R v. Roy, 2023 NSPC 23

PROVINCIAL COURT OF NOVA SCOTIA Citation: R v. Roy , 2023 NSPC 23 Date: 20230515 Docket: 8534150, 8534151 Registry: Kentville Between: His Majesty the King v. Donald Roy Restriction on Publication: s. 486.4 Judge: The Honourable Judge Ronda van der Hoek Heard: April 27, 2023, in Kentville, Nova Scotia Decision May15, 2023 Charge: s. 145 Criminal Code , RSC 1970, c C-34 s. 149 Criminal Code , RSC 1970, c C-34 Counsel: Matthew Wolfson, for the Applicant Don Urquhart, for the Crown By the Court : Introduction : [ 1 ] Mr.

Roy’s two-day trial is scheduled to commence just over eighteen months after he was charged with offences under the 1979/80 version of the Criminal Code of Canada . He brought a Charter application arguing his s. 11(

b) right to a trial in a reasonable time has been breached, and seeks a stay of proceedings. [ 2 ] The Information was sworn on November 18, 2021, and Mr. Roy agreed to stop the clock for the purpose of this application on May 18, 2023, the first date his counsel declined before accepting the June 12 and 13, 2023 trial dates. As a result, the delay in the matter is 547 days or 18 months and one day. Issues : 1. Is the time between obtaining disclosure and election deductible as defence delay? 2.

Should any of that time, occasioned by the Crown office email system appearing not to accept defence counsel’s emails, be deducted as extraordinary delay? Decision : [ 3 ] The ceiling has been breached. Defence did not cause any deductible delay prior to May 18, 2022, and no time will be deducted. There was no extraordinary delay occasioned by the email system issues, they were predictable and within the Crown’s power to mitigate. The remedy is a stay of proceedings. Background and context :

[ 4 ] The charges, alleged to have occurred 43 years ago, are commonly referred to as “historic” sexual offences. It is tragic that such matters cannot proceed expeditiously while protecting the Charter right of the accused and the public interest, which by necessity includes the complainant. [ 5 ] For reasons unknown to the Court, the Information was sworn, and the arraignment scheduled for two months later. That decision immediately subtracted two months from the eighteen-month ceiling. It is now useful to set out the rest of the time that passed when the matter was before the Court.

The chronology : [ 6 ] Helpful chronologies were prepared by counsel based on the transcripts, unchallenged affidavits from defence paralegal, Chloe Henderson, and crown counsel, e-mails, faxes, and other file documents and records. It is, in part, recreated here, as supplemented by my own comments: November 18, 2021: Information sworn. January 25, 2022: Mr. Roy does not reside in Nova Scotia and engaged counsel in Ontario. A paralegal employed by defence counsel seeks disclosure by reply to a test email received from a named legal assistant at the Kentville Crown office.

I can assume the test email between those two arose following a conversation. January 26, 2022: First Appearance : Counsel attends Mr. Roy’s arraignment. The Crown elects to proceed by indictment and defence advises the Court that the disclosure request was sent yesterday. The matter is adjourned to February 23, 2022, to allow counsel time to receive and review the disclosure. The defence disclosure request is extremely detailed and ends with the following: As you can appreciate, the timely disclosure of these items is extremely important to a full answer and defence.

In addition, anything not listed above in the Crown's possession, should be provided forthwith. February 6, 2022: A different named legal assistant at the Crown’s office sends, by email, a request for defence to first sign an undertaking regarding the permissible use of disclosure before the disclosure will be sent. As such, it can be presumed the emailed disclosure request was received by the Crown. February 7, 2022: Defence counsel replies to the email, signing and returning the undertaking to the same email address from which the request originated. A copy of the reply email is attached to the affidavit of Ms.

Henderson, and the Crown did not seek to cross examine on the contents or attachments to the affidavit. February 23, 2022: Second Appearance : Defence attends Court, just under a month following the disclosure request, and confirms he sent the requested disclosure undertaking form but had yet to receive the disclosure. The Court offers a return date one week hence, on March 1, 2022, but defence declines noting he will need some time to receive and review the material. The Court offers a return on March 29, 2022. That date is acceptable to the parties. There is no mention of waiver or delay.

A per diem Crown was in Court that day, looked at the Crown file and said he thought it appeared disclosure had been sent on February 7. There was no follow up on the topic. March 10, 2022: Still without disclosure, defence counsel’s paralegal contacts the Crown’s office. She is told the Crown’s office had not received their February 7 email due to technical difficulties on their end. Defence promptly resends the undertaking. Despite the comments on the record from February 23, 2022, the Crown did not follow up with defence counsel before the paralegal contacted the Crown’s office.

