R. v. Shlyk, 2020 BCPC 296

Citation: R. v. Shlyk 2020 BCPC 296 Date: 20200214 File No: 96119 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALEKSEY SHLYK RULING ON APPLICATION OF THE HONOURABLE JUDGE E. JAMIESON Counsel for the Crown: W. Wakabayashi Counsel for the Defendant: M. Swartz Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: December 10, 19, 2019 Date of Judgment: February 14, 2020 [ 1 ] On September 24, 2019, I issued reasons for judgment finding Mr. Shlyk guilty of four counts of attempted fraud. The Information had been laid on July 26, 2016, some 38 months earlier.

The presumptive ceiling for Provincial Court trials is 18 months, pursuant to the Supreme Court of Canada’s decision in R. v. Jordan , 2016 SCC 27 , and Canadian Charter of Rights and Freedoms (" Charter ") s. 11(b) . While no reference was made to it during closing submissions on July 19, 2019, Mr. Shlyk had filed on July 3, 2019, an application seeking a judicial stay of proceedings on the basis of a violation of Mr. Shlyk's

section 11(

b) rights under the Charter to be tried within a reasonable time. When I delivered my reasons in court on September 24, 2019, I was informed a Charter s. 11(

b) application would need to be heard and scheduled.

[ 2 ] Pursuant to Jordan , where the delay is longer than 18 months, there is a presumptive violation of the s. 11(

b) right. In calculating the delay, however, defence delay or delay waived by defence is subtracted. Further, if after those deductions the delay still exceeds 18 months, and thus is presumptively unreasonable, it falls to the Crown to establish a basis for subtracting time attributable to exceptional circumstances, which generally falls under two categories – discrete events and particularly complex cases. I note at the outset that Crown does not suggest this was a particularly complex case. [ 3 ] As noted, the overall delay in the present case was 38 months.

If, after considering any defence delay or waiver, as well as any exceptional circumstances, the delay exceeds 18 months, a stay of proceedings will follow. The issues are therefore whether there exists defence delay, defence waiver of delay or exceptional circumstances that together brings the delay to 18 months or less. In that event, consideration can be given to any defence submission that such delay is unreasonable. However, in the present case the defence has not raised submissions that the delay would be unreasonable if 18 months or less under the Jordan principles.

Accordingly, if after consideration of defence waiver, defence delay, and exceptional circumstances the delay is 18 months or less, the conviction will stand. [ 4 ] Much depends on how this case unfolded, and how specific periods should be characterized. Consequently, some detailed information about the events of this case are required. Before embarking on that process, it would be helpful to set out the Jordan framework of analysis in broad terms. I also first want to express my appreciation to both counsel for the very helpful submissions and materials on this application.

While not every authority or submission may be specifically referenced in this decision, all were considered. [ 5 ] The Ontario Court of Appeal decision in R. v. Coulter , 2016 ONCA 704 , has been broadly accepted as stating a clear

summary of the Jordan framework: [34] Calculate the total delay , which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ). [35] Subtract defence delay from the total delay, which results in the “ Net Delay ” ( Jordan , at para. 66 ). [36] Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47 ).

If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47 ).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ). [38] Subtract delay caused by discrete events from the Net Delay (leaving the “ Remaining Delay ”) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ). [40] If the Remaining Delay falls below the presumptive ceiling , the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). [ 6 ] The cases acknowledge that the Jordan framework requires the efforts and coordination of all participants in the criminal justice system.

Both parties should focus on making reasonable admissions, streamlining the evidence and anticipating issues that need to be resolved in advance. [ 7 ] The variable areas that impact the ultimate amount of delay in a given case fall under the categories of defence delay which may either be delay waived by the defence or, second, delay caused by the conduct of the defence. The burden for establishing delay attributable to the defence rests with the Crown on a balance of probabilities ( R. v. McConnell , 2018 BCSC 2258 ).

As to waiver of delay by the defence, any such waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his rights and the effect of the waiver on those rights ( Jordan , paras. 61 and 63 ). See also R. v. Hunter , 2019 BCPC 90 . [ 8 ] Defence unavailability when both the court and Crown are available is one example of defence delay but it is open to find that other defence actions have caused delay ( Jordan , para. 64 , and R. v. Cody , 2017 SCC 31 , para. 30 ). While earlier authority ( R. v.

Godin , 2009 SCC 26 ) stated counsel are not required to hold themselves in perpetual availability, it is also recognized in the case law that Jordan did create a new framework that calls for a more exacting standard regarding counsel unavailability. I note, for instance, that the proposition from Godin was referenced in the dissent in Jordan , not the majority which instead emphasized the need to simplify and avoid resorting to nuance. Indeed, when Jordan was re-emphasized a year later in Cody , there is no reference at all to Godin and the flexibility it provided with respect to defence counsel unavailability.

