [ 19 ] On September 28, 2016, first counsel was discharged by Ewanochko who had become frustrated with the lack of progress with his matters.

He subsequently retained second counsel who went on the record on October 11, 2016 and immediately began resolution discussions with the first circuit Crown. No previously scheduled court appearances were missed as a result of this change in counsel. [ 20 ] By the middle of November, 2016, the first circuit Crown advised second counsel that she was becoming concerned with delay and would ask the Court to mark Ewanochko’s matters for plea at the next court appearance in Beausejour on December 12, 2016. She also advised that she would no longer speak to the matter on second counsel’s behalf.

Second counsel was agreeable to having the matters marked for plea. She also indicated that she did not have instructions from Ewanochko about the resolution offer made by the first circuit Crown and suggested that he was focussed on the bail review scheduled four days later. [ 21 ] When second counsel appeared in Queen’s Bench on November 17, 2016 for the bail review, she indicated on the record that she had met with the Crown two weeks earlier and that they were setting dates but that dates had not yet been offered.

The bail review Crown (not the first circuit Crown) indicated that her information was that they were awaiting Ewanochko’s instructions and that dates were to be set on December 12, 2016. Second counsel replied that December 12, 2016 was for plea and for dates to be arranged prior to that. She added that discussions have been ongoing and that “it’s not that this has been sitting”. Period 2: December 12, 2016 - June 14, 2017 [ 22 ] This is a period of time which the Crown alleges should be subtracted as defence delay.

A detailed chronology follows as it best characterizes the nature of the proceedings: December 12, 2016 : The matter appears in Beausejour. A different Crown appears for the first circuit Crown who is on medical leave.

This Crown advises the Court that Ewanochko had appeared and advised her that second counsel had sent the Crown an email. She surmises that perhaps second counsel had sent the email to the first circuit Crown instead of herself. She also noted that Ewanochko had been released on bail and is living in Ontario but came all the way in for court and commented that it seemed like he was in good contact with his lawyer so she asked the matter be remanded to January 9, 2017 to ‘sort this out’. The Court noted that the matter was marked for plea so that it would be marked for plea at the next appearance.

The judge asked if Ewanochko was still present and the Crown replied no, with no explanation. January 1-12, 2017 : A breach allegation is laid which brings Ewanochko back into custody. His matters appear in a bail triage court on January 4, 5, 6, 9, 10, 11, and 12, 2017 where it is remanded day-to-day at the request of defence counsel until it is remanded into bail court where a judge presides. January 13, 2017 : The matter appears in bail court where second counsel advises that the Crown is seeking a special sitting for the bail hearing.

This request is confirmed by the Crown attorney appearing who indicates that the matter will be very lengthy. There is no indication when the Crown formulated this position or when it was provided to second counsel. On the record discussions between counsel indicate that dates have still not been provided to defence counsel for the special sitting. Second counsel asks that dates be provided to her before the next court appearance otherwise she will ask that the court nonetheless proceed with the bail application. The matter is remanded to January 16, 2017.

January 16, 2017 : The matter appears in bail court where it is next remanded to January 20, 2017 for a special bail sitting. January 20, 2017: The matter appears in court but second counsel is ill and unable to proceed. She asks that the matter be remanded to January 23, 2017 to set another date. January 23, 2017: The matter appears in pre-trial coordinators (PTC) court. Neither junior counsel from second counsel’s firm nor the Crown attorney appearing have any special sitting dates for the bail hearing. The only indication is that it is appearing because new dates are needed.

The matter is put over to January 27, 2017. January 27, 2017 : Junior counsel from second counsel’s firm appears again in PTC court asking if the Crown had any dates. The Crown replies no so the matter is remanded to an administrative docket on February 13, 2017 where it is to appear before a judge. February 9, 2017 : The matter is brought forward to a special bail sitting. Second counsel is discharged and Ewanochko proceeds with the application unrepresented.

The entire application which includes a great deal of discussion about Ewanochko’s lack of representation and explanation about his bail conditions, only takes 40 minutes which suggests that a special sitting was not required and that the application could have been heard in regular bail court at the beginning of January.

