His Majesty the King - v. -, 2023 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2023 SKPC 42 Date: June 29, 2023 Information: Y402318 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: His Majesty the King - and - E.C.O. Appearing: C. Esmond For the Crown B.

Campbell For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . DECISION ON THE VOIR DIRE K.A. LANG , J I. INTRODUCTION [ 1 ] The Accused E.C.O. [ E.C.O .] has been charged with two separate historic sexual assaults relating to two different victims.

[ 2 ] The Accused, through his legal counsel, has filed a Charter challenge alleging violations of s. 11(

b) of the Charter (to be tried within a reasonable time) and is requesting as a remedy a stay of proceedings pursuant to s. 24(1) of the Charter . (This is typically referred to as a “ Jordan application – a reference to the case of R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ]). [ 3 ] The Jordan application was heard on the first day of trial, June 1, 2023. The Court entered into a voir dire to consider the application. Only one witness was called to testify on the voir dire ; that being Cst. Vansteelandt. The matter was adjourned to today’s date for a decision. II.

ISSUE [ 4 ] The issues are fairly straightforward: 1. When does the “clock start ticking” with respect to the 18 months to conduct a trial as set out in R v Jordan ?; 2. Has the presumptive ceiling of 18 months, laid out in R v Jordan , been reached? III. ADMISSIONS BY COUNSEL 1. E.C.O. applied for Legal Aid on his first court appearance of February 27, 2023; 2. A Defence disclosure letter was sent to and received by the Crown on February 28, 2023; 3. The Crown sent Defence a disclosure package on March 1, 2023; 4.

On March 6, 2023 Defence sent a second disclosure request to Crown relating to a possible Jordan application. Defence was requesting the original Undertaking which became Exhibit D-1 on the voir dire . IV. POSITION OF THE PARTIES Defence [ 5 ] Defence took the position that the Jordan clock started “ticking” from the date of arrest and release of E.C.O. – October 21, 2021. As such the presumptive ceiling would be met as a trial could not have been conducted within 18 months from that date. This was the only position argued by the Defence relating to its Charter application.

Crown [ 6 ] The Crown took the position that the Jordan clock started “ticking” from the date the Information was sworn – February 19, 2023. The Crown has always taken the position that the swearing of the Information is when the clock started ticking and therefore felt it had plenty of time to conduct the trial. It had not really put its mind to whether a trial could have still been conducted within 18 months if the October 21, 2021 date, suggested by Defence, was the start date. The Crown did say it could have run a trial prior to the 18 months either way.

The Crown further argued that if pre-charge delay was a factor, it was not relevant here. V. FACTS [ 7 ] On the voir dire the Court heard from one witness, Cst. Vansteelandt. Cst. Vansteelandt’s testimony was accepted by both the Crown and Defence as well as the Court. The facts therefore are not in dispute. The relevant timeline of events prepared from Cst. Vansteelandt’s testimony, various documents placed into evidence, admissions of legal counsel, and the court record itself, is as follows:

DATE ACTION TAKEN SOURCE October 12, 2021 Cst. Vansteelandt started a historic sexual assault investigation relating to the Accused. Cst. Vansteelandt believed that grounds to arrest existed. Cst. Vansteelandt October 21, 2021 Accused attended the RCMP detachment and was immediately arrested and a warned statement was provided to police. Accused is released on an Undertaking (Exhibit D- 1) with, inter alia , conditions of non-contact and not attend on either of the two victims and a court date of November 18, 2021 was set. No Information was yet sworn. Cst. Vansteelandt November 5, 2021 Cst.

Vansteelandt spoke to the Crown prosecutor about the case and was advised that “best practices” with respect to historic sexual assaults is to have the Crown review the file before laying charges. Cst. Vansteelandt was told to contact the Accused and advise him that the Undertaking was no longer valid and there was no need to attend court. Cst. Vansteelandt November 14, 2021 Cst.

