R. v. Dutra Date:, 2016 BCPC 448

Citation: R. v. Dutra Date: 20161216 2016 BCPC 448 File No: 80366 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RACHEL EMILY ANNE DUTRA RULING RE:

SECTION 11(

b) APPLICATION OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: F. Lepine Counsel for the Accused: M. Shamess Place of Hearing: Abbotsford , B.C. Dates of Hearing: November 23, 24, 25, December 9, 2016 Date of Judgment: December 16, 2016

[ 1 ] THE COURT : Has the Supreme Court of Canada decision of R. v. Jordan, 2016 SCC 27 , changed the law to such an extent that an accused who solely is responsible for the need for three, possibly four trial dates, is now entitled to a stay of proceedings for unreasonable delay pursuant to s. 11(

b) of the Charter ? The short answer is no. In my view, this accused is no more entitled to a stay now than she would have been under Morin . [ 2 ] The Information charging Ms. Dutra with two counts of PPT was sworn on May 1st, 2014. Three days of trial were needed and the first set of trial dates was scheduled for September 2015, a period of 16 months. Defence counsel was double booked so a defence adjournment was granted with the second set of trial dates just one month later in October 2015, a total period of 17 months. At that trial, the accused failed to appear and her then counsel withdrew.

I find as fact the accused had been notified of the date by letter from her counsel sent to the stable address for contact which she had provided. In any event, after further delay to get new counsel, in February 2016 the third set of trial dates was scheduled for November 2016, being nine months from the re-arraignment to the third trial dates, or 30 months in total. For the sake of completeness, I note defence again obtained an adjournment of the third trial date in order to bring on this delay application.

However, that included an explicit waiver from November 2016 until the start date of the fourth trial, if any. [ 3 ] Following the new guidelines in Jordan , the total delay from the dates of the Information to the end of the third trial date is 30 months. Defence delay must be discounted or subtracted.

There are no waivers up to November 2016 but there is significant delay caused solely or directly by the conduct of the defence. [ 4 ] Defence counsel acknowledges four-and-a-half months of defence caused delay, being the time from the first trial date to the second trial date and from the failure to appear at the second trial date until the re-arraignment. She submits 26-and-a-half months still remains which greatly exceed the presumptive ceiling for Provincial Court of 18 months.

To accede to this submission would be to ignore the fact that the accused obtained not one but two three-day trials within the 18 month period. She and the defence alone are responsible for the trial not concluding within the presumptive ceiling and the need for the third and even a fourth set of trial dates. [ 5 ] Certain comments from the Supreme Court of Canada in Jordan are very much on point. At paragraph 60: The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin : “The purpose of s. 11 (

b) is to expedite trials and minimize prejudice and not to avoid trials on the merit" (p. 802). As well, at paragraph 21, but I leave out the reference to being guilty of the charge: ...we recognize that some accused persons...are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole.

Section 11(

b) was not intended to be a sword to frustrate the ends of justice ( Morin , at pp. 801- 2). [ 6 ] Once defence-caused delay is subtracted, being all of the delay from the first trial date on, the net delay in this case is 16 months, falling below the presumptive ceiling. The defence would then have the onus to show that the delay is unreasonable, which they have failed to do. [ 7 ] The application for a stay of proceedings pursuant to s. 11(

b) is dismissed. The Honourable Judge C.J. Rounthwaite Provincial Court of British Columbia