March 16, 2022: Disclosure received . March 29, 2022: Third Appearance : Fourteen days after receiving disclosure, defence advises the Court that, having done an initial review, a counsel pre-trial (CPT) is needed, as well as a bit more time to consider the contents of the disclosure package. The matter is scheduled to return for election on April 26, 2022, when defence would have disclosure for a month and half. Neither delay nor waiver

are raised or requested. April 4, 2022: Defence emails the Crown seeking a CPT. Receives no reply. April 12, 2022: Defence counsel emails the Crown once again, and receives no reply. Once again, the emails are attached to the applicant’s affidavit and the Crown did not seek to cross examine the affiant. April 26, 2022: Fourth Appearance : Defence counsel explains to the Court that his office telephoned the Crown’s office to set up a CPT and was directed to send an email to a named crown attorney. They did so and did not receive replies.

The per diem crown attorney, appearing this day, says he will arrange for the named crown attorney to contact Mr. Wolfson. The Crown suggests a return on May 24, 2022, pending a CPT. That same day the Crown’s office calls defence to explain that a firewall may be preventing his office receiving counsel’s emails. The Crown asks defence to fax a request for a CPT, and defence does so that day. It was not clear why a fax was required and why the phone call did not simply result in setting an appointment for the CPT.

May 5, 2022: A Crown Attorney contacts defence counsel’s paralegal to say that CPTs are not common in Kentville, but he would be happy to discuss the file with defence counsel. He provides a one-day estimate for trial. May 20, 2022: Fifteen days later, defence counsel’s paralegal replies to the Crown’s email and asks to

schedule a CPT. The Crown did not receive the email. May 24, 2022: Fifth Appearance : The defence elects provincial court and outlines history of attempts to seek a CPT. Crown seeks a day for trial, defence says he is not in agreement with that estimate and asks for a pre-trial. The Crown comments on delay and wants to set the matter down, he suggests the parties can talk later. Court offers one day and suggests seeking another later if needed. Defence seeks two days. The court clerk offers a full day just under a year away on May 16, 2023, described as the first available full day.

The parties accept, and May 18, 2023, is offered for the second trial date, but defence is not available. The clerk notes a half day is available on May 15. Regrettably there is no discussion about the nature of the scheduled half day matters, whether they could be moved to accommodate this matter, nor was there consideration of whether the other matters attracted Jordan concerns. Defence suggests a number of earlier full May dates when he is available- none are available to the Court. May 24 and 25, 2023 are offered. May 24 is acceptable to all, but defence is not available on the 25th.

Crown suggests setting the matter for full days on May 16 and 24, but defence notes he is coming in from Ontario and asks that they try for days closer together, if possible. It should be noted, the 16th is a Tuesday and the 24 th the following Wednesday. The Court offers June 7 and 9, 2023, these dates are accepted by both counsel, but they are pulled back by the court clerk. June 12 and 13 are offered and accepted by all. There was no discussion by any party about the dates falling outside the 18-month ceiling. Defence states that he will reach out to the Crown, since they have a “good year” before trial.

There appears to be consensus the parties will speak well before trial. May 26, 2022: Defence counsel’s paralegal emails the Crown attorney once again asking to

schedule a CPT. The Crown says they received neither CPT related email.

Characterising delay: [7] While the parties agree the presumptive ceiling has been breached by a day, the Crown argues 59 days is deductible asdefence delay, resulting in the matter falling well under the eighteen-month ceiling. [8] What constitutes defence delay was explained by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 at paragraphs63-65. Since there was no waiver by defence counsel, the second component is all that must be addressed on this application. [63] The second component of defence delay is delay caused solely by the conduct of the defence.

This kind of defence delaycomprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be adeliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed atcausing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay.

Trial judgesshould generally dismiss such applications and requests the moment it becomes apparent they are frivolous. [64] As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but thedefence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time duringwhich the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This shoulddiscourage unnecessary inquiries into defence counsel availability at each appearance.

Beyond defence unavailability, it will of course beopen to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [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, defenceapplications and requests that are not frivolous will also generally not count against the defence.

We have already accounted forprocedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer anddefence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defenceactions. No defence requests to adjourn were dismissed as frivolous: [9] In reviewing the transcripts of the court appearances, I note neither the Court nor the Crown ever took issue when defencerequested to adjourn.

For example, when defence counsel advised they had possession of disclosure for only fourteen days and requestedan adjournment to complete the review and hold a CPT, there was no objection by the Crown to the new date provided by the Court norto the appropriateness of a CPT. It is reasonable to conclude there was no concern stated because the request was not frivolous andinstead fell within the inherent time requirements of the case. Likewise, there can surely be no argument the defence was engaged indeliberate and calculated tactics to delay an eventual trial date.