Vansteelandt tracked down the Accused and told him: - they were holding off on charges; - best practice was to allow Crown to review the file first; - the Accused was not required to attend court; - conditions of release were no longer enforceable against the Accused; - told Accused he could be served with a “summons” at a later date. Cst. Vansteelandt January 2023 Crown approved two single count charges of sexual assault against the Accused. Cst. Vansteelandt January 24, 2023 Cst.

Vansteelandt attended upon Accused – arrested Accused and released him on an “Undertaking – Young Person” with the same no contact and not attend conditions as before and a return date in court of February 27, 2023. Cst. Vansteelandt; Court file. February 19, 2023 Information Y402318 sworn charging the Accused with two single counts of sexual assault. Cst. Vansteelandt; Court file.

Note: An Information relating to the first arrest of the Accused had been prepared but never sworn. Information Y402318 was the first Information sworn. The two Informations would have looked identical except for amendments to the “charges” based on the Crown’s review. February 27, 2023 First court appearance of Accused. Legal Aid Defence counsel retained. Matter adjourned to March 6, 2023 – No reasons given. Court file; Counsel admissions. February 28, 2023 Disclosure letter sent by Defence counsel and received by the Crown. Counsel admissions.

March 1, 2023 Disclosure package sent to Defence counsel by Crown and received. Counsel admissions. March 6, 2023 Defence requested further “disclosure” Re: Exhibit D-1 – original Undertaking – relating to possible Jordan application. Matter adjourned to March 20, 2023 at request of Defence. Court file; Counsel admissions. March 20, 2023 Defence request for adjournment to April 3, 2023 – no reason given by agent for Defence counsel Court file. April 3, 2023 Defence request for adjournment to April 6, 2023 – no reason provided. Court file.

April 6, 2023 Defence request for adjournment to April 13, 2023 – for possible Jordan application. Court file. April 12, 2023 Defence Charter notice filed with Court (wrong form and not properly served). Court file. April. 13, 2023 Adjourned to May 15, 2023 for first day of trial to hear Jordan application Court file. May 15, 2023 Matter adjourned to June 1, 2023 to allow for proper Charter notice to be filed and properly served. Court file. May 16, 2023 Proper Charter notice filed with the Court with proper proof of service. Court file.

June 1, 2023 First day of trial – Court entered into a voir dire and heard the Jordan application. Court file. VI. THE LAW [ 8 ] The Jordan case is the landmark Supreme Court decision which outlines the analysis required relating to Charter applications brought to the Court under s. 11(

b) claiming unreasonable delay. Jordan replaced earlier frameworks which were seen to be too unpredictable, confusing and complex. The headnote

summary from Jordan is a good synopsis of that case. It states: A new framework is therefore required for applying s. 11( b ). This framework is intended to focus the s. 11(

b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11( b )’s important objectives. At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry).

Delay attributable to or waived by the defence does not count towards the presumptive ceiling. Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis ofexceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown’s control inthat (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. … Below the presumptive ceiling, however, the burden is on the defence to show that the delay is unreasonable.

To do so, the defencemust establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case tookmarkedly longer than it reasonably should have. Absent these two factors, the s. 11(

b) application must fail. Stays beneath thepresumptive ceiling should only be granted in clear cases. As to the first factor, while the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence toshow that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put theCrown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(

b) application)reasonably and expeditiously. VII. ANALYSIS [9] As this matter is being tried in Youth Court at the Provincial Court, the presumptive ceiling of 18 month applies. Applyingthe presumptive ceiling of 18 months to the E.C.O. case is challenging in that the most contentious issue between Defence and theCrown is when the Jordan clock should start to “tick”. WHEN DOES THE JORDAN CLOCK START TICKING? [10] Clearly there are conflicting cases in this regard.

