R. v. Krank et al. Date:, 2018 BCPC 26

Citation: R. v. Krank et al. Date: 20180208 2018 BCPC 26 File No: 90261-4C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MACIEJ JAN KRANC, ALICIA MARIA VAN HUIZEN and PAMELA JEAN HUNINK RULING ON DELAY APPLICATION OF M.J. KRANC AND A.M. VAN HUIZEN OF THE HONOURABLE JUDGE P. JANZEN Counsel for the Crown: M. Wheeler Counsel for M.J. Kranc : K. Filkow and J. Halliburn Counsel for A.M Van Huizen : D. Ferguson Counsel for P.J. Hunink : J. Thorhaug Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: February 5 and 6, 2018

Date of Judgment: February 8, 2018 Introduction [ 1 ] Maciej Jan Kranc and Alicia Maria Van Huizen separately apply for a judicial stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) asserting that their respective rights to a trial within a reasonable period of time in accordance with

section 11(

b) of the Charter have been breached. [ 2 ] Mr. Kranc was initially charged on October 30, 2014 with one count of possession for the purpose of trafficking of heroin and two firearms related counts. On December 30, 2014, Mr. Kranc and Ms. Van Huizen were both charged with possession for the purpose of trafficking of heroin, two firearms’ possession counts and possession of brass knuckles, all on October 30, 2014 in Maple Ridge. [ 3 ] Pamela Jean Hunink was charged with possession for the purpose of trafficking of heroin and cocaine on October 30, 2014 in Maple Ridge on the same indictment.

She has not made a Charter application and so I will not be referring further to her in this decision. History of These Proceedings [ 4 ] Crown and the co-accused agreed that the time to trial for each of them was: • for Mr. Kranc a minimum of 40 months and 23 days from October 30, 2014 to March 22, 2014 (or later pending the trial decision); • for Ms.

Van Huizen a minimum of 38 months and 23 days from December 30, 2014 to March 22, 2018 (or later pending the trial decision). [ 5 ] Disclosure was initially provided to both defendants in the period between November 2014 and January 2015. [ 6 ] On June 24, 2015, not guilty pleas were entered; trial by PCJ was elected; and 10 days were estimated for trial. Trial dates were not set as a focus hearing was required for that length of trial. [ 7 ] On July 20, 2015, pleas and elections were made again and the parties estimated that eight days were required for the trial. Both Mr. Kranc and Ms.

Van Huizen indicated that they would be bringing Charter challenges based on issues related to the search warrant and the manner of the search. The court scheduled July 5 to 8 and 11 to 14, 2016 for the trial. [ 8 ] On November 5, 2015, Mr. Kranc’s counsel wrote requesting an itemized list of additional disclosure. Most of the request focused on various aspects of the search warrant and the search including disclosure respecting an individual who Mr. Kranc suspected was a police agent. [ 9 ] On December 14, 2015, Mr.

Kranc’s counsel wrote “renewing our request” for disclosure respecting the suspected police agent. [ 10 ] On January 12, 2016, Mr. Kranc’s counsel again wrote requesting a response from the Crown to the December 14, 2015 disclosure request. [ 11 ] On March 1, 2016, Mr. Kranc’s counsel again wrote to the Crown requesting a response to his disclosure requests on November 5, December 14, and January 12 noting “that the requested disclosure items remain outstanding”.

The letter also referred to a conversation on January 15, 2016 and the likelihood that upon the review of the requested disclosure, he anticipated making further disclosure requests, depending on what was received.

The letter pointed out that the trial was scheduled to commence on July 5 and warned that further delay in disclosure might lead to placing the trial dates in jeopardy. [ 12 ] On March 2, 2016, Crown provided a written response informing that in some cases there was nothing to disclose and advising that Crown was working with the lead investigator on the disclosure related to the informant/potential police agent and would provide disclosure as soon as it was received or would advise if an item could not be disclosed. [ 13 ] On April 5, 2016, Mr. Kranc received additional disclosure. [ 14 ] On April 13, 2016, Mr.

