R. v. Bhullar, 2022 BCPC 236

Citation: R. v. Bhullar 2022 BCPC 236 Date: 20221021 File No: 93200-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. GURJAP SINGH BHULLAR and SAHEL SANDHU RE:

Section 11(

b) Canadian Charter of Rights and Freedoms Application ORAL RULING OF THE HONOURABLE JUDGE D.H. SILVERMAN Counsel for the Crown: F. Lepine Counsel for the Defendant, G. Bhullar: C. Muldoon Counsel for the Defendant, S. Sandhu: J. Ray, K.C. Place of Hearing: Abbotsford, B.C. Date of Hearing: August 26, 2022 Date of Judgment: October 21, 2022

[1] The accused in this matter stand charged with a number of offences under the Controlled Drugs and Substances Act. In brief, theoffences involve allegations of them selling illicit drugs to undercover police officers on three occasions in February and March 2019,followed by a search by police of a location in which controlled substances were found, thereby giving rise to allegations of possessionfor the purposes of trafficking.

While the two accused were arrested on the date of the last allegation, April 24, 2019, they were releasedwithout charge the following day. [2] Charges against the accused were not sworn until April 30, 2021, more than two years following their arrest. The matter thenproceeded in court through the initial appearance phase without significant delay, with appearances eventually required due to COVIDprotocols at a virtual pre-trial conference on November 5, 2021.

By that time, the accused had served the Crown with notice of intendedCharter applications relating to disclosure, as well as both pre and post charge delay. [3] The judge who presided at the pre-trial conference directed that a five-day trial be set with separate dates in advance for thedisclosure application first, followed by 30 days to allow the trial judge to release their decision, and followed then by the delayapplication. [4] All counsel promptly forwarded their available dates to the case manager, with Crown Counsel’s extending up to early June2022, and defence counsels’ extending into the fall and winter months of 2022, as well as the entirety of 2023. [5] On November 24, 2021, counsel for Mr.

Sandhu sent an email to the scheduler clarifying the order of proceedings as directed bythe pre-trial judge. In the end, June 21, 2022 and July 25, 2022 were set for the two pre-trial applications, and January 4 to 6, 9 and 10,2023 were set for the trial. The final day of the trial, as currently scheduled is 20 months and 12 days from the date the charges in thismatter were sworn. [6] Defence counsel argues that it was available to complete the trial within the R. v. Jordan, 2016 SCC 27 , [2016] 1S.C.R. 631, but it was Crown’s availability that resulted in trial dates being selected outside the 18 month limit.

It therefore seeks a stayof proceedings as a result of the alleged s. 11(

b) Canadian Charter of Rights and Freedoms breach. [7] In reply, the Crown maintains that based on its and the court’s availability the matter could have been completed in March 2022;that is, well within the Jordan framework. The delay in this instance, the Crown says, was caused solely by defence counsels’unavailability. In any event, the Crown argues, the time requirements to conclude the matter are the result of illegitimate actions takenby the defence.

As such, the Crown asserts that the defence should not be entitled to relief for delay that was caused by its own frivolousactions. [8] The issue, then, is who is responsible for the delay. [9] Crown and defence agree that up until the dates for pre-trial applications and trial were set, all parties moved with reasonabledispatch and that neither party caused undue delay.

There is agreement that this period should be considered as the intake phase forpurposes of my calculations. [10] Counsel disagree, however, that Crown was in fact available on dates that corresponded with defences’ available dates that wouldhave been Jordan-compliant.

Additionally, counsel differ on whether the actions taken by defence counsel that necessitated pre-trialapplications were legitimate, as that term has been defined in the jurisprudence. [11] In order to address these issues a deeper dive into the unique circumstances surrounding the setting of the dates must occur. [12] The first noteworthy feature about this matter is the pre-trial conference that took place before dates for trial and applicationswere set.