E.C.O., through legal counsel has provided a number of lower courtdecisions urging me to follow them and find that the clock started ticking from the date E.C.O. was arrested and released on anundertaking. [11] Having read all of the material provided by the Crown and Defence it is my view that this issue has been decided by thehigher courts. [12] I rely on the decision of R v C.B., 2022 NSPC 47. I appreciate that this decision itself is not binding upon me but the facts aresimilar and cases quoted within this case are a good

summary of the law on this issue as set out by the Supreme Court of Canada andfollowed by the Ontario Court of Appeal in R v Allison, 2022 ONCA 329 at paras 39-44, 414 CCC (3d) 150 [Allison] and the NewBrunswick Court of Appeal in R v Doak, 2022 NBCA 48 at para 15, 417 CCC (3d) 530 [Doak]. I quote from the R v C.B. (supra)decision as follows starting at paragraph 5: Issue 1 — When does the Jordan clock start running? [5] The Defence argues that the clock for s. 11(

b) should start with the arrest and release on conditions rather than with the swearingof the Information. The Defence does not dispute that the Supreme Court has clearly stated that the clock for unreasonable delay beginswhen the accused is charged, which is when the Information is sworn (R. v. Kalanj, (SCC), [1989] 1 S.C.R. 1594, atpara. 16; and R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, at para. 95). [6] However, the Defence notes that these authorities are now 30 years old and submits that this should be revisited.

In making thatargument, the Defence relies on lower court decisions from Ontario that suggest that, post Jordan, the approach to delay is more flexibleand where there is significant delay between arrest and the swearing of the Information, the earlier date should be used to calculate delay(see, R. v. Gleiser, 2017 ONSC 2858, at para. 18; and R. v. Luoma, 2016 ONCJ 670). [7] This approach has however been rejected by the Ontario Court of Appeal (R. v. Allison, 2022 ONCA 329, paras. 39-44) and theNew Brunswick Court of Appeal (R. v. Doak, 2022 NBCA 48, para. 15).

In both Allison and Doak, the Courts reliedon Kalanj and Rahey to say that the clock starts when the Information is sworn. [8] Further, as was discussed in Allison, in Jordan, the Supreme Court could itself have revisited this point but did not. Instead, itrepeatedly said that the relevant time period for calculating delay was from "the charge to the actual or anticipated end of trial" (paras. 47- 49).

[9] Finally, in R. v. J.F. (2022 SCC 17), the Supreme Court of Canada addressed what it called the "temporal scope of the right to betried within a reasonable time" in the context of a retrial. The Court was not specifically required to comment on the period betweenarrest and the Information being sworn but in discussing the protection offered by s. 11(b), the Court said "[s]ection 11(

b) protects anaccused only while they have the status of a person charged with an offence" and "[a] person is charged with an offence from the timethe charge is laid" (para. 23). In the latter statement, the Court relied on its earlier decision in Kalanj (para. 23). [10] In this case, the delay between C.B.'s arrest and the Information being sworn was almost three months. I appreciate that for mostaccused, the negative consequences associated with being charged with a criminal offence begin immediately upon arrest.

Many,including C.B., are subject to restrictive release conditions and most will experience anxiety. However, the Supreme Court of Canada hasrepeatedly and recently interpreted s. 11(

b) as applying to delay during the time the accused is under charge and that period begins whenthe "charge is laid", meaning when the Information is sworn. I cannot ignore such a clear statement of the law from the Supreme Courtof Canada. [13] In the Ontario Court of Appeal decision of R v Allison, the Court specifically addressed this issue stating at paragraphs 35 – 43as follows: [35] The appellant argues that the application judge should have used the date of his arrest rather than the date the information wassworn as the start date for calculating the total delay.

This was a seven-week period. [36] In making this argument, the appellant relies on a number of lower court decisions where courts have used this approach whenthere has been a significant delay between the date of the arrest and the date the information was sworn: R. v. Gleiser, 2017 ONSC 2858,at para. 18; R. v. Albadry, 2018 ONCJ 114, at para. 9; R. v. Bolé, 2019 ONCJ 141, at paras. 22–24; R. v. Gill, 2020 ONCJ 124, at paras.24–30; R. v. Elakrat, 2020 ONCJ 343, at para. 14; and R. v.