Kranc’s counsel referred to his review of that disclosure and requested source handler notes, source debriefing reports and all communications, notes and reports, etc. made in connection with the informant’s handlers. He made direct reference to the obligation to disclose “in accordance with the decision in R. v. McKay 2015 BCSC 1510 ” (“ McKay” ). He again asked whether a police agent was used in the investigation. Finally, he suggested that the problem of remaining disclosure, its impact on trial readiness and the need for an adjournment be raised at the next court appearance. [ 15 ] On April 25, 2016, Mr.

Kranc filed a formal application for disclosure pursuant to the McKay decision. [ 16 ] On April 28, 2016, Mr. Kranc applied for an adjournment of the trial, advising Judge Buller that it was brought with the consent of all parties. Judge Buller expressed concern about the loss of the eight trial dates, even though the application was brought with the consent of the Crown. The Crown was also not ready to proceed with the McKay application. She adjourned the McKay application and the application to adjourn the trial dates to May 18, 2016. [ 17 ] On May 18, 2016, Mr.

Kranc applied again for an adjournment of the trial. After hearing from all counsel, Judge Buller stated: “Well, I think we’ve got everybody’s comments on the record then. Because there are still outstanding disclosure issues, and it’s abundantly apparent the trial can’t proceed, the trial has to be adjourned, And so I am adjourning the trial dates set - - or I’m adjourning

the trial, rather, and cancelling the dates set, and I note that all counsel agree with this decision on my part”. The Crown did not oppose the adjournment of the trial. Nor did the Crown contradict Judge Buller’s conclusion that all parties agreed to the adjournment of the trial. [ 18 ] On May 18, 2016, the Crown applied to adjourn the hearing of Mr. Kranc’s application for the McKay disclosure. The Crown advised that it was taking the position that it was opposed to the McKay disclosure application but that it recognized that the Court would likely order the disclosure.

However, the Crown required an order before it would make the disclosure. [ 19 ] On June 8, 2016, the date of September 15, 2016 was set for the McKay application. [ 20 ] On June 14, 2016, new trial dates were set: April 25 to 28 and May 1 to 4, 2017. [ 21 ] On September 15, 2016, the McKay disclosure application was heard and the court made an order for disclosure of specified materials. [ 22 ] On November 18, 2016, new voir dire dates were set for March 29 to 31, 2017. [ 23 ] On January 27, 2017, Ms.

Van Huizen’s counsel advised the court and the other parties that he was not available for either the voir dire or the trial dates. He had a murder trial scheduled for the trial dates and another conflict for the voir dire dates. [ 24 ] On February 6, 2017, the implications of the Jordan case on any application for an adjournment were discussed by all of the parties with the court at a pre-trial conference. The Crown indicated that it would oppose any adjournment application unless all defendants agreed to waive delay. Counsel for Mr.

Kranc expressed a preference for waiving delay over making an application for severance in the difficult circumstances of the domestic relationship between Mr. Kranc and Ms. Van Huizen. [ 25 ] On February 20, 2017, Ms.

Van Huizen’s counsel confirmed that he continued to be unavailable for the voir dire and the trial dates and there was further discussion of the implications of Jordan and the need for all defendants to seek clear instructions to waive delay if the voir dire and trial were to be adjourned. [ 26 ] On March 3, 2017, the parties advised the court that all defendants were prepared to “waive delay as per Jordan ”. The trial was adjourned and the voir dire and trial dates were struck.

Judge Smith declared himself not to be seized so that the earliest possible dates could be set. [ 27 ] New trial dates were set: February 5 to 9 and March 19 to 22, 2018. With the exception of Ms. Van Huizen’s application for the adjournment of the second trial dates, there is no evidence to support that the unavailability of any counsel led to delay in setting these dates or any of the earlier trial dates. The Legal Framework [ 28 ]

Section 11(

b) of the Charter says: “Any person charged with an offence has the right to be tried within a reasonable time”. [ 29 ] In the case of R. v. Jordan 2016 SCC 27 (“ Jordan ”), published on July 8, 2016, the majority of the Supreme Court of Canada established a new framework for the analysis of what is a reasonable time for a case to be tried. [ 30 ] The new framework sets a ceiling on how long a case should take to be tried from the date the charge is laid to the conclusion of the trial. For the Provincial Court, the ceiling is 18 months.