Rather, at all times his actions were laser focused on getting thedisclosure then having that CPT before election. [10] There is no authority of which I am aware that says time spent reviewing disclosure constitutes defence delay, unless of courseit exceeds that which is necessary in the circumstances.

I know this is a historic sexual assault case, that the disclosure includedstatements from four people that were four plus hours in length; I am also aware that all sexual assaults cases involve consideration ofthe regular issues such as s. 276 applications, and historic cases extend to consideration of the law as it existed at the time.

I am alsoaware that meaningful conversations between counsel can rarely occur until such time as defence counsel is familiar with the disclosure. [11] Likewise, I am not aware of any case law that sets a maximum number of days during which defence counsel can undertakethose tasks after which additional time counts as defence delay.

Instead, a contextual analysis requires the Court to consider theinformation before it and reach a conclusion as to when defence counsel should be in a position to elect, and whether any time after thatpoint is frivolous or a deliberate attempt to cause delay. [12] I find no support to reach such conclusions in the matter before me. Instead, I find defence counsel originally sought a month toreview disclosure at the arraignment.

That request was, based on common sense and my experience in this busy trial court, reasonable.When he finally did receive disclosure, it follows that the same amount of time to review would be needed. I do not accept the Crown’sargument that defence counsel should have been ready to elect a few weeks after receiving disclosure in a historic sexual assault case,and note the Crown did not raise such concerns before the Court when the adjournment request was made.

It was not reasonable toexpect counsel to elect until he had sufficient time to review the material and have the necessary CPT his office was trying to set up.These were not frivolous requests, instead they were more than reasonable steps aimed at setting an appropriate amount of time for trial,should a trial be needed.

Resolution discussions are also envisioned in a CPT. [13] I will add that it is common in this jurisdiction for defence counsel to review disclosure and undertake their variousprofessional obligations for a month or two before electing and setting trial dates, and trials are easily accommodated under the 18-month ceiling. When the Crown is worried about delay, the issue should be raised and addressed on the record. In this case counsel isfrom Ontario, and Mr.

Roy also appears to be from out of province, as such the local crown must be relied upon to advise counsel ifJordan concerns are starting to arise based on their local knowledge of how far out the court sets dates. I am not aware of any suchconcerns being raised in this matter. Instead, delay was only mentioned on the last appearance in May when the trial dates were set.

Those comments appeared to be in aid of setting dates, and fair enough, however nobody took note the matter was scheduled outside the eighteen-month ceiling. [ 14 ] On the issue of CPT, the defence says seeking one was neither frivolous nor unnecessary. Two pre-Jordan cases were advanced that considered the inherent nature of pre-trial conferences.

I note while a pre-trial conference usually refers to an appearance before the court after trial dates are set, a CPT is aimed at encouraging counsel discussions to consider such things as time needed for trial, possible admissions, an agreed statement of fact, any pre-trial motions, Charter applications, or, in sexual assault cases, s. 276 applications. They are different in timing, but similar with respect to aim -focused use of court time. [ 15 ] The Ontario Court of Appeal addressed the inherent nature and importance of pre-trial conferences in R. v.

Konstantakos , 2014 ONCA 21 at para. 8 : [8] In our view, this was a mischaracterization of the delay, which should have been described as inherent. Pre-trial conferences are necessary case management tools, conducive to the efficient use of resources, and reasonable delays to conduct them should be treated as inherent. [ 16 ] The issue was also considered in R. v. Sidoro , 2013 ONSC 6010 at para 32 : [32] On May 25, 2009 the parties scheduled the pretrial for July 9, 2009. This 44 day period to

schedule an important part of the proceeding seems to me to be a relatively short and entirely appropriate period of time in which to obtain a pretrial in this very busy jurisdiction. Given the relatively brief period involved to

schedule such an important step I see this as part of the inherent time requirements of the case: Nguyen. Had it taken appreciably longer to obtain a pretrial date I would have assessed at least a portion of the time as institutional delay. However, it seems to me to be entirely reasonable that it would take 44 days to have a judge available to conduct a pretrial. [ 17 ] Defence counsel sought the CPT for legitimate reason, made clear from his comments on the record, submissions on this application, and actions of his support staff.

In the absence of that CPT, he was only aware the Crown required a day and, having listened to four recorded statements of over four hours length and reviewed 240 pages of material, he added a day for his client’s needs in the absence of a CPT. He also pointed out that closing submissions for a historic charge would also require more than the regular time. It is impossible to know if a CPT could have reduced the time needed for trial to a day or even a day and a half. [ 18 ] I find an adjournment to

schedule a CPT before election a necessary and inherent requirement. The time allotted to the process was not at all excessive, the Crown took no issue and doing so could fit well within an eighteen-month ceiling. In fact, it is not uncommon for defence counsel to spend two of the eighteen months with disclosure before electing and it can certainly be assumed that time period would also cover conversations with the Crown to address the type of matters defence counsel sought to address. The only difference here is language, while the Court regularly hears counsel ask for an adjournment to speak to the Crown, Mr.

