R. v. Atwell, 2023 NSPC 14

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Atwell , 2023 NSPC 14 Date: 20230501 Docket: 8519431, 8519432, 8519433 Registry: Windsor Between: His Majesty the King v. Trevor Atwell Application for Stay of Proceedings:

Section 11(

b) Charter Judge: The Honourable Judge Ronda M. van der Hoek Heard: April 24, 2023, in Kentville, Nova Scotia Decision May 1, 2023 Counsel: Michael Taylor, QC, for the Crown Nicholas Fitch, for the Defendant By the Court: Introduction: [ 1 ] Mr. Atwell seeks a judicial stay of proceedings due to a breach of his

section 11(

b) Charter right to a trial in a reasonable time. The Information was sworn on August 12, 2021, and the trial is scheduled to commence on May 18, 2023 (21 months and 6 days or 644 days), which exceeds the eighteen-month presumptive ceiling set by the Supreme Court of Canada in R. v. Jordan , 2016 SCC 27 . [ 2 ] The defence accepts 51 days of defence deductible delay, and notes the matter still exceeds the presumptive ceiling.

The Crown argues an additional 57 days, for a total of 107 days, are attributable to the defence, and says this brings the delay below eighteen months. [ 3 ] The parties appear to agree that the delay occasioned by the adjournment of the first trial date when the Chief Judge was locating an alternate judge, represents institutional delay. However, the Crown argues some of the time between trial dates could also be deducted as extraordinary delay caused by the discrete circumstance of Judge Manning recusing himself due to the appearance of conflict and the disclosure of material the day before trial. [ 4 ] Mr.

Atwell does not agree 29 days to determine whether his matter was eligible for the Drug Treatment Court (DTC) was anything other than inherent institutional delay.

He also disputes the Crown’s position that he should have elected mode of trial 30 days after his counsel received disclosure, and the additional 30 days she sought to review, take instructions, and consider applying to the DTC is defence delay. [1] [ 5 ] As a result, the Court will focus the inquiry on four discrete events- (1) the 29-day adjournment sought after defence had the disclosure for a month, (2) the eight days it took for application, review and rejection by the Drug Treatment Court, (3) the twenty days between that rejection and the return to the Court, and (4) the time period between the first and second trial dates.

Decision: [ 6 ] After carefully considering the chronology of events and the arguments of both Crown and defence counsel, I find the presumptive ceiling has been breached, the net delay exceeds eighteen months, the defence was responsible for 51 days delay, there will be no deduction for what the Crown characterized as extraordinary circumstances, and the Court grants the defence application for a stay of proceedings. Facts: The Chronology: [ 7 ] Counsel provided helpful chronologies, and I summarize them with supplementation from my own review of portions of the

court recordings. June 9, 2021 Judge Manning reviews and authorizes a tracking warrant for Mr. Atwell’s phone. June 22, 2021 Mr. Atwell is arrested and charged. August 12, 2021 The Information is sworn with an arraignment date of August 31, 2023. August 31, 2021 First Appearance : Mr. Atwell is represented by defence counsel who advises Judge Manning she sent a disclosure request to the Crown. The federal Crown is unable to say if he will be designated to prosecute the provincial charges on the Information.

Tuesday, September 22, 2021 Second Appearance : Defence confirms to Judge Manning that she received disclosure on Monday, and seeks a month to review it with Mr. Atwell. October 26, 2021 Third Appearance : Defence counsel reconfirms to Judge Manning that she has disclosure but just needs to seek instructions from Mr. Atwell and asks to return on November 23, 2021. Crown agrees that date is fine. November 23, 2021 Fourth Appearance : Defence counsel advises Judge Manning that she has instructions to make application to the Drug Treatment Court (DTC). It is sitting on December 1, 2021.

The Crown says he will review the application. Mr. Atwell’s other unrelated matters are scheduled to return on December 21, 2021, and presumably the instant case as well if it is rejected by DTC, but it is not addressed on the record. December 1, 2021 The DTC rejects Mr. Atwell’s application. December 21, 2021 Fifth Appearance : Defence reports the rejection to Judge Manning and requests adjournment to seek instructions, noting Mr. Atwell has new matters before the Court that create a conflict and Mr. Greer will represent on that file. It is clear she needs to sort out the other files.