Instead, it baldly stated in explaining examples of defence delay, “[s]imilarly, where the court and Crown are ready to proceed, but the defence are not, the resulting delay should be deducted” (para. 30). This makes sense as the defence is the reason for the delay in that circumstance and the reason for that delay is not

an act taken to respond to the charges faced by this accused. Without such a generalized rule, it would be necessary, in my view, for the court on a Jordan application to engage in a searching review of the case already scheduled compared to the present case to determine priority.

For instance, which case is more vulnerable to a Jordan problem, which case has an in-custody accused, etc.? (For illustrative purposes, see various factors articulated in the Provincial Court Practice Direction – Scheduling Conflicts between Provincial Court and Supreme Court , PCPD Crim-11.) This type of nuanced, flexible review is something Jordan and Cody eschews, in favour of a more easily applied rule. As stated in R. v. Wu , 2017 BCSC 2373 , at para. 63 : [A] defence counsel’s full

schedule cannot act as a shield against deduction of delay in the Jordan analysis, particularly when the defence is also bringing an application for Charter relief on the basis of that very delay. This leads to the result where accused persons hiring exceptionally busy defence counsel are more likely to receive a Charter remedy than those who hire counsel available to bring a matter to trial at an earlier date. This cannot be the result envisioned in Jordan .

It is understood and accepted that Mr. Wu can choose any counsel he wants to represent him at trial, even if that defence counsel is inhigh demand and has a busy schedule. However, an accused person cannot use his counsel’s unavailability for trial both as a sword forbringing a delay application, and a shield against deductions of defence delay or exceptional circumstances in that application. . .

Theremust be a balance between not expecting counsel to remain in a state of perpetual availability, and allowing that unavailability to counttowards unreasonable delay. [9] With respect to defence action causing delay generally, and how that should be accounted under Jordan, the court in Codyexplained as follows:

(2) Delay Caused by Defence Conduct (

a) Deducting Delay [28] In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefittingfrom “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solelyor directly” caused the delay (Jordan, at para. 66). [29] However, not all delay caused by defence conduct should be deducted under this component.

In setting the presumptive ceilings,this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time toprepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the]procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83).

For this reason, “defence actionslegitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65). [30] The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accusedperson; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan,the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolousapplications and requests” (Jordan, at para. 63).

Similarly, where the court and Crown are ready to proceed, but the defence is not, theresulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that — examples. They were not statedin Jordan, nor should they be taken now, as exhaustively defining deductible defence delay.

Again, as was made clear in Jordan, itremains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction (para. 64). [31] The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “firstinstance judges 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. [33] As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extendto omissions as well as acts (see, for example in another context, R. v. Dixon, (SCC), [1998] 1 S.C.R. 244, at para. 37).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 toavoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within areasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138). [34] This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make fullanswer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients.

Whatdefence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In thisregard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within areasonable time — and the need to balance both — in our view, neither right is diminished ​by the deduction of delay caused byillegitimate defence conduct. [35] We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part ofdefence counsel.

A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead,legitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants — defence counsel included —must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the rightguaranteed by s. 11(

b) of the Charter. [10] The Supreme Court of Canada in Jordan and Cody acknowledged how exceptional circumstances may affect delay and do notcount towards the delay ceiling. The Court in Jordan stated: Exceptional Circumstances [69] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonablyunavoidable, and

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

available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. 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. [71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11 (

b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [72] Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify.

Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition. [73] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. [74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.

Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances. [75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded.

Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell , 2016 SCC 26 , [2016] 1 S.C.R. 625).

Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [ 11 ] In Cody , the court stated: [48] The exceptional circumstances analysis begins with discrete events. Like defence delay, discrete events result in quantitative deductions of particular periods of time.

The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or unavoidable is deducted to the extent it could not be reasonably mitigated by the Crown and the justice system ( Jordan , at paras. 73 and 75 ). . . . [58] In principle, an inadvertent oversight may well qualify as a discrete event. The first prong of the test for exceptional circumstances requires only that the event at issue be reasonably unforeseeable or reasonably unavoidable. It does not impose a standard of perfection upon the Crown.

As this Court observed in Jordan , “[t]rials are not well-oiled machines” (para. 73). Mistakes happen. Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11 ( b ). [59] The question under the second prong of the test is whether the Crown took reasonable steps to remediate the error and minimize delay.

The Crown “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 ). [ 12 ] I will say at the outset that while exceptional circumstances are to only be considered if the Net Delay exceeds 18 months, in keeping with a chronological narrative, I will identify any exceptional circumstances as I proceed.

History of Proceedings Swearing of Information to the First Trial Date July 26, 2016 to September 11, 2017 – 13 months, two weeks [ 13 ] The information was sworn on July 26, 2016, with respect to Mr. Shlyk as well as a co-accused, Taylor Edwardes. The matter was placed by counsel on the trial list by October, 2016. [ 14 ] Court time was available May 23 to 25, 2017 for the trial of this matter. Crown counsel was available but Mr. Isaac Ferbey, then counsel for Mr. Shlyk, was not available as he was previously booked for a murder trial in Vernon, B.C. The next date offered was July 31 to August 2, 2017. Mr.