During the submissions, the following points are made: • The Crown appearing indicates that around the time or shortly after the bail review, there had been some discussion between Crown and defence regarding the setting of dates though the type of hearing, trial or preliminary inquiry, had not yet been sorted out; • When Ewanochko came back into custody on January 1, 2017, there had been no further discussion of dates between counsel; • The day before this bail application, the first circuit Crown advised the Crown appearing at the bail hearing that there were November and December out of custody dates in Beausejour but that they could seek permission to move the matter to Winnipeg to find earlier dates.

No information is provided as to how many circuit days were available or whether a judge or clerk were also available; • Consistent with the court proceedings on December 12, 2016, Ewanochko advises that he believed one of the reasons for the delay in setting dates was that the first circuit Crown had taken a medical leave and his lawyer did not know who was handling the file in her absence; • Ewanochko was not eligible for Legal Aid because he had not been in Manitoba long enough since his return; • The second bail judge expresses concern about delay and states that the matter was “not complicated” and that the hearing should take place within the next four to five months.

February 13, 2017 : The matter appears before a judge in administrative court where it is remanded to February 22, 2017 for a case management conference. At this appearance, Ewanochko expresses his concern about quickly dealing with his breach allegations because he is in custody on those matters. February 22, 2017 : The matters appear for case management.

Several important points are discussed: • Ewanochko expresses his reasons for discharging his lawyers and his frustration with the lack of any progress with moving his matters forward; • The first circuit Crown expresses her intention to lay a new information so as to ‘pare down’ the charges; • It is clear that Ewanochko does not understand the difference between a trial and a preliminary inquiry, suggesting that neither of his previous counsel had ever spoken to him about the difference.

When he is advised of the difference by the case management judge, he elects trial in Provincial Court; • There is still outstanding disclosure including the notes of a police officer and the forensic analysis of a weapon and ammunition (presumably the disclosure first counsel indicated was outstanding back in September, 2016). Ewanochko is also missing various witness statements that were previously disclosed to second counsel in disc form, but which had not been given to him as they required a trust letter;

• The Court (case management judge) and the first circuit Crown agree that further discussions are required to determine what the issues will be for trial before setting the matter down; • Ewanochko is urged by the Court to consider finding a different lawyer failing which without prejudice discussions could take place with the Crown during the next case management conference. Ewanochko says that he would like that as he has wanted to talk to the Crown for over six months.

Ewanochko is remanded to the next day to speak to a Legal Aid lawyer about the conditions the second bail judge released him on but which were unclear such that he was still in custody. A continuation of the case management is set for February 28, 2017. February 23, 2017 : Mr. Gladstone appears in bail court to advise that he will take conduct of Ewanochko’s matters although he is not yet prepared to be noted as counsel of record. He indicates he is aware of the next case management date. That same day, Mr.

Gladstone has an email exchange with the first circuit Crown who is not prepared to have Ewanochko’s matter appear back before the second bail judge for clarification on the issues that were raised at the February 22, 2017 case management. February 24, 2017 : The matter appears in bail court but Ewanochko’s appearance is waived. February 28, 2017 : The matter appears for the second case management conference. Mr. Gladstone attends as friend of the court. The bail issue is discussed and Mr. Gladstone announces his intention to find dates before the second bail judge.

Everyone acknowledges that delay is an issue and the first circuit Crown states her preference to set down dates but this is not done given the multiple issues still outstanding and the likelihood that Mr. Gladstone will be retained and has not yet had a chance to fully canvass the matters. The case management judge remands the matters to March 14, 2017, the Legal Aid administrative docket, to ensure that counsel is appointed and the outstanding matters are dealt with so that a further case management can be set up. March 1-6, 2017 : There are some email exchanges between Mr.

Gladstone and the first circuit Crown regarding outstanding disclosure as well as an appearance before the second bail judge to sort out the bail issues. In the meantime, a different circuit Crown has been assigned to the Beausejour circuit and therefore Ewanochko’s matters. A senior Crown is also assigned to assist. Mr. Gladstone appears to have difficulty finding one of these Crowns to attend a hearing before the second bail judge as they indicate they are busy with other matters. March 14, 2017 : Mr. Gladstone attends court and advises he has been appointed by Legal Aid.