One of the procedures that has been implemented by the BC Provincial Court due to the pandemic is the requirement that allcriminal trials that are estimated to require three or more days go before a judge for such a conference. Their purpose, among otherthings, is to bring counsel together for without prejudice discussions intended to promote resolution, or in the alternative to facilitatediscussions intended to narrow the focus of anticipated trials.

The over-arching goal, as I understand it, is to economize on court time,which in turn has the effect of reducing all justice system participants’ potential exposure to the COVID-19 virus. [13] In this matter, one day prior to the pre-trial conference, counsel for Mr. Sandhu served Crown with notice of its intention to raiseCharter issues with respect to disclosure as well as pre and post charge delay. In the filed notice, counsel states explicitly that forpurposes of calculating the Jordan time period, the date of arrest on April 24, 2019 should be the starting point.

Although the pre-trialconference, due to its nature, is not recorded, I understand that at the appearance on November 5, 2019 counsel for Mr. Sandhu raised thequestion of the reason behind the more than two year delay in laying charges in this matter, and advised the court that he was taking theposition that the calculation of the overall delay should include the pre-charge period. [14] I do not know precisely what Crown Counsel said in reply to this submission, but I accept that this was a controversial positionfor the defence to take.

Indeed, in my previous ruling on disclosure as it relates to this issue, I rejected the defence’s argument, finding nosupport in long established jurisprudence that s. 11(

b) rights begin at any time before charges against an individual are sworn. [15] Notwithstanding my views on the subject, the pre-trial judge directed the following blocks of time be set for this matter: 1. A disclosure application focusing on the reasons for the pre-charge delay, with 30 days to follow to allow for the court to issue adecision; 2. The delay application; 3. The trial, including ss. 8 and 9 Charter issues; 4. Section 24(2) argument, and/or purpose of possession argument.

[ 16 ] The first two blocks were directed by the pre-trial judge to be heard before the commencement of the trial, with five days set for the trial itself. [ 17 ] I understand that Crown Counsel argued at the pre-trial conference that the delay application should be addressed at the conclusion of the trial, which suggests it only perceived the issue in terms of a s. 7 Charter argument; however, it is clear, and all counsel agree, that the pre-trial judge ordered it be dealt with in a pre-trial application. I also understand, despite Crown’s strong views regarding the merit of the defence’s s. 11 (

b) position, it took no steps to seek further court direction to limit the defence from advancing their argument, thereby obviating the need for time to be set aside for the pre-trial applications. [ 18 ] Starting on November 15, 2021, counsel began e-mail correspondence with the Abbotsford Judicial Case Manager with a view to setting dates. The following day, the case manager informed counsel that she could set dates in the matter from March 2022 and onwards. Crown Counsel replied with a list of its available dates in various blocks in March, April, May, and June 1 to 3, 2022. Counsel for Mr.

Sandhu indicated that he was available anytime after May 2022, except August 25 to 26 and October 3 to 7. Counsel for Mr. Bhullar advised he was available June 21 to 23, July 25 to 27, September 7 to 8, October 3 to 7 and January 3, 2023 and onwards. [ 19 ] On November 24, 2021 counsel for Mr. Sandhu wrote to the case manager to clarify to her the pre-trial judge’s direction regarding the order of proceedings. In reply she wrote: Noted, thank-you.

By the look of defence counsel’s availability as set out below, we can set the one-day disclosure application for June 21, 2022; the delay application on July 25 and 26, 2022 and the 5-day trial January 3 to 6 & 9, 2023. To confirm availability of the Court for a 5-day trial with 11 police witnesses as set out in system, we would have March 22-25 & 28, 2022 dates available. Debbie/Nicole, could you please confirm Crown’s availability for those proposed dates and we will attend to the scheduling of this matter.

Thanks. [ 20 ] On that same date Crown Counsel replied with the following: Crown is available: June 21, 2022, July 25 & 26, 2022 and January 3 to 6 & 9, 2023.