Ferbey was scheduled to be on vacation and, while Crown was available, Crown indicated that not proceeding on those dates would give him more time to prepare. Accordingly, the next available date was taken, which was September 11 to 13, 2017. As noted, a clear example of defence delay articulated in Cody is defence unavailability when both Crown and the court are available. Mr. Swartz points to R. v.

Ameerullah , 2019 ONSC 4537 , at para. 28 , for the suggestion that when a single date or block of time is offered to the defence and counsel is not available, not all the delay to the next date is necessarily defence delay. But that is not what Jordan and Cody say. Further, counsel relies on R. v. Sepka , 2017 BCPC 356 , for the proposition that one would not normally adjourn one court obligation for another if defence counsel is not available due to another scheduled date in another case. However, if

the court is to examine the reasonableness of defence counsel’s unavailability, the court would need to know, as noted earlier, much more about the case causing the conflict. That seems to me to be then moving into collateral matters that detracts from the application at hand. R v.

Wu appears to favour instead a more general recognition that such unavailability gives rise to either defence delay or exceptional circumstances warranting deductions from Net Delay. [ 15 ] After reflection, I conclude two months of the 13 months from the swearing of the Information to the first trial date in September 2017, is attributable to defence delay as counsel was not available for the May 2017 trial dates when Crown and the court were available. While only Mr.

Ferbey was unavailable for the July 2017 dates, it appears there was agreement between counsel to instead accept the next date, in September, 2017. Accordingly, that further delay is not attributable to defence delay. First trial date to second trial dates - September 11, 2017 to February 16, 2018 – 5 months [ 16 ] On the first day of trial, September 11, 2017, the defence applied to adjourn the September 11-13, 2017 trial dates. Mr. Ferbey was still counsel for Mr.

Shlyk. [ 17 ] The adjournment application occurred because 10 days earlier, on September 1, 2017, Crown had discovered during trial preparation with an insurance company witness, Ms. Janice Sargent, that she was in possession of an audio recording of her interview with the two accused at the time of their insurance claim. As soon as Crown learned of the recording, defence counsel were informed. Crown noted in submissions at the adjournment application, that the nature of the new evidence was "game changing".

By way of explanation, Crown indicated that a production order had been obtained by police with respect to the specific insurance company but it seemed that because the resulting order did not specifically include audio recordings, the product of the production order were simply documents, the disclosure of which was not at issue. The Crown accepted that it was a reasonable defence request for an adjournment. Then counsel for Mr. Shlyk stated that whether this creates a Jordan issue was something to be considered later.

He stated at the time (Transcript 11 Sept. 2017, page 6): I'm sure my friend will argue that this at the end of the day was an exceptional circumstance and not something that gives rise to delay that accumulates. [ 18 ] Mr. Ferbey indicated he may take a different view if considered down the road. Reference was also made during the adjournment application to the disclosure a few days before of over 30 minutes of taped phone calls with different insurance companies and, it seems, Mr. Shlyk.

Few submissions were made with respect to that recent disclosure – the emphasis was on the 90 minute or so audio recording of the interview of both accused. [ 19 ] Judge McQuillan granted the adjournment. He noted that, through no fault of their own, Crown had just learned of the evidence the week before. Crown advised defence as soon as possible and provided additional disclosure.

While Crown took the position that the trial could start on September 11, 2017, with witnesses not directly related to the new disclosure, the Court concluded that the whole trial should be adjourned. [ 20 ] The parties appeared before the court on September 26, 2017, when new trial dates of February 13-16, 2018 were fixed. [ 21 ] Regarding the five-month period between the first trial date of September 11, 2017, and the next agreed to a trial date of February 13, 2018, Crown takes the position that this delay was caused by a third-party disclosure issue over which the Crown had no control.

Crown submits that this constitutes a discrete event, qualifying as an exceptional circumstance such that those five months should be subtracted from the total time frame if the Net Delay exceeds 18 months. The defence position is that this cannot properly be considered a discrete event which the case law has said must be reasonably unforeseen or unavoidable.

The defence states that the September 2017 trial dates were established almost a year before, in October, 2016, and it would seem apparent that Crown did not do sufficient interviews with their witnesses until early September 2017, a mere 10 days before trial.

The defence asserts that had Crown been more proactive in interviewing its witnesses, the information about the audio recording would have been learned much earlier as it was learned shortly after initiating preparation discussions with the insurance witness. [ 22 ] The insurance company’s failure to bring the audio recording to the attention of Crown is to be distinguished from one where the party who has the ultimate disclosure responsibilities to the accused – the police and Crown – are the ones who find material in their files which ought to have been disclosed but was not until the eve of trial.

Had that been the situation, there is no doubt that the five months would have laid at the feet of Crown.

In this situation where a third-party witness has material that was not treated as covered by a production order obtained by police in their normal investigation of an alleged crime, should Crown bear responsibility for any delay that occurs once that information is obtained? [ 23 ] In my view, Crown and police exercised due diligence in proceeding with an accepted investigatory tool of obtaining a production order with respect to a third-party and providing disclosure of what information was received as a result of that production order.

