R v Isaac, 2023 MBPC 66

CITATION: R v Isaac, 2023 MBPC 66 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) K. Henley ) ) for the Crown - and – ) ) ) Darnel Isaac ) ) B. Sinder and F. Aiello for the Accused ) ) ) Reasons for Decision ) Delivered: November 30, 2023 Cornick, P.J. Introduction [ 1 ] Mr. Isaac is charged with possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime under $5,000. The investigation and arrest of Mr. Isaac stemmed from confidential source information received by the police.

After filing materials for a voir dire , defence counsel received disclosure of a narrative that lead to an application for an adjournment. The application was granted and the trial dates were rescheduled. Defence now brings an application for unreasonable delay pursuant to sections 11(

b) and 24(1) of the Charter of Rights and Freedoms. Background [ 2 ] On August 11, 2023, this court heard Mr. Isaac’s application. The application was brought shortly before the trial was scheduled to commence and the court did not have time to arrive at a decision prior to the scheduled trial dates. In order to accommodate the process without losing court time or delaying the matter further I also began to hear evidence in relation to a

section 8 and 9 application, which according to counsel was likely determinative of the trial. [ 3 ] Due to illness, the court did not finish hearing argument in that voir dire and it was adjourned to today’s date for a continuation. However, given the length of the adjournment, the court has been able to complete its decision with respect to the delay application. The correct order of proceedings would have been to hear and decide the delay application prior to the start of the trial proper in any event (See R v Byron , 2001 MBCA 81 at para 17 ).

Disposition of criminal matters should not be delivered in the alternative nor should counsel and litigants be put through the time, expense and inconvenience of a full hearing where the issue might be disposed of on a pre-trial basis. [ 4 ] Timelines were unduly compressed with the filing of the delay motion and the Court had to make best use of the time it did have.

Delivering this decision now (however awkward) is the only way to correct the order of proceedings to the extent possible. [ 5 ] This application proceeded by way of an Agreed Statement of Facts attaching all relevant transcripts and reports for adjournments and Case Management Conferences. It is not disputed that the Applicant’s prosecution began on November 5, 2021 and that is the correct start date for the analysis pursuant to R v Jordan, 2016 SCC 27 . The trial was set to commence with a voir dire on May 17 and 18, 2023, but did not proceed.

Rather, Defence made an application for an adjournment, which was granted. A new date was set for September 6 and 7, 2023. [ 6 ] Defence counsel filed their notice and relevant materials challenging Mr. Isaac’s arrest and search incident to it on April 24, 2023. Specifically, defence counsel brought into question the credibility of the confidential source. Upon reviewing defence materials, the Crown made inquiries and it became apparent that Cst. Stevenson’s source handler narrative had not been disclosed.

This single-page narrative, attached to the Affidavit of Charlene Clark at Tab 7 of the Agreed Statement of Facts, outlines the basis for the confidential source’s credibility. It was sent to defence by email on April 24, 2023.

[ 7 ] The source of confusion appears to be the fact that Cst. Stevenson also prepared a shared narrative with his partner. This document was disclosed within days of Mr. Isaac’s arrest. Cst. Stevenson’s source handler narrative remained undisclosed until April 24, 2023. The Crown itself had been unaware of the existence of this additional narrative until defence materials were reviewed and further inquires were made. [ 8 ] Defence counsel sought to adjourn the trial that was set to commence on May 17, 2023. Defence filed their motion for an adjournment on May 2, 2023.