He also advises that a further case management conference had not been set as the senior Crown had not yet “had an opportunity to wrap his head around the file yet.” The matter is remanded to March 24, 2017. March 22, 2017 : Mr. Gladstone begins an email exchange with senior Crown and the new circuit Crown to initiate resolution discussions. Senior Crown responds that he would be ready to talk by the end of the week. The new circuit Crown had just received the file to examine. March 24, 2017 : This matter appears in court. The record indicates that Mr. Gladstone was still waiting for a Crown response.

April 6, 2017 : As no dates have been offered by the Crown’s office, Mr. Gladstone asks the trial coordinators office (TCO) for 15 minutes before the second bail judge. April 10, 2017, the first date offered, is agreed upon. April 10, 2017 : The matter appears back before the second bail judge who clarifies his bail decision. The matter is adjourned to April 21, 2017. April 21, 2017 : The matter appears in PTC court. Mr. Gladstone advises the Court that he has still not heard from senior Crown about dates. The matter is remanded to May 5, 2017. May 2, 2017 : Mr.

Gladstone sends further emails to the Crown indicating that he has still not received trial dates and suggests a further case management. May 5, 2017 : The matter appears in PTC court where Mr. Gladstone expresses his frustration over not receiving a response from the Crown to his requests for trial dates or a further case management conference. The matter is remanded to the May 23, 2017 administrative docket. Seemingly unbeknownst to Mr.

Gladstone, the new circuit Crown had sent an email approximately one hour before court started, indicating that he and senior Crown agree a case management would be helpful for resolution discussions “so that trial dates can be provided as soon as possible and move this matter along.” The new circuit Crown also requests his assistant to arrange a case management continuation. TCO provides several dates beginning May 10, 2017. Although Mr. Gladstone is available, the Crown is not. The next available date of May 15, 2017 is chosen.

May 15, 2017 : There is no transcript available for this case management but from the case management report, it appears as though ultimately five days were authorized for the trial of this matter. There also appears to be some resolution discussions given the Crown’s earlier email to this effect and Mr. Gladstone’s subsequent email to the case management judge about a ‘firm’ answer from his client and his more descriptive email to the Crown. May 19, 2017 : There are email exchanges between Mr. Gladstone and the Crown about resolution discussions given his client’s reluctance in regards to previous offers.

May 23, 2017 : The matters appear in court where Mr. Gladstone reiterates that dates have still not been set. The matter is adjourned to June 12, 2017. There is also an email from TCO, offering continuation dates before the case management judge. All counsel appear to be available June 14, 2017 though Mr. Gladstone indicates it will be difficult and it may be better to request additional dates. There is no confirmation with TCO or request for additional dates from the Crown’s office. Mr.

Gladstone emails that he is still waiting for senior Crown’s response on an issue that may obviate the need for a case management.

June 1-5, 2017: Without any response from the Crown’s office, TCO sends an email asking if a date had been agreed upon. The Crown’sassistant responds, asking for more dates which are provided within minutes. Ultimately, the June 14, 2017 date initially agreed on bycounsel on May 23, 2017, is chosen. June 12, 2017: The matter appears in administrative court where the June 14, 2017 case management is set. June 14, 2017: The case management conference takes place where a change of venue is discussed and agreed upon. The newinformation that the first circuit Crown discussed on February 22, 2017 is still not laid.

Subsequent to June 14, 2017 [23] Although the Crown is not alleging any delay be attributable to defence after June 14, 2017, the following chronologydemonstrates continuing delay related to offering trial dates to defence counsel: June 22, 2017: The day before the matter is next to appear in court, the Crown appearing in administrative court sends an email to seniorCrown and Mr. Gladstone asking for the trial dates as he had not been given any to set.