I must remain cognizant of the practical realities of trial preparation and reliance on what third-party witnesses have already produced to the police and Crown. This is not a situation where there had been no request of that witness or their company to produce relevant documents. The problem appears to be that the insurance company or witness did not understand that an audio recording would be included in the terms of the production order. This sort of misunderstanding can be seen to be a discrete event beyond the reasonable efforts of the Crown in preparing its case.

There is no question that once Crown learned of the problem, they took immediate steps to remedy. But obviously it was too late to avoid the adjournment of the trial. [ 24 ] Accordingly, the five months delay should be considered a discrete event subtracted from the Net Delay if it otherwise exceeds 18 months. [ 25 ] At a November 14, 2017 court appearance, Mr. Ferbey advised that a month before, on October 11, 2017, Mr. Shlyk told Mr. Ferbey that he would be seeking to retain new counsel (ultimately Mr. Swartz). Mr. Ferbey had advised Mr.

Shlyk that he should do so promptly as court dates were coming up shortly – a date in January 2018 had been scheduled for a Jordan application and then trials dates for February 13-16, 2018. Mr. Swartz had not yet been retained on November 14, 2017, so the matter was put over to November 24, 2017 for Mr. Shlyk to make a personal appearance. On November 24, 2017, another counsel appeared as agent for Mr. Swartz to put

the matter over to December 4, 2017 for counsel to appear. On December 4, 2017, Mr. Swartz successfully applied for an adjournment of the February 2018 trial dates. Crown had opposed the adjournment. [ 26 ] Mr. Shlyk expressly waived the delay from the February 2018 trial dates to the next trial dates which would need to be scheduled. Mr. Swartz stated that Mr. Shlyk was not intending a Jordan application and therefore the single January 2018 date scheduled for that purpose was vacated. [ 27 ] On December 6, 2017, Mr.

Swartz was provided with outstanding disclosure and new trial dates were set – now four days - April 30, May 1, 16 and 17, 2018. Defence waived expressly the delay from February 16, 2018 to May 17, 2018. Second trial date to third trial date - February 16, 2018 to December 12, 2018 - 10 months [ 28 ] Again, on February 13, 2018 Mr. Swartz applied for a further adjournment due to a jury trial date conflict in the Supreme Court of British Columbia.

Defence again expressly waived the delay from May 17, 2018 to December 12, 2018 which was the final day of the next trial dates. [ 29 ] Thus, at the time the trial began on December 10, 2018, 28½ months had elapsed since the Information was sworn. Ten months of that period - from February to December 2018 - was expressly waived by the defence. In addition, two months was defence delay with respect to Mr. Ferbey’s scheduling of the initial trial dates. Thus, when the trial began on December 10, 2018, for Jordan purposes, the delay was 16½ months, below the Jordan presumptive ceiling.

It bears noting also that the five months between the September 2017 and February 2018 trial date, would become relevant as a discrete event if the Net Delay otherwise exceeded 18 months. [ 30 ] A pre-trial conference was held on October 31, 2018 with the time estimate of three days (December 10, 11 and 12, 2018) being confirmed by both counsel as adequate. Mr. Swartz confirmed that there were no Charter issues. Crown counsel specifically mentioned her belief that Mr. Swartz was not raising any Jordan issue. Mr. Swartz confirmed there were no Charter issues anticipated.

This is understandable in light of the Jordan delay, as noted above, being below the Jordan ceiling when the trial started on December 10, 2018. While counsel now references R. v. Hunter , 2019 BCPC 90 , with the suggestion that the waivers may lack validity due to intervening fresh disclosures, no suggestion arose at the pre-trial of concerns in that regard. Further, Jordan is expressly stated at the pre-trial as not at issue, although I expect it would be raised if the position was that earlier waivers were not valid. It is not apparent subsequent disclosures would be considered impactful on earlier waivers.

In any event, the parties were adjourned to the first day of trial on December 10, 2018. [ 31 ] The three days of trial did not prove to be adequate and three more dates (January 21, 23, and February 22, 2019) were added before the original trial dates concluded. This too proved to be insufficient. Consequently, on February 22, 2019, two further days were added (May 10 and July 19, 2019). There is some dispute as to what caused that need for additional time and how the resulting delay is properly characterized in the Jordan analysis.

Clearly, the time estimates of both parties were significantly inconsistent with what trial time proved to be necessary, but I in no way suggest the original time estimates were given in anything but good faith by both counsel. It simply supports the truism from Jordan that [t]rials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. [ 32 ] The trial began December 10, 2018, with Crown indicating that they had six witnesses, the first three or four which were lined up for the first day of trial. One such witness was Mr.