All agree this is defence caused delay of 29 days to the next appearance. January 18, 2022 Sixth Appearance : Defence counsel appears and again seeks adjournment to seek instructions. This is also agreed to be delay attributable to the defence. (22 days) February 9, 2022 Seventh Appearance : Defence appears before per diem Judge MacDonald and elects Provincial Court. The trial is scheduled for a full day six months hence on July 20, 2022. It was the earliest date offered and accepted by the parties. July 20, 2022 Date of Trial : The matter is adjourned for two stated reasons.

A cell phone analysis was disclosed to defence counsel late yesterday afternoon. Defence advises he is prepared to proceed to trial if the Crown does not place that material into evidence. The Crown does not agree to do so. The Crown also raises, for the first time, that Judge Manning should probably not hear the matter because he may have represented Mr. Atwell prior to appointment, and heard two bail hearings, on unrelated matters, wherein the alleged facts of this case were read into the record. Judge Manning takes a short recess to review his list of previous clients, confirms he represented Mr.

Atwell in 2001, and agrees to adjourn the matter to contact the Chief Judge in aid of finding a per diem judge to hear the matter on a different day. The matter is set over to August 4, 2022, to allow review of new disclosure and to reschedule the trial before a different judge. August 4, 2022 Rescheduling Appearance : The Court requires more time to locate a judge.

August 8, 2022 Rescheduling Appearance : The Court requires more time to locate a judge. August 12, 2022 Rescheduling Appearance : Judge Manning points out the earliest possible date will be set for this “better part of a day trial”, but it will be a long time in the future. He notes Mr. Atwell is in custody, and the parties will need to work on finding an earlier date. For some reason, the court clerk offers May 28, 2023, in Windsor, but counsel prefer to remain in Kentville and May 18, 2023 , is offered and accepted. Judge Manning re-emphasizes the need to find an earlier date.

After court, Judge Manning sends a letter to counsel summarizing the situation and advising that while the trial date was set, “given he is in custody, a new date will be sought.” Mr. Atwell was released from custody shortly thereafter on September 27, 2022. The parties did not seek an earlier trial date. Legal Principles [ 8 ]

Section 11(

b) of the Charter provides 11. Any person charged with an offence has the right … (

b) to be tried within a reasonable time; … [ 9 ] In Jordan , the Supreme Court established a framework for evaluating trial delay. The Court established a presumptive ceiling of 18 months for matters proceeding in the Provincial Court from the date of charge to the end of the trial. [ 10 ] While defence counsel provided compelling arguments for the Court to consider starting the clock at arrest on June 22, 2021, I find no lawful support for doing so. Instead, the Jordan analysis of delay makes clear that the calculation of total delay starts from the day the Information is sworn and continues to the end of trial.

This makes good sense as the police must be given time to complete an investigation before swearing an Information. [ 11 ] Any delay attributable to the defence is subtracted from that number along with delay attributable to exceptional circumstances, including discrete events: Jordan at paras. 48 and 60 ; R. v. Coulter , 2016 ONCA 704 at paras. 34-40 . Defence delay: [ 12 ] Jordan also speaks to what will constitute defence delay at paragraphs 63-65: [63] The second component of defence delay is delay caused solely by the conduct of the defence.

This kind of defence delay comprises ‘those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial’ … . Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. … . [64] As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not.

The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay …. [65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.

For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions . [Emphasis added] [ 13 ] In R. v.

Cody, 2017 SCC 31 , at paragraphs 32 and 33 the Court provided additional guidance for assessing whether delay is caused by defence conduct: “[32] Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered.

The overall number, strength, importance, proximity to the Jordan ceilings, 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 or if it exhibits marked inefficiency or marked indifference toward delay. [33] As well, inaction may amount to defence conduct that is not legitimate … . Illegitimacy may extend to omissions as well as acts … . 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 to avoid causing unreasonable delay. Defence counsel are therefore expected to ‘actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently’ … .” [ 14 ] Defence may waive delay and that will be deducted along with any delay caused “solely by the conduct of the defence: Jordan at para. 26 . That waiver of delay “may be explicit or implicit, but must be informed, clear and unequivocal”: at para 27. [ 15 ] In R. v.

Villanti , 2020 ONCA 755 , the Court considered some arguments similar to those arising in this case, namely what constitutes exceptional circumstances and the requirement of the Crown to show steps taken to mitigate delay at paragraphs 11, 12, 15, 16, 41-43: [11] Net delay that exceeds the ceilings, being total delay less defence delay, is presumptively unreasonable, but the Crown can rebut the presumption by showing the excessive delay was caused by “exceptional circumstances”: Jordan , at para. 68 .