June 23, 2017: Senior Crown responds to the email, indicating that they are waiting for the Beausejour circuit judge’s authorization totransfer the matter to Winnipeg. This same day, the new circuit Crown writes to the circuit judge who promptly provides his permission.The Crown then asks his assistant to offer dates to Mr. Gladstone. June 26, 2017: This matter appears back in administrative court where it is mentioned that they were in the process of looking at dates. Italso appears that the new information had been laid. The Crown’s assistant offers the following dates where the Crown

schedule and theCrowns are available: April 9-13, 16-20 and 23-27, 2018. Mr. Gladstone responds that he is available April 23-27, 2018. These dates areultimately set at the next court appearance on July 10, 2017. The Law [24] S. 11(

b) of the Charter provides that “any person charged with an offence has the right to be tried within a reasonable time.”The

interpretation of this provision was governed by R. v. Morin, (SCC), [1992] 1 SCR 771 until Jordan was released onJuly 8, 2016.

Since the release of Jordan, there has been a great deal of judicial commentary, not only with respect to the change inperspective, but also with respect to the practical application of the Jordan framework. [25] Without citing exhaustively from Jordan, the decision is clear that there were several shortcomings with the Morin framework,including its unpredictability, difficulty in articulating prejudice as a result of delay, complexity, and retrospective inquiry thatencouraged parties to quibble over the rationalization for vast periods of pre-trial delay, all contributing to limitless variations inpermissible delay and a culture of complacency.

Added to these doctrinal and practical shortcomings was the emergence of increasedcomplexities in the law and court processes. (Jordan, paragraphs 29-45) [26] In Jordan, the Supreme Court embraced a shift from the Morin framework to one where, absent case specific exceptionalcircumstances, there is a presumption that a case should take no more than a certain number of months to bring an accused to trial.

Thispresumptive ceiling encompasses the institutional delay guide in Morin (eight to ten months in Provincial Court and an additional six toeight months in the superior court) and adds additional time to account for other factors that can reasonably contribute to the time it takesto prosecute a case, including the inherent time requirement of the case which comprises procedural requirements to allow for theaccused’s right to make full answer and defence, and the increased complexity of cases since Morin. (Jordan, paragraphs 46-53, and 65)The hope is that this new Jordan framework will focus the s. 11(

b) analysis on issues that matter and encourage all participants in thecriminal justice system to cooperate in achieving reasonably prompt justice. (Jordan, paragraph 5) [27] For matters in Provincial Court, whether a preliminary inquiry or trial, the presumptive ceiling is 18 months. Delay attributableto defence because of an express or implicit waiver, or delay caused solely by the conduct of defence is subtracted from the total time ittakes to bring an action to hearing because defence should not be allowed to benefit from its own delay-causing conduct. (Jordan,paragraphs 60-65) [28] This latter kind of defence delay is often at issue in s. 11(

b) applications, as it is in this case. A review of the case law definesthis type of delay as “those situations where the accused’s acts either directly caused the delay…or the acts of the accused are shown tobe a deliberate and calculated tactic employed to delay the trial” (Jordan, paragraph 63 in reference to R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1227-28); and where the court and the Crown are ready to proceed, but the defence is not. (Jordan,paragraph 64) However, as noted in Jordan, paragraph 65: [D]efence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must beallowed preparation time, even where the court and the Crown are ready to proceed.

In addition, defence applications and requests thatare not frivolous will also generally not count against the defence. [29] As noted in Jordan, procedural requirements are already accounted for in the presumptive ceiling such that it would runcontrary to the accused’s right to make full answer and defence to subtract reasonable preparation time. (Jordan, paragraph 65) [30] What constitutes ‘reasonable procedural requirements’ is not defined in Jordan which refers only generally to defenceapplications and requests.

In my view, Morin assists in understanding what Jordan is referring to when it speaks of ‘reasonableprocedural requirements’. Morin speaks about two different types of delay which can occur in court proceedings – institutional orsystemic delay and inherent time requirements. Institutional or systemic delay, is that delay which results from court resources. It is thatdelay attributable to how long it takes for the court system to accommodate matters. Inherent time requirements, on the other hand, isthat delay which results from the time it takes for the necessary steps within a criminal action.