Beyond the 18 months, the length of time is presumed to be unreasonable. [ 31 ] The first step of the new framework is to calculate the total time the case is expected to take or has taken (“total time taken”). [ 32 ] The second step is to deduct defence delay. Defence delay includes delay that is caused solely by the conduct of the defence and delay that is waived by the defence.

The defence should not be allowed to benefit from its own delay-causing conduct (para. 60 of Jordan ). [ 33 ] Total time taken minus defence delay that exceeds the 18 months is presumed to be unreasonable and a stay must be issued. [ 34 ] The Crown may rebut this presumption on the basis that the total time taken has been caused by exceptional circumstances.

Exceptional circumstances lie outside the control of the Crown in that they are reasonably unforeseen or reasonably unavoidable and the Crown cannot reasonably remedy the delay that they cause. (Paragraph 69 of Jordan ) [ 35 ] Generally, there will be two categories of exceptional circumstances: discrete events and particularly complex cases. The delay caused by discrete events is to be deducted from the calculation of the total time taken.

If the total time taken exceeds 18 months, a stay must be issued. [ 36 ] The delay caused by case complexity is to be considered in the assessment of whether the Crown has justified the delay and rebutted the presumption that the total time taken is unreasonable.

If the time taken is not justified, a stay must be issued. [ 37 ] The Supreme Court of Canada provided a number of examples of discrete events: medical or family emergencies; cases with international dimensions; and unforeseen or unavoidable developments that arise during the trial, particularly if the trial is scheduled to conclude close to the ceiling. [ 38 ] Factors that may affect the complexity of a case include proceeding jointly against a number of defendants, a large number of

witnesses, significant requirements for expert witnesses, a large number of charges covering a long period of time and a large number of pre-trial applications. [ 39 ] If a case is already in the system, like this case, the new framework still applies but it must be applied flexibly and contextually. It is unfair to judge parties by the strict standard of 18 months when they had no notice of the standard. In these cases, the Court must also consider whether the Crown can justify the total time taken based on the previous legal framework on which the parties relied.

This is called “transitional exceptional circumstances”. The Parties’ Positions on Mr. Kranc’s Application [ 40 ] Mr. Kranc conceded that he was responsible for three months of delay in the slow pace of the case proceeding to arraignment (October 30, 2014 to July 20, 2015). [ 41 ] He also conceded that he waived the delay caused by Ms. Van Huizen’s application for the adjournment of the second trial dates.

He argued that although the adjournment of the second trial dates resulted in a delay of 10 months and 18 days from the end of trial date of May 4, 2017 to the end of trial date of March 22, 2018, only six months of that delay should be attributed to him because severance was not a viable alternative for common law partners, he did not appreciate at the time of his waiver that the delay would be so lengthy and, in any event, viewed globally, that institutional length of delay in the context of how this case had proceeded was unreasonable. [ 42 ] Hence, Mr.

Kranc submitted that the time to trial that could not be attributed to his delay was well in excess of the 18 months beyond which the time to trial is deemed to be unreasonable. [ 43 ] The Crown argued that Mr. Kranc’s waiver of the 10 months and 18 days delay was categorical and that the Crown relied on it in not opposing Ms. Van Huizen’s application for an adjournment. [ 44 ] The Crown accepted that Mr.

Kranc was responsible for three months of delay in the case proceeding to arraignment in July 2015. [ 45 ] The parties fundamentally disagreed about who bears responsibility for the delay from July 14, 2016 to May 4, 2017 (9 months, 20 days) that resulted from the adjournment of the first trial dates. The Crown submitted that this period of time was solely attributable to Mr. Kranc’s delay. He applied for the adjournment of the trial dates and so its consequences are attributable to him alone. Mr.

Kranc argued that the adjournment application became necessary solely due to the Crown’s failure to provide disclosure in a timely manner and that the Crown, in any event, consented to his application for the adjournment. [ 46 ] If this period of time could not be attributed solely to defence delay, the Crown took the position that the delay was the result of two discrete events that constitute “exceptional circumstances”. The first event was Mr. Kranc’s April 25, 2016 McKay application. The second event was Mr.