Creglia, 2018 ONCJ 262, at fn. 2. [37] The appellant argues that this approach is consistent with s. 505 of the Criminal Code, R.S.C., 1985 c. C - 46, which requiresthat "an information relating to the offence alleged to have been committed by the accused . . . shall be laid before a justice of thepeace as soon as practicable" [emphasis added] after a notice of appearance has been issued to an accused or an accused has beenreleased from custody. [38] He also argues that this proposed approach is more consistent with the principles set out in Jordan .

He proposes that the date ofthe arrest should not be the start date in all cases but that, if an accused raises concerns about a delay between the date of arrest and thedate the information is sworn, the Crown should have to demonstrate that the delay was reasonable in the circumstances of the case. Heargues that, in this case, there does not appear to be a reasonable explanation for the delay. [39] I reject this argument for four reasons. [40] First, this argument was not made in the court below: Kaiman v.

Graham, 2009 ONCA 77 at para. 18. [41] Second, despite the lower court decisions cited by the appellant, there is binding authority from the Supreme Court of Canadathat addresses this point directly. In R. v. Kalanj, (SCC), [1989] 1 S.C.R. 1594, the majority of the Supreme Court reliedon the text of s. 11(

b) of the Charter, which states that "any person charged with an offence . . . has the right to be tried within areasonable time" [emphasis added], to hold that the calculation of delay starts from the date of the charge rather than the date of thearrest. [42] Third, in Jordan , the Supreme Court could have revisited this issue in setting the framework for calculating delay but did not doso. Instead, the Court affirmed, at paras. 47-49, that the time for calculating delay runs from "the charge to the actual or anticipated endof trial" [emphasis added]. As noted by Code J. in R. v.

Gandhi, 2016 ONSC 5612, at para. 4, "[a]lthough the majority [in Jordan ]changed fundamental aspects of the prior s. 11(

b) framework, there was no indication that the Court wished to alter the longstandingprinciple that s. 11(

b) delay begins to run from the swearing of the Information". [43] Fourth, since Jordan, this court has explicitly followed Kalanj in holding that, for the purposes of calculating delay on a s. 11(b)Charter application, time starts to run from the date of the charge and not the date of the arrest. Most recently, in R. v. Wookey, 2021ONCA 68, 154 O.R. (3d) 145, at para. 55, Trotter J.A. cited R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, at para. 22, which wasdecided before Jordan , to emphasize that "for s. 11(

b) purposes, '[t]he period to be scrutinized is the time elapsed from the date of thecharge to the end of the trial. In this context, 'charge' means the date on which an information is sworn or an indictment is preferred'". [14] Additionally the New Brunswick Court of Appeal decision in R v Doak at paragraph 15 stated that: [15] The second point the trial judge had to resolve was to determine the "starting date" for the purposes of the Jordan s.11(

b) calculation. In my view, this had been long settled by the Supreme Court; the s. 11(

b) Jordan clock begins to run on the date theInformation is sworn and laid in court. [15] Notably cases filed by the Defence for E.C.O. were either pre-Jordan, lower court decisions, or distinguishable on their factsand therefore not binding on this Court.

[16] I have some sympathy for E.C.O. In October of 2021 he was arrested and released relating to these matters whichundoubtedly caused him some anxiety. However, ultimately he was told, within a few weeks, that the police were holding off oncharges and his release conditions were no longer enforceable, and he was not required to attend court. Clearly no Information had beensworn at this time.

So while E.C.O. may have been caused some anxiety about the prospect of future charges, he was in no differentposition than any Accused person who is confronted by police with respect to an investigation but then not immediately charged whilepolice continued the investigation. In fact E.C.O. had the advantage of “best practices” of a Crown review which could have resulted inno charges being laid at all. [17] Clearly the review by the Crown ultimately had some effect on the nature of the charges given Cst.