Wolfson used the common vernacular in Ontario - a CPT. [ 19 ] While the Crown submits these conversations happen regularly outside the courtroom during a plea day, that was not what defence was seeking. Instead, he wanted a private meeting that would allow the parties to prepare in advance to discuss the case. He points out that he was appearing virtually and could not have a spur of the moment, outside the doors of the courtroom conversation, and the serious nature of the matter did not in any event lend itself to such a meeting. This position strikes the Court as eminently reasonable.

I agree and add that following Covid counsel in this jurisdiction have been encouraged to make plea appearances by Teams and have been doing so. Obviously, the courthouse culture changes and adapts; Crown and defence counsel have, generally speaking, adapted quite well. Counsel discussions have necessarily moved from the building to the virtual. So, the argument for the status quo must fall flat. [ 20 ] Finally, it is not clear to the Court why when the defence counsel paralegal calls the Crown office, she was asked to send a fax request for a CPT.

Could she not be accommodated on the telephone when it was clear there were potential problems with the email system, or the Crown was not responding? The email that started the communication process between Crown and defence was an initial request for disclosure that already suggested concerns with this means of communication- that first email from the Crown’s office was described as a test for some reason. Why not fax the disclosure undertaking and address the entire disclosure request at the same time. In my estimation, a focus on using email resulted in disclosure being sent much later than necessary.

Also, it is not clear why a paper disclosure undertaking is even necessary, but nothing turns on that last point other than to state my lack of understanding. Office procedures should not be so unwieldy that they interfere with Charter rights. [ 21 ] Having determined that the time taken by defence to review disclosure and seek a CPT was reasonable and not deductible as defence delay, it now turns to the Crown to establish exceptional circumstances.

Exceptional circumstances: [ 22 ] What will constitute exceptional circumstances was described in Jordan at para. 69 . [69] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[ 23 ] The defence says the Crown’s inability to address email delivery problems cannot come at a “cost to Mr. Roy’s s.11(

b) Charter right”. He points to the Crown itself raising a concern about their system with defence counsel’s paralegal, who was then asked to fax the CPT request and did so. From an earlier point when the undertaking was not received, it was also clear there were issues with the email system. In addition, this was raised on the record with the Court, yet there was no pivot to sole use of the fax machine, mail, or the phone. [ 24 ] While a novel problem, I cannot characterise it as reasonably unforeseen or reasonably unavoidable based on the background and the chronology of events.

That is simply because it continued throughout the life of the matters starting with the characterization of the first email communication as a test. Quickly thereafter when the undertaking did not arrive in the Crown’s office, it was clear communication should take a different tact to avoid delivery problems. At the risk of sounding like a luddite, why is a phone call eschewed in favour of email? The base goal is surely communication with the focus of moving matters along. In R. v.

Belanger , 2022 SCC 2 at paragraph 8 , the Court reminded counsel, “participants in the criminal justice system, including the defence, must take a proactive approach in order to prevent unnecessary delay by targeting its root causes”. [ 25 ] I agree the defence counsel has no control over a provincial email system, and it cannot be made his obligation to query whether email addresses provided by the Crown’s office are correct and emails received, but instead he must use the tool provided and expect that all is regular and that he will receive responses to his routine requests.

Defence was proactive in that regard, as he regularly raised the issue both in Court and with the Crown’s office. [ 26 ] Having found the email problem neither reasonably unforeseen nor unavoidable, I also find the problem could have easily been remedied by use of the many available alternate communication tools from an early stage.

That was not done. [ 27 ] After determining the defence requests to adjourn were in aid of inherent requirements of the case, and there were no exceptional circumstances, there is no deductible delay in this matter. [ 28 ] The grim reality, a matter that is 43 years old requires focused attention to ensure it is moved expeditiously to a conclusion. That did not occur in this case and the only available remedy for the breach of Mr.

Roy’s Charter right to a trial in a reasonable time is a stay of proceedings. [ 29 ] I should add in obiter , while defence asked the Court to stop the clock on May 18, 2023, the first date he refused, a consideration of the Supreme Court of Canada’s recent decision in R. v. Hanan , 2023 SCC 12 , could have resulted in additional non- deductible defence delay when counsel sought trial dates closer together. [ 30 ] Application granted. van der Hoek PCJ