Kranc’s application for an adjournment of the second trial dates. [ 47 ] The Crown also asserted that the parties’ reliance on the law that preceded the Jordan case amounted to transitional exceptional circumstances on which the Crown could rely. Analysis of Mr. Kranc’s Application [ 48 ] I calculate the total time taken as 40 months and 23 days. I accept that three months should be deducted for delay solely on the part of Mr. Kranc in proceeding to arraignment. The total time taken is reduced thereby to 37 months and 23 days. [ 49 ] I find that Mr.

Kranc expressly and categorically waived the delay of 10 months and 18 days (May 4, 2017 to March 22, 2018) that was required when he consented to Ms. Van Huizen’s application for the adjournment of the second trial dates. I do not accept that this period of delay that was expressly waived by Mr. Kranc should be reduced. First, the Crown was not prepared to consent to the adjournment unless the delay it caused was expressly waived by all three defendants.

All parties were aware of and discussed the implications of the Jordan case at a series of pre-trial conferences prior to the adjournment of the second trial dates. All parties knew that the period of delay caused by the adjournment would not be attributed to the Crown if the delay was waived by the defendants. The Crown relied on Mr. Kranc’s express waiver that was made without any qualifications or conditions. [ 50 ] I also reject the argument that because Mr.

Kranc was faced with the difficult choice of agreeing to waive the delay or applying to sever the trial in the context of a common law relationship, he should be spared the full consequences of that difficult choice. It is a rare case that does not require a party to make difficult decisions that include points for and against taking a particular position.

Once a position is taken, particularly a position on which the opposite party has relied, the first party must live with the consequences. [ 51 ] Finally, it is clear from the transcript of the discussion at the pre-trial conferences that before and at the time that delay was waived by Mr. Kranc, it was contemplated that the new trial dates could be in 2018. [ 52 ] I have concluded that the period of delay of 10 months and 18 days that was waived by Mr. Kranc must be deducted from the total time taken.

That reduces the total time taken to 27 months and 5 days. [ 53 ] I next turn to the period of delay of 9 months and 20 days (July 14, 2016 to May 4, 2017) that resulted from the adjournment of the first trial dates. For the reasons that follow, I reject the suggestion that this delay was caused solely by the conduct of the defence. The Crown has also failed to persuade me that any of the events that led to the delay were the kind of discrete events that qualify as exceptional circumstances that can be deducted from the total time taken.

I am also not persuaded that this is a case of particular complexity. [ 54 ] I turn first to whether Mr. Kranc was solely responsible for the delay. Mr. Kranc identified at the arraignment hearing on July 20, 2015 that he would be bringing a Charter challenge to the search. On November 5, 2015, eight months prior to the first trial dates,

he requested further disclosure related to the search. He followed up in writing on December 14, January 12 and March 1, 2016. On March 1, he pointed out that depending on what was disclosed, it could lead to a request for further disclosure as required by the BCSC’s decision in McKay . He also pointed out that the Crown’s delay was placing the trial dates in jeopardy. [ 55 ] On March 2, 2016, the Crown finally replied, identifying that some of the requested documents did not exist and advising that Crown was working with the lead investigator on disclosure that was related to Mr.

Kranc’s suspicion that an informant was a police agent. [ 56 ] On April 5, 2016, Mr. Kranc finally received additional disclosure that led to him requesting source handler notes, source debriefing reports and all communication, notes and reports made in connection with the informant’s handlers on April 13. He pointed out that such disclosure was required by the McKay decision and again suggested that an adjournment could be required as a result of the Crown’s delay in complying with disclosure requests. On April 25, 2016, he filed an application for McKay disclosure. [ 57 ] On April 28, 2016, Mr.

Kranc applied for an adjournment of the trial with the consent of all parties. The basis for the application was the Crown’s failure to make timely disclosure. Judge Buller refused to grant the application that day due to concern over the loss of trial dates and adjourned the application to May 18 in the hope that delay could be avoided. [ 58 ] On May 18, 2016, the trial was adjourned with the consent of all parties. The Crown also applied to adjourn the McKay application for the disclosure that was required so that Mr. Kranc could prepare for the trial.