Jason Harris, an adjustor for two of the insurance companies involved. During the course of his cross examination, Mr. Swartz referred Mr. Harris to material Mr. Swartz had received in prior Crown disclosure, being an email from Mr. Harris to someone advising that legal counsel for one of the insurance companies had sent a letter to Mr. Shlyk denying coverage. Through cross-examination it became apparent that Mr. Harris had sent this email to a police officer, Cst. Jennifer Goodings. Mr. Harris did not know the date of this email nor the date of the letter denying coverage.

He was stood down to obtain that further information. After being briefly stood down he was able to determine the date of his email and that was provided as he continued under cross examination that same day. But he did not have the date of the insurance company letter denying coverage. He ultimately was unable to obtain it as it was, to him, a third party record. [ 33 ] It became apparent during the cross examination of Mr. Harris that there was correspondence between Cst. Goodings and Mr. Harris as one of the insurance adjustors that was not in earlier Crown disclosure of police materials.

On December 16, 2018, after the three scheduled days of trial, Mr. Swartz made a consequential disclosure request to Crown for all records related to Cst. Goodings, as well as documents from Cpl. Tremblay and any other officers involved in the investigation. That request was responded to with further disclosure on January 9, 2019. Among the material then provided was a recent email from Cst. Goodings to Crown indicating that, due to an error in moving email files, the content of emails between Cst.

Goodings and the various insurance companies were not retrievable other than screen shots showing the folders in which those emails were originally placed. Crown set out in their January 9, 2019 letter to Mr. Swartz how they dealt with emails of each of the four insurance companies to which the active charges related. [ 34 ] Mr. Swartz sent an email to Mr. Harris on December 22, 2018, seeking disclosure of records. The first of four listed items was correspondence between himself and the RCMP about the matter. The other three items were records of correspondence Mr. Harris had with third parties (not police).

Crown’s letter of January 9, 2019, also enclosed what material Mr. Harris provided that was responsive to Mr. Swartz request in his December 22, 2018 email to Mr. Harris. Crown submits that disclosure should have been sought at the pre-trial conference in October 2018 so that the trial would not be delayed. [ 35 ] In addition, another Crown witness on the first day of trial was Mr. Roy Fan, the adjustor for the British Columbia Automobile Association (BCAA), one of the four insurance companies that were the subject of the charges before the Court. [ 36 ] The evidence of Mr.

Fan became more prolix than may have been necessary, as he appeared to take some additional time to appreciate the purpose of questions put to him, particularly during his cross-examination, and efforts during that process to learn if there were further records that Mr. Swartz would seek production. Mr. Swartz acknowledges Mr. Fan was a difficult witness. The first day of trial ended with Mr. Fan under cross-examination by Mr. Swartz. When specifically asked by Crown counsel whether Mr. Swartz was looking for further documents from Mr. Fan, Mr. Swartz said “no, that’s fine”.

This changed the next day during further cross-

examination of Mr. Fan, when it became apparent that Mr. Fan had documentation that indicated when he became aware that Mr. Shlyk had other insurance policies. It appears in view of the prolix and unclear answers being provided by Mr. Fan, Mr. Swartz ultimately sought a direction that Mr. Fan bring to Court "the entire investigatory file or claims file as it relates to Mr. Shlyk". Mr. Fan was stood down at that point and, so as not to lose court time, and the next Crown witness began their evidence and Mr. Fan would be recalled once the documentation issue had been resolved.

This occurred the next day after the direct and cross-examination of the remaining Crown witnesses occurred. Cross-examination of Mr. Fan continued throughout the afternoon sitting of the Court and it was after the normal end time for the court day that Mr. Fan was ultimately excused. This was the end of the originally scheduled three days of trial. [ 37 ] By the end of the originally scheduled three days of trial (December 10, 11 and 12, 2018), Crown had essentially completed its case, taking the first few minutes of what became the next scheduled day, January 21, 2019, to file various admissions and exhibits.

Defence indicated at the last scheduled day (December 12, 2018) that two more days would be necessary (Transcript December 12, 2018 at page 27). This estimate included the possibility Mr. Shlyk would testify. End of scheduled trial dates to the end of next scheduled dates - December 12, 2018 to February 22, 2019 - 2 months and one week [ 38 ] What was not known when the defence estimate was provided on December 12, 2018, was that there would be a defence directed-verdict application.

This application was brought to Crown’s attention a few days after the December trial dates, but before Crown and Defence attended December 18, 2018 to fix the continuation dates. When Mr. Swartz advised Crown of the directed verdict application he still maintained the two-day estimate (an initial ½ day followed by 1.5 days) (email of December 16, 2018). [ 39 ] Thus, on December 18, 2018, counsel appeared and confirmed a ½ day on January 21, full day on January 23 and a further ½ day on February 22, 2019. The new dates added a further 2 months and one week onto the trial.

The directed verdict submissions took the ½ day on January 21, 2019, preceded briefly that day, as noted, by various Crown admissions and exhibits and Crown closing its case. Later on January 21, 2019, Mr. Swartz emailed Crown to say that in light of the evidence he anticipated leading, the case would not likely complete on the next full day scheduled, January 23, 2019. Mr. Swartz suggested an additional date be obtained and that his earliest possible availability was April, 2019. The next day, on January 22, 2019, Mr.