These are circumstances that “lie outside the Crown’s control” in that they are “reasonably unforeseen or reasonably unavoidable” and the Crown cannot “reasonably remedy the delays emanating from those circumstances” (emphasis in original): Jordan , at para. 69 . [12] The categories of exceptional circumstances are not closed but, “in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases”: Jordan , at para. 71 .

Discrete events include “medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge)”: Jordan , at para. 72 . The period of delay caused by such a discrete event is subtracted from the net period of delay to determine whether a ceiling has been exceeded: Jordan , at para. 75 . … [15] When the possibility of a breach of the Jordan ceiling looms, then the Crown is required to take action to mitigate the problem.

In order to justify a delay in excess of a Jordan ceiling, the Crown must “show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling” (emphasis in original): Jordan , at para. 70 . The court added that: “The Crown, we emphasize, is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay”: Jordan , at para. 70 . [ 16 ] The Supreme Court affirmed its resolve that the Jordan ceilings be applied rigorously in Cody and most recently in R. v.

Thanabalasingham , 2020 SCC 18 . … [41] The Crown’s third argument is that the application judge did not deduct a single day on account of exceptional circumstances in her Jordan calculation. The Crown says that some deduction is mandatory and that the application judge’s failure to do so is fatal. [42] I would not give effect to this argument. The application judge said, at paras. 36 and 39, that she would be prepared to deduct up to three months to the discrete circumstance of two judges falling ill.

This was nowhere near the 11 months that any exceptional circumstances deduction would need to overtake. [43] However, there is no evidence on this issue on which the application judge could base an estimate that the delay caused by two judicial illnesses should be no more than 3 months. Her estimate cannot serve as a norm.

But I would agree with the application judge, on the basis of common sense and the Superior Court’s decision to set the priority for this trial behind numerous others, that the delay caused by scarce judicial resources could not tolerably be permitted to consume all of, or even most of, the actual 11-month delay. Positions taken by the Crown: [16] The Crown argues four timeframes totaling 107 days should be deducted as defence delay. [ 17 ] First , on October 26, 2021, defence had disclosure for approximately a month and should have elected instead of seeking an adjournment to obtain instructions.

As such, the defence caused the delay to the next appearance on November 23, 2021- 28 days . [ 18 ] Second and third , the November 23, 2021, adjournment to December 21, 2021, allowing Mr. Atwell to apply to Drug Treatment Court. He was rejected on December 1, 2021, and the Crown says the eight days required for that process to unfold represents delay attributable to the defence.

The Crown submits that defence counsel’s effort to seek an alternative means to resolve the matter, is “at the very least” a step that “has to be viewed as one to which an implicit waiver applies”, and “neither the Court nor the Court Administration can be responsible for the passage of time occasioned by defence attempting to find an alternate manner of dealing with criminal charges which are before the court for adjudication on the merits”. As such, the full 28 days leading up to the December 21, 2021, appearance is not institutional delay or delay caused by the Crown, but defence delay.

This delay totals 56 days. [ 19 ] When added to the two agreed upon periods of defence caused delay (29 and 22 days), the Crown says 106 or 107 days are attributable to the defence and should be deducted from the total of 644 days, leaving 538 days of delay or 17 months and 22 days, under the ceiling. [ 20 ] Fourth , the Crown argues some delay could also be deducted between the first and second trial dates. Position of the Defence: [ 21 ] Defence counsel concedes 51 days of delay, but does not accede to the Crown’s characterization of other timeframes. He says it

was an acceptable 28 days’ adjournment sought by Ms. Hutchinson to obtain instructions after only having possession of the disclosure for a month.

That is inherent time required to move a matter forward. [ 22 ] The second adjournment to apply to the DTC is also reasonable in the context of the 18 months ceiling set by the court in Jordan . [ 23 ] When the conceded time periods are deducted, the delay in the case is 644-51= 593 days or 19.76 months. [ 24 ] Defence counsel also notes the June 9, 2021, tracking warrant for the phone appears not to have produced full results until the day before trial, and it was not explained why it took so long to produce those results. The police did not charge Mr.

Atwell until 52 days after his arrest so there was surely time to obtain the fruits of the investigation. Now, I will address each timeframe in turn. Issue 1: Pre-election adjournment (29 days) [ 25 ] This timeframe can be dealt with rather expeditiously. It was clear to the Court from a review of the record that Mr. Atwell retained counsel quite early in the process. That he had already obtained representation from legal aid for his arraignment is not common in this court, and certainly was not the regular case at that time when legal aid was experiencing changes in staff lawyers.