The McKay application was not heard until September 15, 2016, when an order was made. [ 59 ] At the hearing of the application before me the Crown clarified that it understood that the trial decision in McKay required it to make the requested disclosure in this case.

However, it had appealed the McKay decision and was insisting in all cases that defence counsel make an application that it would oppose in order to preserve its rights in subsequent cases if the McKay appeal was successful, which it was. [ 60 ] It is abundantly clear from a review of what transpired that the delay that resulted from the adjournment of the first trial was primarily caused by the Crown’s failure to make timely disclosure, its insistence on the requirement that the McKay application be adjudicated and its sole responsibility for several adjournments of the McKay application, an application that was required to be heard well before the trial.

While Mr. Kranc applied for the adjournment of the trial, the Crown consented to the application and it was the conduct of the Crown that led to an adjournment becoming necessary. [ 61 ] In order to be deducted from the total time taken, the delay must be attributable solely to Mr. Kranc. In this case, Mr.

Kranc was not responsible at all for the delay. [ 62 ] I must next consider whether any event that led to the adjournment of the first trial dates was an exceptional circumstance that lay outside the control of the Crown as either reasonably unforeseen or reasonably unavoidable and that cannot be reasonably remedied. [ 63 ] I find no such discrete event in this case. Crown’s ongoing disclosure obligation is a feature of all trials and is primarily within the control of the Crown. The timing of the disclosure is also within the control of the Crown.

In this case, additional specified disclosure was requested by Mr. Kranc eight months before the trial. Mr. Kranc also brought to the Crown’s attention that his review of the requested disclosure would likely lead to further disclosure requests. It was reasonably foreseeable that if timely disclosure was not made, the trial dates could be jeopardized. Mr. Kranc also warned on two occasions that the Crown’s failure to make timely disclosure could lead to the adjournment of the trial.

Rather than expedite the McKay disclosure, the Crown insisted upon a court order being in place and then applied on two occasions for the adjournment of the hearing of that application. [ 64 ] I also find that this case is not particularly complex. Disclosure was not extensive. The offences are of possession - of drugs for trafficking and of weapons - on a single date: October 30, 2014. The Crown’s case relies primarily on a fairly standard number of police witnesses. No expert evidence except the usual police expert on drug trafficking in Maple Ridge is expected to be called.

Typical Charter challenges of the search are to be made by two of the Defendants. This case is similar to most such cases heard regularly in Provincial Court in BC. Its only complexity is that it involves three defendants. A number of cases including the case of R. v. Cody , 2017 SCC 31 make clear that several defendants alone is not sufficient to allow me to treat case complexity as an exceptional circumstance that justifies the total time taken to exceed 18 months. [ 65 ] I have concluded that the total time taken in Mr.

Kranc’s case after all deductions for defence delay, is 27 months and 5 days, well in excess of the 18 months that is the limit of what is a reasonable time for a Provincial Court trial. [ 66 ] Because this case commenced before the rules changed in Jordan , I must next consider whether any transitional exceptional circumstances apply to Mr. Kranc’s application for a stay. Such circumstances will apply “when the Crown satisfies me that the time the case has taken is justified based on the previous legal framework on which the parties reasonably relied”. ( R. v. Singh , 2016 BCCA 427 at para. 24 ).

In other words, I must be satisfied that the 40 months and 23 days from the charge being laid to the trial being concluded is not a breach of Mr. Kranc’s right to a trial within a reasonable period of time under the old framework. [ 67 ] The Crown relied on the checklist of factors set out in the decision of R. v. Williamson , 2016 SCC 28 , the companion case to the Jordan case from the Supreme Court of Canada.

They were: the complexity of the case; the period of delay; the Crown’s response, if any, to institutional delay; the defence efforts to move the case along; and prejudice to the accused. [ 68 ] I have already discussed and concluded that the case was not particularly complex but I acknowledge that because it involved three defendants it presented some scheduling challenges. However, there is no evidence to support that the unavailability of counsel presented any challenges to the scheduling of the three sets of trial dates, with the exception of the unavailability of Ms.