Swartz again emailed Crown acknowledging the last currently scheduled date was the afternoon of February 22, 2019 only. He said Mr. Shlyk’s evidence, would take a full day or close to it so he would not conclude on January 23, 2019. He suggested therefore that Mr. Shlyk would complete on February 22, 2019 and again stated a day would be required in April, 2019, presumably for submissions. [ 40 ] It was apparent that the defence two-day estimate following the December trial dates was an underestimate and that, as of January 22, 2019, a further date beyond February 22, 2019, would be necessary.

This did not change despite February 22, 2019, becoming a full day trial date when, on February 4, 2019, Mr. Swartz was able to confirm that he had made himself available for the other half of February 22, 2019. [ 41 ] As noted, the ½ day on January 21, 2019, was taken with hearing the directed verdict application which I dismissed with oral reasons provided two days later, at the start of the full day of trial on January 23, 2019. [ 42 ] Following that decision on January 23, 2019, Mr. Shlyk took the stand as the only defence witness.

His direct and cross- examination completed on the scheduled dates (January 23 and February 22, 2019). However, in light of one line of questioning by Ms. Wakabayashi during cross examination on February 22, 2019, Mr. Swartz requested that he not be required to engage in redirect until he was able to ensure he had necessary documents related to uncharged conduct. There was about 1½ hours of the court day still available when this occurred. I expect that Mr. Shlyk would have otherwise completed his evidence on February 22, 2019 and one day for submissions could have then been scheduled. During Ms.

Wakabayashi’s cross-examination of Mr. Shlyk, she sought to ask him about the costs to him of insurance that was not subject to the charges before the Court. Over defence objections I allowed the cross examination questions on the basis that the amount paid for all insurance Mr. Shlyk and Ms. Edwardes appeared relevant. The earlier evidence of Mr. Shlyk had been that they were ultimately trying to save money by having several policies covering the same loss. (pp. 38-39, 22 Feb 2019 Transcript). Mr.

Swartz warned that such questions might expand the trial, as he would want to know specifics of each policy related to uncharged conduct. The day concluded by discussing the need for further dates. Mr. Swartz indicated two further dates would be needed - one to complete evidence and another for submissions.

End of the first set of continuation dates to end of submissions - February 22, 2019 to July 19, 2019 - 5 months [ 43 ] At the outset of the discussion of this period, it bears noting that after February 22, 2019, no further evidence was led until July 19, 2019, and that involved less than ½ an hour of such further evidence (completion of cross examination and re-direct of Mr. Shlyk) before closing submissions began and completed on that latter date. [ 44 ] At the February 22, 2019 scheduling discussions on the record, the Court and Crown were available March 19 and 20, 2019, but Mr. Swartz was not available.

The Court was available, and Crown could make herself available for April 17 and 18, 2019, but Mr. Swartz was not available. The next available date was May 10, 2019. Mr Swartz indicated that from May 10, 2019, to July 8, 2019, he was otherwise not available (Transcript Feb. 22/19 at page 83). The Court was not available July 8, 2019. All were available July 19, 2019, and that full day was set for closing submissions. May 10, 2019 would be used for any further evidence. Ms. Wakabayashi volunteered a willingness to discuss possible admissions with Mr.

Swartz to expedite matters. [ 45 ] It is apparent that as of the end of February 2019, the trial could have been scheduled to complete in March, or April, 2019. Four dates were available to the Crown and the court in those two months but only two days were estimated as needed. The trial was not then so scheduled due to defence unavailability. Instead, the two further trial dates were May 10, 2019 and July 19, 2019 – this meant the trial was scheduled to complete some three or four months later.

It is important to note that the function of those dates changed, particularly the May 10, 2019 date, when, on April 15, 2019, Mr. Swartz informed Crown that he would likely be proceeding with a third-party records application for two insurance companies which were not related to any charges. On April 23, 2019, Mr. Swartz followed through by serving Crown and the two insurance companies with the third-party records applications, with the application to be heard on the previously scheduled May 10, 2019, trial date. That date then became lost to possibly hearing the last of the evidence, as was originally

planned when the date was scheduled. [ 46 ] While a reasonable amount of time is necessary for defence to determine what applications should be properly made, and to produce the necessary material to submit such an application, in my view the delay in the present case was longer than reasonable in the circumstances. Two months had elapsed from February 22, 2019 (when cross examination of Mr. Shlyk prompted Mr. Swartz to assert those questions could result in expansion of the trial), to when Crown and the insurance companies were served with the application on April 23, 2019.

And more than three months had elapsed since Mr. Swartz learned through the January 9, 2019 letter from Ms. Wakabayashi that Cst. Goodings no longer had copies of emails with the insurance companies. The same January 9, 2019 letter sought to mitigate this by stating the steps taken by Crown to fill the gap of material. There nevertheless remained a gap. The April 23, 2019 application for third-party records makes specific reference to this gap of material from Cst.