That he was charged on August 12, 2021, and appeared a few short weeks later with counsel speaks to Mr. Atwell’s diligence. [ 26 ] Ms. Hutchinson sought the first adjournment to await disclosure and the second to seek instructions. The additional 29 days after the first, sixty days in total, were also a time when she took instructions about application to the DTC. [ 27 ] This was only a second adjournment after receiving disclosure. The charges are serious, and election issues, potential Charter applications, time assessments for trial, all take more time to consider than do straight forward

summary matters. There were no concerns expressed by the Crown about Jordan delay. There is no suggestion the request to adjourn was designed to delay or “exhibited marked inefficiency or marked indifference to delay”: Jordan at para. 27 . [ 28 ] Rather, I find the time taken by a busy legal aid lawyer more than reasonable to address serious charges involving a client with the spectre of drug addiction. The Court does not require counsel to delve into the reasons for requesting a short delay before election when the matter has been before the Court for such a short period of time.

The Crown took no issue with her request. I cannot agree that her request for time in these circumstances constituted defence delay, rather I consider it is covered by the inherent delay built into the eighteen months required for a busy NSLA lawyer to properly represent a client in a busy provincial court. Issue 2: The application to DTC: [ 29 ] The DTC has operated in this courthouse for many years. [2] It is an available option for people charged with drug related offences who suffer from drug addiction.

Examining the decision to apply, it was clear from the conditions in the undertaking drafted by the releasing officer, that he considered drug addiction to be a live issue, included was a condition “not to use or consume drugs except in accordance with a medical prescription”. Based on experience, those words are not used unless there is a drug use issue, otherwise the condition would simply prohibit “possession” of same. It did not. Clearly Ms. Hutchinson was also in a position to understand and consider her client’s personal circumstances and take instructions on the DTC option.

The matter was, at that time, not even close to the Jordan ceiling as evidenced by the first trial date received after rejection. It was well under the ceiling. I should also note, the federal Crown did not seek an 11(

b) waiver for the application, which would by necessity be processed only eight days later when the DTC was sitting to review applications. [ 30 ] Defence actions legitimately taken to respond to the charges is not defence delay. This application to DTC was not frivolous, based on my above noted comments. I find such applications that proceed expeditiously, have already been accounted for in the eighteen- month ceiling. The request was a legitimate defence action.

There was no indication defence counsel was implicitly waiving the delay, which must in any event, be “clear and unequivocal”: Jordan at para. 27 [ 31 ] The Crown has a role to play in reviewing such applications and accepts or rejects them. I have never seen an 11(

b) waiver sought for same and conclude such applications are simply a part of the inherent process, not frivolous, but instead regular and appropriate. [ 32 ] While these courts have been called “special”, they are an established part of the justice system where they exist, and applications to them do not represent defence delay that should be deducted, and certainly not where a mere eight days would result in completion of the necessary vetting process. I was not provided any precedent recommending deduction of such a timeframe and decline to do so on these facts.

Issue Three: the time between rejection and next appearance: [ 33 ] I carefully reviewed the appearance record when the adjournment was sought to apply to DTC. Mr. Atwell had other matters on the docket, and they were set over to December 21, 2022. I did not hear any reference to this matter being scheduled to return to Judge Manning’s court on that date. That it came back on December 21, 2022, following rejection makes sense, but I did wonder how that occurred when a return date was not set.

Perhaps the DTC did so on its own motion? [ 34 ] When the Crown, who argued he was not likely to approve the application when first he heard of it in court, knew it was rejected, he should/could have asked that the matter be re-docketed right away. There was no need to wait until December 21, 2022, since Ms. Hutchinson is in court almost every day. This must be seen as acquiescing to the delay occasioned by the 22 days between rejection and next appearance. I will not deduct this timeframe, as it also accords with some semblance of a proper procedure, and the matter simply returned to the date set for Mr.

Atwell’s other matters. Given neither counsel sought an earlier date, either before or after the rejection, deducting this timeframe as defence delay would be quite arbitrary. Finally, while it not clear to me how the matter came to be on the docket, except that it may have been sent to that date by the DTC judge, I think also fair to assume both the Crown and defence were present in DTC when the return date was scheduled.