The parties appeared before Judge Pullan on May 8, 2023. [ 9 ] Defence counsel explained they were relying on the absence of information about the credibility of the confidential source as a basis for their

section 8 and 9 challenge. The disclosure of the notes and narratives they did receive did not mention the source handler narrative and defence took the position that they did not know to ask for it because they did not know it existed. Having received disclosure that spoke to the credibility of the source meant that their strategy with respect to

section 8 and 9 might have to be modified or abandoned. (See Tab F of the Affidavit of Katherine Wilkinson, Transcript of Proceedings May 8, 2023 p T15 lines 13-41 and p T 20, lines 10-36). [ 10 ] At the same hearing on May 8, 2023 Judge Pullan inquired about delay and defence counsel indicated that they did not have instructions on that issue. The adjournment was granted. The matter was re-set and on June 16, 2023, defence counsel filed the

Section 11(

b) motion. A further case management conference was held on July 5, 2023 to discuss how to

schedule a hearing prior to the first day of the voir dire on September 6, 2023. Issue [ 11 ] The total delay from the date the information was sworn to the trial date of November 30, 2023 is 24 months and 24 days. Parties agree that the delay this court should assess is the period between the May 18, 2023 and the November 30, 2023 trial date. [ 12 ] Parties agree that the determinative issue in this application is whether Defence counsel’s May 8, 2023 application for an adjournment was legitimate.

If this Court finds that the application for an adjournment was legitimate then the trial has in fact commenced outside of the prescribed Jordan timelines and the delay is unreasonable. The Crown has not suggested there are exceptional circumstances to consider. [ 13 ] Should this court find that the adjournment application was not legitimate then the delay between the May dates and the September dates is defence delay bringing net delay to 18 months and 14 days. A further period in excess of 14 days can also be attributed to defence in light of the trial dates selected where earlier ones were available.

As such, the net delay would be below the presumptive ceiling and the application fails. Defence has not argued unreasonable delay below the presumptive 18-month ceiling. The Jordan Framework and the issue of “Legitimacy” [ 14 ] R v Jordan , 2016 SCC 27 reframed how applications pursuant to

section 11(

b) are to be analysed. Matters proceeding in Provincial court have a presumptive 18-month ceiling. The Supreme Court made it clear that this new framework was meant to encourage all criminal justice system participants “to cooperate in achieving reasonably prompt justice, with a view to fulfilling

section 11(b)’s important objectives” (see para 5). [ 15 ] Delay beyond the 18-month ceiling is presumptively unreasonable. However delay occasioned by the defence conduct must be subtracted from the total delay (See Jordan para 60 ). Delay attributable to defence will typically include occasions where the Crown and Court are ready to proceed but the defence is not. The Supreme Court also refers to frivolous applications and requests as delay attributable to the defence. [ 16 ] R v Cody, 2017 SCC 31 is a recommitment by the Supreme Court to the framework it created in R v. Jordan .

It also expands on the notion of delay caused by defence conduct and introduced the concept of legitimate and illegitimate conduct. (See para 30). [ 17 ] The determination of whether defence action is legitimate is not an “exact science”, but rather a highly discretionary decision first instance judges are in the best position to make.

While trial judges should be cautious in second guessing steps taken by defence for the purpose of responding to the charges, they should also not to be reticent in characterizing defence action as illegitimate where it is appropriate to do so (See Cody paragraph 31 ). [ 18 ] In assessing the legitimacy of defence conduct in the context of delay applications, trial courts should consider both the substance and the procedure that was adopted. Factors include adherence to notice, timelines, and filing deadlines.

Trial courts should also consider whether applications brought by defence were designed to delay, if they exhibited marked inefficiency and indifference towards delay, or if there was a lack of action by defence in advancing the matter. The Supreme Court recognized the tension between the right to make full answer and defence and the right to be tried within a reasonable time. While neither right is diminished, the Court called for balance.

Defence must find efficiencies and modify old habits to ensure both rights are adhered to while doing their part to achieve the timely hearing of criminal matters (See Cody paras 31-34 ). [ 19 ] The Supreme Court stressed that illegitimacy of conduct is not necessarily tied to professional or ethical misconduct. Rather, the issue of legitimacy is tethered to the changes in culture the Supreme Court demanded in Jordan . Many practices that were commonplace, undertaken as a matter of course, or simply tolerated pre- Jordan are no longer acceptable.