Van Huizen’s counsel for the second set of trial dates. [ 69 ] The period of delay of 40 months and 23 days for a Provincial Court trial by any standard is clearly excessive.

[ 70 ] I have found that the Crown contributed to the delay by its conduct that resulted in the adjournment of the first trial dates. It appears that the Crown took a simplistic approach then and in its opposition to this application to the effect that the party applying for an adjournment would and should be tagged with the delay, regardless of the root cause of the adjournment application and regardless of the position taken by the Crown at the adjournment application.

The Crown’s focus appeared to be on attributing delay to the defence, not expediting the process. [ 71 ] There was no evidence to support that the Crown took any particular steps to move the case along. In fact, the Crown resisted the efforts of pre-trial conference Judge Buller to delay her decision on the adjournment application in order to provide counsel with the opportunity to take steps to save the first trial dates. [ 72 ] Mr. Kranc acknowledged that he contributed to the delay by taking three months longer than he should have to arraign the case. I conclude that Mr.

Kranc took appropriate and reasonable steps to move the case along in the period leading up to the first trial adjournment. Under the old law, Ms. Van Huizen’s adjournment of the second trial must also be attributed to Mr. Kranc as it forms part of defence delay. [ 73 ] Finally, I accept that Mr. Kranc has been prejudiced by this delay. He has been subjected to bail terms for a period well in excess of three years. These charges are a cloud hanging over his life and his ability to make plans for the future.

He also attested to the delay in resolving these charges as causing a relapse in his recovery from addiction. Relapse is common on the road to recovery from addiction. I accept only that the delay may have been a contributing factor to his relapse. [ 74 ] Whether I apply the Jordan framework or the law as it existed before July 6, 2018, the delay is excessive. Mr. Kranc’s right to a trial within a reasonable time under

section 11(

b) of the Charter has been breached and a stay is the remedy. The Parties’ Positions and My Analysis of Ms. Van Huizen’s Application [ 75 ] The Crown asserts and Ms. Van Huizen concedes that the adjournment of the second trial dates (May 4, 2017 to March 22, 2018) led to defence delay that was solely attributable to her. Hence, the time from charges being laid to the last day of trial (38 months and 23 days) should be reduced by defence delay of 10 months and 18 days. The total time taken is 28 months and 5 days. [ 76 ] The Crown concedes that Ms.

Van Huizen bears no responsibility for the earlier adjournment of the trial dates under the Jordan criteria. The time remaining of 28 months and 5 days is 10 months in excess of the 18 months beyond which delay is presumed to be unreasonable. For the reasons set out in my analysis of Mr. Kranc’s application, I find no evidence to support that the Crown has established exceptional circumstances to justify this delay under the Jordan framework. [ 77 ] The Crown also relied on transitional exceptional circumstances to justify the total time to trial. For the reasons set out in my analysis of Mr.

Kranc’s application, I also find that the Crown has failed to justify the delay in Ms. Van Huizen’s case based on the parties’ reliance on the earlier framework. [ 78 ] In particular, the Crown submitted that under the earlier framework delay by one defendant was attributable to all defendants in multi-defendant proceedings. Hence, if Mr. Kranc was responsible for the adjournment of the first trial dates, then Ms. Van Huizen is also responsible for that delay. And in fact, she also consented to that adjournment. However, because I have found that Mr. Kranc was not responsible for that delay, Ms.

Van Huizen was not responsible for that delay. [ 79 ] No particular prejudice was relied upon by Ms. Van Huizen. However, I note that in the Williamson case ( supra) , the Court found that no significant prejudice was suffered by Mr. Williamson. However, the Supreme Court of Canada decided that the Crown had failed to justify the delay based on the parties’ reliance on the earlier law. [ 80 ] I conclude that regardless of whether I apply the Jordan framework or the parties’ reliance on the earlier framework, the delay in this case is excessive and that Ms.

Van Huizen’s right to a trial in a reasonable time under s. 11(

b) of the Charter has been breached. A stay is ordered. [ 81 ] I thank counsel for their thorough ad well-organized materials and their thoughtful submissions. The Honourable Judge P. Janzen Provincial Court of British Columbia