Issue Four: Exceptional circumstances occasioned the adjournment of the trial date: [35] The Crown also argues some portion of the timeframe between the adjournment of the first trial date (July 20, 2022) to theupcoming rescheduled date (May 18, 2022), should be deducted under exceptional circumstances delay, and in particular, as a discreteevent. [36] He says the trial judge having earlier heard two judicial interim release hearings for Mr. Atwell, was disqualified from hearingthe trial due to a “potential perception of bias”.

It was not clear if either of the hearings involved this matter, but it appears the allegationswere read at either or both of those hearings. When the Crown raised the concern of apparent conflict, he also queried whether JudgeManning had ever represented Mr. Atwell before appointment. It became clear he had done so. The Crown says some portion of thedelay occasioned by the forgoing must be deducted as exceptional and discrete. [37] I find that the Crown should have been aware from the beginning that Judge Manning authorized the tracking warrant thateventually led to Mr. Atwell’s arrest.

From the first appearance, the Crown was also aware the prosecution proceeded at all times inJudge Manning’s courtroom from the first appearance. After disclosure was provided, surely it was incumbent on the parties to raise aconcern, if they had one, about Judge Manning hearing any eventual trial. Even many months later when a per diem judge, sitting in forJudge Manning, set the trial dates, nothing was mentioned. [38] In addition, the Crown by necessity, would been aware that Judge Manning had heard the two bail hearings where theallegations that would be before him at trial had been read.

Concerns about conflict should have been apparent at that stage. Surely thislack of file management must be seen as acquiescing to both delay and evidencing lack of concern over the appearance of conflict, andnot “tak[ing] action to mitigate the problem”: Jordan at para. 70. [39] This Court is well placed to say that had the matter been raised earlier, perhaps before the bail hearings even proceeded,arrangements surely could have been made to avoid jeopardizing the trial by creating an appearance of bias. In this jurisdiction there arearrangements in place with neighbouring courts to remedy such concerns.

For example, a different judge could have heard the bailhearings by virtual technology. Those are reasonable steps that should have been taken. [40] It is worth noting, despite denying him bail, Mr. Atwell did not join in expressing concerns about Judge Manning hearing histrial in this rural jurisdiction, and Judge Manning did not even recall Mr. Atwell had been a client in 2001. This cannot fairly bedescribed as a discrete event that warrants deduction.

The Crown’s concerns about conflict should have been apparent in 2021whenJudge Manning reviewed and authorized the tracking warrant, and in all likelihood read the entirety of the police investigation, back in2021. Surely the exercise of that judicial function was at least as concerning as those raised by the Crown. I am regularly advised that Ishould not hear an eventual trial because I authorize the warrant(s), and the matter is transferred to the other court. Had the issue beenaddressed in the regular fashion, the matter would have proceeded before a different judge much earlier.

This delay was occasioned bythe Crown, and will not be deducted. [41] Finally, the Crown made the decision to seek an adjournment of trial in aid of calling recently disclosed material, and argued itwas necessary in aid of addressing any potential defences. This raises two concerns. One, the Crown must be taken to have assessed thecase and been prepared to prove it without that late arriving material. Two, seeking an adjournment meant that the matter was now into“Jordan territory” and the Crown did nothing to address that risk. [42] R. v.

Godin, 2009 SCC 26 stands for the proposition the Crown bears the responsibility of bringing an accused to trial withina reasonable time it also discussed delay occasioned by late disclosure. That case involved important late disclosure that could haveaffected the trajectory of the trial. The Crown did not make clear in this application, other than address possible defences, why the latedisclosure formed a proper foundation to seek an adjournment of the trial.

While Godin involved a defence application to adjourn, thecomments of the court are worth considering as they relate to the Crown obligation. [11] Given the possible inconsistencies between the complainant’s statement and the forensic evidence, the Crown quite properly did notquestion the potential importance of the evidence or attempt to force the trial on notwithstanding its last-minute disclosure. There is nosuggestion that Crown counsel delayed disclosure or was otherwise at fault for this delay. Nevertheless, the resulting delay isattributable to the Crown.

It is responsible for bringing an accused person to trial and for the provision of facilities and staff to see thataccused persons are tried in a reasonable time: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at p. 1225. The Crown bearsthe burden of explaining unusual delays caused by the forensic investigators.

It offers no explanation in this case. [Emphasis added] [43] I must say I find it somewhat disingenuous to provide disclosure the day before trial and maintain the decision to place thatmaterial into evidence, hear the defence objection and desire to proceed, then seek a new judge by raising a conflict, and ask that someof the delay be deducted as exceptional circumstances. [44] It is not uncommon in this jurisdiction to bring matters forward to address arising concerns about delay and reschedule.