Analysis [ 20 ] Before resolving the main issue with respect to delay and the legitimacy of defence counsel’s adjournment application this Court must first address defence counsel’s alternative argument with respect to issue estoppel. [ 21 ] Defence argued that because Judge Pullan granted the adjournment and said that counsel acted diligently, the Crown is barred by issue estoppel from arguing that defence conduct in not making further disclosure requests and seeking an adjournment is illegitimate.

[22] R v Mahalingan, 2008 SCC 63 sets out the requirements for issue estoppel: 1. The issue must be the same as the one decided in the prior decision; 2. The prior judicial decision must have been final; 3. And the parties to both proceedings are the same. [23] The key distinguishing feature in Mahalingan is that the Supreme Court appears to equate prior “decisions” or “proceedings”with trials. Essentially, issues decided in the accused’s favour in a previous trial cannot be litigated again in subsequent trials. [24] An adjournment is an interlocutory decision within a proceeding or a trial.

It is often an application that is decided based onhearsay and limited materials if any. After reviewing the May 8, 2023 transcripts, it is clear that the issue of delay in the context of asection 11(

b) application did not arise. Defense counsel did not have instructions on the matter. The issue of legitimacy of theadjournment in the context of a delay application was not before the Court, and the Court did not apply the relevant considerationsoutlined in Cody to its decision to grant an adjournment of the trial.

All of this properly so, since the issue that was before the Court onMay 8, 2023 was markedly distinct from the issue that is before the Court today. [25] As such, my analysis on the legitimacy of the defence’s application for an adjournment will continue as it can be properlydecided by this Court. [26] I find that defence’s application for an adjournment of the trial set to commence on May 17 and 18, 2023 does not meet thecriteria outlined in Cody for legitimate defence action for the following reasons. [27] In terms of the substance of the conduct, defence challenged the validity of the accused’s warrantless arrest and the searchincident to said arrest.

Based on the submissions made by defence counsel on August 11, 2023 and May 8, 2023 it appears that the cruxof their argument was going to be the lack of information about the source’s credibility. [28] If the success of the

section 8 and 9 arguments was grounded on the lack of information available about the confidentialsource, counsel should have made sure this was absolutely the case by making a disclosure request specifically requesting informationabout the credibility. [29] Defence argued that this request was implied when they requested the source handler notes at the Case ManagementConference on May 31, 2022. The memo specifies that the request is for notes “regarding the information received”.

There is no mentionin the Case Management report about the credibility of the informant. [30] The law with respect to validating source information remains relatively unchanged.

The leading case in that regard remains Rv Debot (SCC), [1989] 2 SCR 1140 and the lens through which source information is analysed is still the three C’s:whether information is credible, compelling and corroborated. [31] Upon receiving the informant handler notes on November 8, 2022, (See Tab 7 of the Agreed Statement of Facts, Affidavit ofCharlene Clark) defence felt they were missing disclosure of the credibility component pertaining to the confidential source.

There wasnever any follow up on this lack of information before relying on it in their materials filed on April 24, 2023. [32] R v Visscher, 2014 MBPC 43 concerns an application under 24(1) for the Crown’s failure to disclose. Despite the distinct issue,the Court made some helpful comments about defence counsel’s diligence, which are equally applicable to this situation.

At paragraph22, the court found that counsel was diligent in making an initial disclosure request, but did not point out the shortcomings in thedisclosure once it was received. [33] Similarly, in this matter, counsel made a diligent initial request for the source handler notes hoping to find all the relevantinformation in that document. When the information was lacking there was no further inquiry despite the fact that defence’s mainapproach to this matter was a

section 8 and

section 9 challenge. [34] The court in Visscher said, “While the obligation to provide disclosure rests with the Crown, defense counsel cannot remainpassive in the face of any deficiencies.” (See para 23).