I also note that Crown is available on the March 22-25 & 28 dates but from review of defence counsel’s dates they are not available for March 2022. [ 21 ] Accordingly, that same date, the case manager set the two pre-trial applications on June 21, 2022 and July 25 and 26, 2022, with a 5-day trial to follow starting on January 3 to 6 and the 9 th , 2023. [ 22 ] On June 16, 2022, in order to accommodate my schedule, the case manager asked counsel whether they could adjust to a January 4, 2023 start date for trial, with the concluding date now falling on January 10, 2023. All counsel responded in the affirmative.

She then completed a trial scheduling slip with notations indicating that counsel for Mr. Bhullar was unavailable for the “first offered 5-day trial period of March 22 to March 25 and 28, 2022.” As previously noted, counsel for Mr. Sandhu had indicated by email that he was available, for the most part, any time after May 2022. [ 23 ] At the June 21, 2022 pre-trial application, Crown Counsel raised with the court his concern regarding the January 2023 trial dates, and his interest in exploring whether earlier dates could be obtained.

I queried Crown at that time why if he was not content with the trial dates did he consent to adjourning to the dates scheduled by the case manager in November 2021. The issue was left unanswered in court, but I gather then some communication between counsel and the case manager occurred with dates in September, October, November and December 2022 ultimately being offered by her. Counsel for Mr. Sandhu wrote to Crown Counsel on July 15, 2022 to advise that he was not available for the dates offered, although he could try to accommodate November 2022 dates.

I note the following remarks in that communication: The October dates conflict with other matters. Had the October dates been offered earlier, I would have been available. I could make the November dates work, but am wondering why these dates were not made available at the time of the initial fixing of the trial dates?

Also, the November dates offered still fall outside the Jordan timeline, which to my calculation is October 30, 2022. [ 24 ] I understand no further effort has been made by counsel to secure earlier dates than those currently set in January 2023. [ 25 ] Finally, I note that since my ruling on defences’ disclosure application relating to the reasons for the pre-charge delay, defence counsel has notified Crown that they intend to reserve the s. 7 delay argument until after the Crown’s case at trial is concluded. Legal Framework [ 26 ] In R. v. J.F., 2022 SCC 17 , Wagner C.J. wrote: In R. v.

Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631, this Court delivered a clear message to all participants in the criminal justice system in Canada: everyone must take proactive measures to prevent delay and to uphold the right to be tried within a reasonable time guaranteed to an accused by s. 11(

b) of the Canadian Charter of Rights and Freedoms . By creating ceilings beyond which trial delay is presumptively unreasonable, the Court developed a prospective approach that allows the various participants to know, from the outset of the proceedings, the temporal limits within which the trial must take place. [ 27 ] As is well known by now the two basic limits set by the Supreme Court in Jordan are 18 months for matters which proceed to trial in Provincial Court, and 30 months for those in Supreme Court. [ 28 ] To the calculation of these basic limits, the Supreme Court allowed for additional considerations. A helpful

summary of this process is found in R. v. Brown , 2019 ONSC 6689 :

[12] In Jordan, the Supreme Court of Canada revised the analytical approach for assessing s. 11(

b) Charter claims previouslyestablished in R. v. Morin, (SCC), [1992] 1 S.C.R. 771. The Supreme Court endorsed the use of presumptive ceilings,recognizing 18 months as the ceiling for cases proceeding to trial in the provincial court, and 30 months for those in the superior court:see Jordan, at paras. 46, 49, 105. [13] The analysis of claims under s. 11(

b) of the Charter begins by calculating the total amount of time that has elapsed from theinitiation of the prosecution until the end of the trial or the anticipated end of the trial. Once the total delay has been calculated, anydelay attributable to the defence must then be subtracted: see Jordan, at paras. 47, 60. [14] Periods of delay attributable to the defence can take one of two forms. First, defence delay will include any periods that wereexplicitly or implicitly waived by the defence, but in either case, the waiver must be clear and unequivocal: see Jordan, at para. 61.