Morin describes inherent timerequirements as the time that will be “taken up in processing the charge, retention of counsel, applications for bail and other pre-trialprocedures.” (Morin, page 15)

[31] Jordan does not overturn the underlying principles enunciated in Morin but rather adopts a new framework which applies theseunderlying principles. In Jordan the Court is clear that in setting the 18 month presumptive ceiling, it was guided by the Morininstitutional delay guidelines and added “other factors that can reasonably contribute to the time it takes to prosecute a case.” (Jordan,paragraph 52, 53).

These other factors “include the inherent time requirements of the case and the increased complexity of criminal casessince Morin.” (Jordan, paragraph 53) Given that the presumptive ceiling begins at the date of the charge and ends on the last day of trial,that ceiling necessarily includes all steps reasonably required to bring a case to trial. Consequently, it is only delay-causing conduct thatshould be deducted from the presumptive ceiling. R. v.

Cody, 2017 SCC 31 supports this view: [28] In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefittingfrom “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solelyor directly” caused the delay (Jordan, at para. 66). [29] However, not all delay caused by defence conduct should be deducted under this component.

In setting the presumptive ceilings,this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time toprepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the]procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83).

For this reason, “defence actionslegitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65). [32] Cody speaks of “illegitimate” defence delay which includes deliberate and calculated tactics aimed at causing delay, but alsopractices that are not consistent with the culture change demanded in Jordan.

Cody is clear that while an accused has the right to makefull answer and defence, defence counsel must actively advance their client’s right to a trial within a reasonable time, collaborate withCrown counsel when appropriate and use court time efficiently: [30] The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accusedperson; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.

As we said in Jordan,the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolousapplications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, theresulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that — examples. They were notstated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay.

Again, as was made clear in Jordan, itremains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64). [31] The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instancejudges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show acorrespondingly high level of deference thereto.

While trial judges should take care to not second-guess steps taken by defence for thepurposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate todo so. [32] Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it isconducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstancessurrounding the action or conduct may therefore be considered.

The overall number, strength, importance, proximity to the Jordanceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(

b) application if it is designed to delay orif it exhibits marked inefficiency or marked indifference toward delay. [33] As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend toomissions as well as acts (see, for example in another context, R. v. Dixon, (SCC), [1998] 1 S.C.R. 244, at para. 37).Accused persons must bear in mind that a corollary of the s. 11(

b) right “to be tried within a reasonable time” is the responsibility toavoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within areasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138). [34] This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answerand defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients.

What defencecounsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard,while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonabletime — and the need to balance both — in our view, neither right is diminished ​by the deduction of delay caused by illegitimate defenceconduct. [35] We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defencecounsel.

A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacytakes its meaning from the culture change demanded in Jordan. All justice system participants — defence counsel included — must nowaccept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed bys. 11(

b) of the Charter. [33] What constitutes defence delay that should be deducted from the presumptive ceiling will necessarily be a fact driven exercise. [34] Relevant to this particular case are decisions related to moving a matter to plea and accepting the first available trial dateswhere both the Court and the Crown are available. [35] It is clear that Jordan requires every stakeholder to participate in ensuring a matter moves through the system expeditiously.What this means is that accused and defence counsel need to ensure that they are focussed on relevant issues for hearing. R. v.

Mahar,2017 NSPC 9, suggests that time taken to pursue bail or restorative-based courts such as mental health court, will be held against theaccused and deducted from the presumptive ceiling. With respect, as a general principle, I disagree for the reasons already articulatedpreviously in regards to the ‘intake requirements’ referenced in Morin and adopted by Jordan. It may well be that in some circumstances,the actions of the accused in pursuing certain avenues to the expense of moving matters towards hearing, count against him. This was the

case in Mahar, where the record indicated that the accused did not make “any effort to expedite his case.” (Mahar, paragraph 56)However, in my view, this needs to be a factual inquiry. [36] The other defence attributable delay is that incurred where both the Court and the Crown are ready to proceed but defence isnot. Some recent cases have discussed this factor. In R. v. Sepka, 2017 BCPC 356, the Court suggests that it would be unfair to considerthis period of time defence delay to be subtracted from the presumptive ceiling.