Goodings and counsel’s desire to fill that gap by way of the April 23, 2019 application. [ 47 ] Context is important in judging the timeliness of defence action. When that mid-trial application was pursued, the original trial dates in December 2018 had already been spent after the trial time estimates were found woefully short. Before the next set of continuation dates in January and February, 2019, occurred, Mr. Swartz was aware that he had an interest in the third-party records in light of the identified gap in Cst. Goodings’ emails.

Then those January and February hearing dates became spent and a second set of continuation dates were then scheduled (May and July). [ 48 ] The need for efficiency in pursuing applications in that context was pressing. This context distinguishes the present case from R. v. Ramsunahi , 2017 ONCJ 749 , relied upon by the defence for the suggestion that 12 weeks for a pre-trial application would be reasonable. [ 49 ] In the circumstances, one might reasonably expect that the Defence would make its decision about any necessary applications soon after the January 9, 2019 letter from Crown explained the gap in Cst.

Goodings’ material or at least shortly after the February 22, 2019 trial date, and call the matter ahead to have that application heard as soon as possible. The application, when ultimately heard was not opposed by the insurance companies, nor by Crown. These positions could have presumably been discerned in advance and streamlined the application process. The relatively brief time needed to hear the application and make the order on May 10, 2019, meant a further 1½ hours of court time was lost.

While my making the order sought shows I concluded that application itself was a legitimate defence step taken in answer to the charges, the manner in which it was pursued by defence unnecessarily added to the delay . I would ascribe a month of this period as defence delay. I also note that it was not apparent anything of value to the defence came of those records once produced. See R. v. Serban , 2017 BCSC 17 , paras. 45-46 . Indeed, in reviewing the transcript of May 10, 2019, one senses Mr. Swartz did not expect his redirect of Mr.

Shlyk would be prolonged by what he may discover through the third-party disclosure. As he said near the end of the May 10, 2019 appearance when his application for third party records was successful, and obviously before he saw any resulting records, “my re-direct’s only going to be 10 minutes and then I’m prepared to immediately embark upon submissions” (page 23, May 10/19). This was prophetic since, as mentioned earlier, both Ms. Wakabayashi’s completion of cross examination and Mr. Swartz’s re-direct of Mr. Shlyk was, in total, less than ½ an hour on July 19, 2019. Mr.

Shlyk referred to a transcript of phone calls with Square One Insurance – one of the third party insurers – which was obtained through the third-party records application. But the audio of those calls was provided in September 2017 disclosure (Crown Book of Documents, tab 32). This buttresses my view that the defence needs to have some responsibility for the delay involved in dealing with this application. [ 50 ] I also consider that defence counsel’s unavailability for the March and April, 2019 dates is an aspect of defence delay. Again context is important.

Once the original trial dates were found clearly insufficient to complete the trial, and so too the first set of three continuation dates (January 21, 23 and February 22, 2019), there arose a more pressing need for all counsel to address the growing delay. Against that background, when two further continuation dates were needed after, and discussed on, February 22, 2019, the Crown and the court were able to provide options of four days in March and April, 2019, in order to accommodate the two days needed. The defence was not available for any. Instead, the May 10 and July 19, 2019 dates were scheduled.

Again, the accused is entitled to the counsel of their choice and very skilled defence counsel like Mr. Swartz will have limited dates. But that lack of availability does not completely overtake the need then for defence to take some responsibility for the resulting delay. [ 51 ] Mr. Swartz argues that, in light of the records disclosure application and attendant steps involved both before and after the application, he would have been compelled to seek an adjournment of those March or April dates in any event.

In light of my earlier comments about the need for a more expeditious pursuit of third-party records, I believe use could have been made of the March, or at least the April dates, so that the May 10, 2019 date could have been the final date of the trial proper. [ 52 ] Returning then to the significance of Mr. Swartz’s lack of availability, I note again the comments in R. v. Wu , 2017 BCSC 2373 , at para. 63 : [A] defence counsel’s full

schedule cannot act as a shield against deduction of delay in the Jordan analysis, particularly when the defence is also bringing an application for Charter relief on the basis of that very delay. This leads to the result where accused persons hiring exceptionally busy defence counsel are more likely to receive a Charter remedy than those who hire counsel available to bring a matter to trial at an earlier date. This cannot be the result envisioned in Jordan . It is understood and accepted that Mr.

Wu can choose any counsel he wants to represent him at trial, even if that defence counsel is in high demand and has a busy schedule. However, an accused person cannot use his counsel’s unavailability for trial both as a sword for bringing a delay application, and a shield against deductions of defence delay or exceptional circumstances in that application. . .