Thesecond type of delay attributable to the defence is that which is caused solely by its conduct: see Jordan, at paras. 63-65. [15] After the total delay, less any defence delay, is calculated, the next step in the analysis requires a determination of whether theremaining delay – not caused by the defence – is above or below the presumptive ceiling: Jordan, at paras. 47, 66-67. [16] If the net delay (that which remains after deducting any delay attributable to the defence) exceeds the applicable ceiling, the delayis presumptively unreasonable.

The Crown may then attempt to rebut the presumption of unreasonableness by showing that the delay isreasonable because of the presence of exceptional circumstances: see Jordan, at paras. 47, 68-80. [17] The Supreme Court explained that “exceptional circumstances” lie outside the Crown’s control in the sense that (1) they arereasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from thosecircumstances once they arise: see Jordan, at para. 69.

Importantly, the Supreme Court noted that such circumstances need not be “rareor entirely uncommon.”: Jordan, at para. 69. [18] If the delay that remains, after deducting any delay either attributable to the defence or that has resulted from exceptionalcircumstances that could not be mitigated, exceeds the presumptive ceiling, then the delay is unreasonable and a stay of proceedingsmust be entered: Jordan, at paras. 47, 76, 105. [29] Generally, if court time is available as well as the Crown, delay that is caused by the unavailability of the defence counsel willbe deducted from the overall total delay (see Jordan at par. 64). [30] As mentioned above, the time taken by the defence for conduct that is considered illegitimate will also be deducted from theoverall period of delay.

In determining what is or is not legitimate, I find guidance in the Supreme Court of Canada’s remarks in R. v.Cody, 2017 SCC 31 , [2017] 1 SCR 659: [31] The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instancejudges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show acorrespondingly high level of deference thereto.

While trial judges should take care to not second-guess steps taken by defence for thepurposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate todo so. [32] Defence conduct encompasses both substance and procedure - the decision to take a step, as well as the manner in which it isconducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstancessurrounding the action or conduct may therefore be considered.

The overall number, strength, importance, proximity to the Jordanceilings, 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 orif it exhibits marked inefficiency or marked indifference toward delay. [31] The SCC admonished all justice system participants to work concertedly to counteract the culture of complacency. In Jordan thecourt stated: [70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonableavailable steps to avoid and address the problem before the delay exceeded the ceiling.

This might include prompt resort to casemanagement processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trialor to coordinate pre-trial applications, or resorting to any other appropriate procedural means.

The Crown, we emphasize, is not requiredto show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay. … [137] Real change will require the efforts and coordination of all participants in the criminal justice system.[5] [138] For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, deliveringon their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court timeefficiently.

It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means activelyadvancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crowncounsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, andanticipating issues that need to be resolved in advance. [139] For the courts, this means implementing more efficient procedures, including scheduling practices.

Trial courts may wish to reviewtheir case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judgesshould make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affordingdeference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of theirdecisions on the conduct of trials.

Analysis [ 32 ] The first area I intend to scrutinize in this matter focusses on the issue of the legitimacy of defence counsel’s actions in pursuing Charter remedies. While the Crown has argued forcefully in this application that there is no merit to the defence’s argument that the Jordan clock starts at the time of arrest, the fact remains that the pre-trial conference judge ordered that time be set aside in advance of the trial to hear the two related Charter applications.

It is difficult to fault defence counsel for advancing their argument, despite my earlier ruling, when they received judicial approval to pursue it. [ 33 ] That, by itself, does not settle the question of legitimacy, so as Jordan suggests, I may look at other factors. Turning then to the number of steps taken by defence, I note there really is only the one action; that is, the application for disclosure from Crown of reasons for the pre-charge delay.

This is distinctly different from the scenario sometimes seen in which the defence brings a multitude of time- consuming pre-trial applications of little or no merit. [ 34 ] Additionally, I note that the defence from the earliest stages in this matter notified the Crown and court of its intention to pursue the issue.