In making this finding, the Court cites the pre-Jordanrule in R. v Godin, 2009 SCC 26, where the Supreme Court of Canada held that defence need not be in a state of perpetual availabilitywhen assessing defence delay. Some of the reasoning and comments of the court are interesting in this regard: [43] In R. v. Mouchayleh, 2017 NSCA 51 , a similar issue to the one before this court arose whereby the original trial wasadjourned due to late disclosure. In attempting to set a new trial, a new trial date was offered but not accepted by defence counselbecause of a previous court commitment.

Interestingly, at paragraph 23 of that decision, the Nova Scotia Court of Appeal acknowledgedthat it would be unreasonable to expect counsel to commit to the new trial when he was already scheduled to be in a trial that morning. However, the court went on to note that non-trial court obligations should be rescheduled to give way to trials in the post-Jordanenvironment. (para. 26). [44] As noted in R. v. Albanowski, 2017 ONSC 2260 : Defence counsel are bound by the solicitor/client paradigm. They do not have the option of compromising one client's interests foranother. (para. 25).

In other words, accepting a trial date on which a trial is already scheduled will result in an adjournment of the already-scheduled trial,thereby incurring delay and compromising that client's interest. It becomes a trial scheduling Ponzi scheme where someone eventuallyloses. [45] Furthermore, the practical reality of criminal litigation in Provincial Court, be it for Crown counsel or defence counsel, is that theytypically have multiple cases that they have carriage of. When discussing counsel availability under the pre-Jordan regime, JusticeCromwell stated, in R. v.

Godin: Scheduling requires reasonable availability and reasonable cooperation. It does not, for s. 11(

b) purposes, require defence counsel tohold themselves in a state of perpetual availability. (para. 23). [46] I see no reason why this sentiment should not survive the Jordan realignment. (See Albanowski at paragraph 27.) [47] Defence counsel had reasonable availability and was reasonably cooperative. That reasonable availability was for significantperiods of time prior to the May 29th, 2017 date that was declined just not on the other dates that were offered.

But for reasons beyonddefence counsel's control, trial time was not offered during those periods of availability. [48] In conclusion, I would not deduct from the total time calculation the period of time between May 29th, 2017 trial date when defencecounsel was not available, and the July 17th, 2017 trial date. [37] With respect, I disagree with the conclusions drawn in Sepka. Not only is it inconsistent with the pronouncements in Jordan, R.v. Williamson, 2016 SCC 28 at paragraphs 21-22 and R. v.

Schenkels, 2017 MBCA 62 at paragraphs 23 and 53, it is also inconsistentwith the new Jordan framework for assessing unreasonable delay. The 18 month presumptive ceiling for matters in Provincial Courttakes into consideration institutional delay and other factors which are necessary to bring a matter to hearing.

While in some cases, thefirst day available for hearing may not be reasonable in the particular circumstances of a given case due to the procedural requirements ofthat case,[1] when a matter is ready for trial and the Court and Crown are available to proceed, the unavailability of defence counselshould count towards defence delay.

This is by no means a penalty against defence counsel, it is simply a matter of applying the Jordanprinciple that a matter should take a maximum of 18 months. [38] In my view, this subtraction from the total delay does not necessarily preclude defence from potentially advancing an argumentthat they were ready to proceed even though the Court or the Crown was not, in instances, for example, where the net delay falls below18 months.

Indeed, defence may have an argument that the matter should be stayed if it had taken meaningful and sustained steps,including being available for hearing when the Crown and/or the Court were not, such that the time requirements of the case markedlyexceeded the reasonable time requirements of the case. This might also be the case where, for example, defence counsel was initiallyavailable for the hearing date in Provincial Court but needed to later adjourn it because they were required to accept a hearing date inanother court.

As referred to in Sepka, these kinds of practices create strains on other matters in the justice system which in turn can leadto the delay Jordan seeks to address. Analysis [39] In considering the law and the particular facts of this case, I am deducting 14 days (the time when the Court and Crown wereavailable for hearing and defence was not) from the total delay of 22 months, seven days for a net delay of 21 months, 21 days.

I am notdeducting any further time as defence delay. [40] The Crown urges this Court to deduct six months, two days from December 12, 2016 to June 14, 2017, submitting that this wasthe period of time the Crown was ready to set dates and had requested the matter be peremptory for plea until defence finally made anelection and it was possible to set dates.