Vansteelandt’s descriptionof amendments to the charges being made from what was initially being considered. [18] I find no malice or intentional misconduct by police in this case. They were simply acting as instructed and within what theybelieved to be “best practices” for cases of this nature. [19] As such I find that the clock started ticking when the Information was sworn. That date is February 19, 2023. This casetherefore continues to be well within the 18 month Jordan ceiling. [20] For these reasons the Charter application of E.C.O. is dismissed.

Is Pre-Charge Delay a Factor? [21] The Defence did not specifically raise this issue, it being content to rely on the date of arrest for when the clock startedticking. [22] If I were however to consider “pre-charge” delay, it would be rejected. Pre-charge delay has consistently been rejected acrossnumerous jurisdictions and at the Supreme Court of Canada in R v Kalanj, (SCC), [1989] 1 SCR 1594. [23] In R v MacIntosh, 2011 NSCA 111 at para 9, 281 CCC (3d) 291 it was held: To obtain a stay for pre-charge delay the appellant needed to establish actual prejudice to his right to a fair trial.

In other words the delaycreated a situation where he could not truly make a full answer and defence. [24] In the E.C.O. case no evidence was led by Defence relating to a demonstrated prejudice. HAS THE JORDAN CEILING EVEN BEEN REACHED? [25] I have also considered, for argument sake, whether if I were to use the Defence date of October 21, 2021 as the start time ofthe clock, has the ceiling even been reached. [26] If I were to use October 21, 2021 as a starting point, the 18 month presumptive ceiling would only have been reached on April21, 2023. [27] E.C.O. made his first appearance on February 27, 2023.

Disclosure in the first instance was sent and received by March 1,2023. This is all still within the 18 months. Defence counsel clearly had Jordan concerns by March 6, 2023 as he requested moredisclosure relating to that issue and advised the Crown of Jordan concerns at that time. [28] In theory a trial could have been conducted and completed by April 21, 2023. The Crown advised this Court that, at the trial

proper of this matter, it will be calling three witnesses consisting of the two complainants and Cst. Vansteelandt. The Crown indicated that it could have been ready for trial by April 21, 2023 although it would not have been ideal.

The Court takes judicial notice that court time for a trial could have been made available in Fort Qu’Appelle prior to April 21, 2023 had Jordan concerns been raised with the Court. [ 29 ] The Crown did indicate that it never gave much consideration to expediting matters given it always took the position that the clock only started ticking once the Information was sworn on February 19, 2023. Counsel for E.C.O. however argued that a trial prior to April 21, 2023 was not realistic for him given his schedule, the complexity generally of a historic sexual assault trial and his other caseload.

Counsel for E.C.O. indicated that a trial date beyond April 21, 2023 would have been the only practical solution. [ 30 ] I disagree. In my view the presumptive ceiling of 18 months had not been reached. According to Jordan ( supra ) this then put the onus on counsel for E.C.O. to take meaningful steps that demonstrated a sustained effort to expedite proceedings. That did not completely occur as the issue was not raised with this Court. Accommodation could have been made to arrange for trial dates for E.C.O. ahead of the presumptive ceiling date arriving.

Indeed the trial could have been heard on a regular docket day in Fort Qu’Appelle or even through a special hearing date (a non-docket day). This happens regularly and was an available option. If counsel for E.C.O. could not rearrange his

schedule to accommodate an early trial date, the matter could have been handed off to other Legal Aid counsel or farmed out or a Defence adjournment requested. None of this appears to have been considered and instead all efforts went into bringing the Charter application while the Jordan clock was still ticking, even by Defence standards. [ 31 ] For these reasons I would also have dismissed E.C.O.’s Charter application on this basis as well. __________________________ K.A. Lang, J