In fact,it is encouraged as it accords with Jordan. [45] It is also important to consider what did not occur over the course of this case- discussions about s. 11(

b) Charter waivers,working court dockets to find earlier dates, considering other matters that might not be proceeding thus freeing up court time. In fact,defence counsel did not reject a single offered date, and the Crown did not take issue when any requests to adjourn. [46] It is appropriate to note that there comes a time during all criminal proceedings when participants must adeptly move torespond to matters at imminent risk of breaching a Charter protected right.

When fast action must occur will of course be case specific.At a minimum this requires counsel, as part of preparation for any court appearance, to remain live to issues that could impact delay. [47] I note the JEIN system in this province had by 2017, added a Jordan counter to the right-hand side of the dockets allowingreaders to readily see the number of months each docketed matter has been before the Court. That daily docket is available, often posted

on the courtroom door, and searchable by both Crown counsel and lawyers at NSLA. [ 48 ] Reviewing JEIN generated dockets facilitates consideration of the delay to date and should lead to background work aimed at reducing overall delay and safeguarding the Charter protected right. In this case that was not done. The trial date was set, nobody mentioned the date being outside the ceiling. There were no waivers of delay, nor any comments or concern expressed by anyone other than Judge Manning, and that was because Mr. Atwell was in custody.

His concern should have occasioned the Crown to assess the situation and bring the matter forward to seek an earlier date. [ 49 ] Judge Manning correctly raised the possibility of obtaining an earlier date. Because the mater was not brought back, it is impossible to know if an earlier date could have been arranged for trial.

That Judge Manning raised the issue, strongly suggests it was a possibility. [ 50 ] In addition, when the Crown knew it would seek an adjournment of the trial, it should have sought a waiver or clarified whether one was needed, or enquired in advance if other matters could/would be resolving in the event a new date offered would exceed the eighteen month ceiling, after considering the nature of any waiver, the timelines and the seriousness of the offence. Instead, the Crown remained silent. [3] [ 51 ] A word is also necessary about complexity. This matter was not complex. It is scheduled for a single day trial.

Conclusion : [ 52 ] It must be said that Jordan ceilings are not a suggested approach, rather as Judge Tufts put it in R. v. Ellis , [2] they are bright lines. All parties in the justice system bear the responsibility to ensure matters progress through the system within what must surely be a reasonable eighteen-month window.

The Supreme Court of Canada has not suggested an unattainable objective; this Court does not conclude so as that would be contrary to Charter objectives and therefore unfathomable. [ 53 ] I will add, trials such as this are commonplace, not unduly complicated, and should easily be completed within eighteen months. It is necessary for all justice participants to prioritize cases at risk of breaching a Charter protected right. [ 54 ] Finally, I will offer that perhaps disclosure packages should be vetted at an early stage to ensure the sitting judge is not in conflict or placed in conflict by bail hearings.

Jordan requires parties to think outside of the box, and conducting matters in the manner herein suggested must certainly align with Jordan expectations. [ 55 ] The Crown has not satisfied its burden to rebut the presumption by demonstrating the excessive delay was caused by exceptional circumstances, and the resulting net delay, after deducting delay caused by defence, exceeds the eighteen-month ceiling. In accordance with our Court of Appeal’s decision in R. v.

Ellis , 2020 NSCA 78 , the only remedy is a stay of the proceeding which is granted. [ 56 ] Judgment accordingly. van der Hoek, PCJ. [2] Established in 2014, the Kentville Wellness Court consists of the Court Monitored Drug Treatment Program and the Court Monitored Mental Health Program. These programs primarily serve residents of Kings County and West Hants County, including Windsor. Like other wellness courts, these programs do not operate like a trial court.

Participants accepted into the Court Monitored Drug Treatment Program or the Court Monitored Mental Health Program work with a team of professionals who help address the issues contributing to the individual coming into conflict with the law. To be eligible for these programs, an individual must be 18 years of age or older, charged with a criminal offence that occurred in either Kings County or West Hants County, and they must reside in either Kings County or West Hants County.

Court Monitored Drug Treatment Program - Eligible participants must accept responsibility for their criminal actions and have an addiction to cocaine (including crack cocaine), methamphetamines and/or opioids. There must be a connection between the addiction and the alleged criminal offence(s). Participants must plead guilty to their offence(

s) and can only be accepted into the program if the Crown attorney consents to their participation. (Nova Scotia Courts website)