Again, this is different from the type of problem often identified in many Jordan cases where the notice and steps taken pursuant to it are last minute and protracted. [ 35 ] Finally, despite my ruling on the disclosure issue, this was not a situation where the defence argument was completely meritless. Indeed, the defence found support for its position in at least one decision from BC Provincial Court, and it relied on a number of authorities to support a pathway to reasoning that endorsed its view on the issue.

The fact that I disagreed with one provincial court judge’s decision, nor found support for the position in the other authorities relied on, does not detract from the basic idea that there was at least an argument to be made. [ 36 ] In the result, while the steps taken by the defence were certainly not successful, I find in all of the circumstances they cannot be described as illegitimate. They undoubtedly had the stamp of judicial approval from the time the pre-trial judge issued the direction regarding the order of proceedings.

The defence pursued its application without undue delay, and it advanced an argument that by no means strong, was, nonetheless, supported to a degree by other jurisprudence. [ 37 ] Perhaps most significantly in my overall review of the circumstances in the matter, I note that the Crown took no steps in response to what it believes, at least now, was unnecessary time spent on an application viewed by it as having no merit.

I queried the Crown during his submissions on this application, and was able to confirm, it made no requests for further pre-trial direction; nor did it set or attempt to set the matter down for a Vukelich hearing. In my view, this inaction does not accord with the Supreme Court’s admonishment to all justice system participants that they must actively work to combat the culture of complacency. [ 38 ] Having concluded then that the defence did not engage in illegitimate actions, I will now consider whether any other periods should be deducted from the total delay of slightly more than 20 months.

Here I am specifically looking at the question of counsel’s availability. [ 39 ] There seems little doubt in this instance, the dates for the application and trial could have been set within Jordan time frame, but it was defence counsel’s

schedule that pushed at least the pre-trial applications to the June and July dates. Where then does the blame lie for trial dates clearly outside the 18-month limit. [ 40 ] The Crown points to communication that demonstrates it and court were available in March 2022, that is, within the Jordan limit. It maintains that it was defence counsels’ calendars therefore that caused the delay.

In reply, the defence points to dates they offered in the later summer and fall of 2022, and the absence of any dates offered by Crown in that period. [ 41 ] As I consider the circumstances here, it is entirely possible that the trial dates were set solely because of defence counsels’ calendar and not the Crown’s and court’s, but in my view it behoves the Crown to clearly demonstrate that was the case.

The Crown did not, for instance, point to any record showing their and court’s availability beyond the email to the case manager in which it offered three dates in June 2022; nor could it point to any discussion of waiver by the defence of any delay occasioned by its availability. It appears that Crown Counsel realized this problem only recently, as it sought in July this year to explore with defence counsel the possibility of earlier dates than those currently set. [ 42 ] At this point, however, I find the Crown’s efforts are certainly not proactive.

And it is no answer, at this late stage, that defence counsel’s calendars are such that they do not allow for the trial dates to be re-visited. Defence counsel cannot be required to be in a state of perpetual availability (see R. v. Godin, 2009 SCC 26 at para. 23 ). [ 43 ] In

summary, I conclude that the trial dates in this matter fall outside the Jordan limits. This is not the result of illegitimate actions undertaken by the defence; nor the result of any periods of implied or express waiver on the part of the defence. The Crown’s displeasure in the approach taken by the defence was never acted on in a meaningful and timely way. On its face, the Crown acquiesced to a procedure approved by the pre-trial judge. It did not seek any recourse as suggested it should by the authorities.

It then apparently consented to the adjournment of the matter to trial dates clearly outside the Jordan limit. Although it recently tried to take some steps to re-visit the date, this occurred long past the point that they could be considered as proactive. [ 44 ] I therefore find the accuseds’ rights under s. 11(

b) of the Charter to be tried within a reasonable time have been breached. Pursuant to s. 24(2) of the Charter I order that charges against them are judicially stayed. _______________________________ The Honourable Judge D.H. Silverman

Provincial Court of British Columbia