I have difficulty with this submission for several reasons. [41] First, the evidence before the Court suggests that Ewanochko was prepared to enter a plea on December 12, 2016 but that hislawyer at the time, second counsel, was unable to get in touch with the first circuit Crown who was on medical leave. The Crown did notfile any evidence from either the assigned first circuit Crown or the Crown that was replacing her to rebut this evidence. Next, theevidence indicates that Ewanochko made an election to be tried in Provincial Court when he appeared at the first case management onFebruary 22, 2017.

It was the case management judge and the first circuit Crown who ultimately did not set dates given the multiple

outstanding issues. Further, when Mr. Gladstone became counsel of record, the evidence shows that he was consistently asking the Crown for trial dates around April 21, 2017. [ 42 ] It is true that the first circuit Crown indicated several times that she was concerned with delay and took steps to try to move the matter toward entering pleas. The issue I have in this particular case is that I cannot hold defence solely responsible for that not happening given the history of proceedings.

The protracted bail proceedings and the communication problems contributed greatly to the delay, neither of which lay solely at the feet of defence. The significant amount of time the bail review took in Queen’s Bench, the Crown’s insistence on a special bail in Provincial Court, the failure to offer, then set special bail hearing dates in a timely manner, the refusal of the Crown to set a hearing date in Provincial Court to seek clarification or argue jurisdiction to do so, are some of the examples of how the bail process significantly contributed to delay.

While bail in and of itself should not necessarily prevent defence from moving a matter forward to trial, in the circumstances of this particular case, the issues slowing the bail process down appear to have contributed overall to the delay. [ 43 ] The communication issues, particularly with respect to when the first circuit Crown was on medical leave, the offering of dates by the Crown, and the change in Crown, is also problematic. As regards the first issue, I want to be clear that I do not blame the Crown for this but simply indicate that I cannot find that it is delay solely attributable to defence.

Defence counsel representing accused in circuit locations where they do not regularly appear can add to delay for several reasons. It also prevents the Court from ensuring matters move forward in a timely manner. In this particular case, the first circuit Crown seems to have had concerns of this nature given her advice to counsel that she was not prepared to continue to speak to the matter on her behalf. However, the evidence suggests that this matter was moving towards plea and it was simply a matter of finding dates.

No further mention was made about entering pleas until February, 2017, when it appeared before the case management judge. [ 44 ] There is also nothing in the evidence to suggest that Ewanochko deliberately took steps or took any steps that were not designed to move his matters forward. Instead, the evidence suggests that Ewanochko was frustrated with his representation and the time it took to have his matters heard. Though he changed counsel two times, this change in counsel did not slow down any hearing dates.

It may have contributed to the delay in that discussions which began with second counsel needed to be had with Mr. Gladstone. However, once again, not only is there no clear period of time that can be pinpointed in this regard, the Crown changed as well which also required someone else to review the file before beginning discussions again. [ 45 ] In the circumstances, I cannot find that Ewanochko is liable for any defence delay other than not being available for earlier trial dates when both the Court and the Crown were.

As was the finding in Jordan , I find that both Crown and defence share responsibility for the delay. [ 46 ] As a final remark, though the Crown did not advance a transitional case argument under the Morin framework, I think it clear in the circumstances that the majority of Ewanochko’s case is post- Jordan and that this jurisdiction was already attempting several measures to address delay, such as the case management project and increased oversight in scheduling by TCO. This case demonstrates how effective those measures were when accessed by counsel.

Ewanochko’s charges, though serious in that they relate to firearms, are not complicated. In fact, they are relatively straightforward and will rely on an assessment of credibility of the witnesses and an application of the law on warrantless searches. The prejudice to Ewanochko is great particularly given the 11 months in pre-trial detention when he was presumed innocent. [ 47 ] For all of the reasons, I am granting Ewanochko’s application for a stay of proceedings pursuant to s. 24(1) of the Charter on the grounds that his right to a trial within a reasonable delay guaranteed under s. 11 (

b) was breached. “Original signed by:” Judge Lee Ann Martin