Similarly, in this matter, where a disclosure request by implication was not met, itshould have been made overtly in order to be truly diligent. [35] This passive approach to disclosure on an issue defence has characterized as vital to their case is the type of conductcontemplated in both Jordan and Cody that results in the attribution and allocation of delay to defence. (See R v Pugh, 2021 BCCA 293,paras 99-100). [36] Defence counsel relies on the argument that a review of the disclosure they had received did not suggest the existence of Cst.Stevenson’s source handler narrative.

I have not been presented with any precedent that suggests that further disclosure requests need tobe grounded in existing disclosure. Many defence requests for disclosures will sometimes result in the creation of disclosure such aswitness “can says” or additional police investigation. [37] Defense counsel did not need to know about the existence of the source handler narrative specifically in order to ask for moreinformation about the source.

The fact that there is a source handler is a clear indication that information about the credibility of theconfidential source is available. [38] I have also considered the nature and the extent of the disclosure and the procedure undertaken following receipt of thatdisclosure. The narrative is one page long and the new information revealed is found under the heading “Informant Qualification” andconsists of five bullet points. The confidential source had already been described as “proven and reliable” in the previously disclosednotes and narratives.

[ 39 ] This is not to say that a single page of disclosure is always incapable of changing the course of a trial. However, in this case, the accused’s jeopardy did not change, the witnesses did not change, and the applicable law did not change. The only thing that may have changed was the likelihood that the Charter challenge would succeed. [ 40 ] At the May 8, 2023 adjournment hearing, the Crown suggested that argument on the voir dire could be delayed after the evidence of the informant handler was heard to allow for supplemental materials (if necessary) and written argument.

The idea was dismissed as unworkable by defence as there was no way they could pivot in such a short period. [ 41 ] Defence counsel are expected to make themselves reasonably available but are not expected to drop everything to mitigate delay. The first two Case Management Conference reports suggested a 6 to 8 week period between the voir dire and the trial date.

Defence counsel did not elaborate on why this period of time was insufficient to accomplish what the Crown was suggesting. [ 42 ] Defence characterized this as a situation where their case was returning to square one and that all other angles of this case would have to be reviewed with the accused. [ 43 ] According to the first two Case Management Conference reports the case centered on the voir dire and a potential issue of possession. Given that a third day for a substantive trial was set it appears that the issue of possession was still live.

It was not made clear if or how the late disclosure affected the possession issue such that this would have to be revisited with the accused. On its face, it appears to be unrelated. [ 44 ] If other avenues of attack on the credibility of the confidential source needed to be considered the approach presented by the Crown allowed for that. As the Crown suggested in argument, this was more advantageous to the accused as it allowed supplemental materials to be filed and arguments to be made on actual evidence rather than anticipated evidence.

Defence counsel had not meaningfully turned their minds to delay on May 8 th , 2023 and they were inflexible with respect to pursuing an alternative that would have mitigated or even completely avoided any delay. [ 45 ] Defence emphasized the accused’s right to make full answer and defence. Both Jordan and Cody make it clear that while timely hearing of matters should not diminish an accused’s right to make full answer and defence the change in culture demanded by the Supreme Court requires an effort on the part of defence counsel to balance those two principles.

There may have been a time pre- Jordan where the default response to late disclosure was always an adjournment. Adjournments are still the most likely remedy for late disclosure, but the Supreme Court requires critical and creative thought before simply defaulting to that option. In this case, the effort to effect balance was minimal at best, as the issue of delay was not meaningfully raised until the May 18, 2023 Case Management Conference. Conclusion [ 46 ] This court has found a lack of diligence on the part of defence counsel in pursuing the disclosure in question.

Further, this court finds that the application for an adjournment exhibited marked inefficiency and indifference towards delay. As such, defence’s request for an adjournment failed to meet the test for legitimacy outlined in R v Cody . Given how counsel jointly framed the issue to be decided and the calculation for net delay, the application pursuant to

section 11(

b) and 24(1) of the Charter of Rights and Freedoms is dismissed. “Original signed by:” Cornick, P.J.