There must be a balance between not expecting counsel to remain in a state of perpetual availability, and allowing that unavailability to count towards unreasonable delay. [ 53 ] I would therefore conclude that at least the delay from May 10, 2019 (a scheduled date that could have been used for submissions), to when the trial actually would have ended on the earlier July 8, 2019 date that defence was available – or two months - must be considered defence delay. [ 54 ] In

summary, and against that background, I conclude that defence carries responsibility for a portion of the delay during the five-

month period between February 22, 2019 to July 19, 2019. Had there been timely pursuit of the third-party records application, and had defence counsel availability not been so challenging, I expect it is reasonable to conclude the trial could have ended by May 10, 2019. That would have been possible had even one of the four dates offered in March and April, 2019, been scheduled.

The brief records application could have been called ahead and dealt with in March 2019, and the completion of evidence could have reasonably concluded in April 2019 with final submissions heard on the May 10, 2019 date. [ 55 ] In conclusion on these points, the total amount of defence waived time (10 months), and defence delay (5 months) as described above, totals 15 months. With total delay at 38 months, this leaves Net Delay at 23 months, well over the presumptive ceiling.

However, taking into account the five months I have concluded constitute an exceptional discrete event related to the adjournment after discovery of the audio recording by Ms. Sargent, this brings the delay to 18 months. Accordingly, as the delay is not above the presumptive ceiling, the Jordan s. 11(

b) application can be dismissed on that basis. [ 56 ] However, for the sake of completeness, and in the event I am wrong about ascribing defence delay during relevant periods, I will also consider whether any portion of the period from the end of the December, 2018 trial dates and July 19, 2019, involves a discrete exceptional event, or circumstances that are reasonably unforeseeable or unavoidable, and to what extent they should be deducted from any Net Delay over 18 months. As noted in Jordan and Cody , “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.” ( Cody at para. 45 ). [ 57 ] The words of the SCC in Jordan bear repeating as it described various scenarios as exceptional circumstances: [73] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. [74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.

Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances. [ 58 ] The BC Supreme Court in Wu noted that defence counsel unavailability may, for example, be considered exceptional circumstances outside of the control of Crown, and therefore can be properly deducted from Net Delay.

This theme continues in R. v. Christhurajah , 2017 BCSC 820 , where defence counsel was unavailable for a significant amount of time due to other Court obligations. Defence counsel argued that the Crown and the court were only available for some portion of that, and therefore defence should not be held accountable for the total delay. The Court concluded that the defence had made clear it was not going to be available for that significant period, defence had essentially closed the door on proactive efforts by the court and or Crown to bring the case forward.

The Court stated, at paras. 84 and 85: It defies logic and common sense to say that the delay caused by the unavailability of defence counsel for all of 2015 is unreasonable delay for which the Crown must answer. I am of the view that where, as in this case, the unavailability of defence counsel effectively closes the door on proactive efforts of the Court and/or the Crown to bring the case forward, the resulting delay may not properly be characterized as defence delay as a result of the framework set down in Jordan , but it is surely an exceptional circumstance beyond the control of the Crown.

Such delay can only be fairly characterized as a circumstance the Crown could not have reasonably foreseen or avoided. [ 59 ] Accordingly, the Court subtracted the significant period from the totality of the delay. See also R. v. Nazarek , 2017 BCSC 2340 , at para. 133 . [ 60 ] In the present case, the trial did not complete on December 12, 2018, as both counsel had estimated it would. Additional time became necessary due in part to the evidence of witnesses taking longer than anticipated – particularly Mr. Fan whose evidence actually spread over all three days of those initial three days of trial.

While I do not believe he intended to be, he was a difficult witness in terms of his initial understanding of questions put to him and the extent of his responses. There was little Crown could do to address the prolixity of his evidence as that characteristic came up primarily during cross examination. When issues of further records being sought from Mr. Fan came up, Crown sought to assist. [ 61 ] This was just one aspect of the circumstances for both Crown and Defence that created a broad expansion of the trial time necessary to complete this case.

This broad expansion was reasonably unforeseen or reasonably unavoidable, particularly in light of the shared view with defence that the three days initially estimated for this trial was sufficient. The trial required almost double the trial time both counsel estimate, involving five additional trial days after the original three were completed. In order to

schedule those additional five days, an additional seven months elapsed. This is what happens, in my view, when several new and unexpected continuation dates becomes required in relatively short order in the context of an already busy defence counsel and two new, and legitimate, applications are made by the defence in the course of these additional five days. The case law acknowledges the cascading effect of such circumstances in causing unavoidable greater delay.

When parties and the court are then required to scramble to come up with a significant number of new court dates in the face of an already busy court and counsel schedule, the effects on delay begin to cascade into further delay.

In other words, finding five additional trial dates when the trial is still many months off is significantly more straightforward than trying to find five additional trial dates while in the middle of the originally scheduled trial dates. [ 62 ] In my view, Crown took reasonable steps to address the delay emanating from these events by, for instance, being available in short order for new continuation dates in January (21 and 23) and February 22, 2019, but also being available for four further dates in

March and April, 2019, when the Court was also available. Unfortunately, Mr. Swartz was not available those latter dates, so that when new dates were being established on February 22, 2019, the continuation dates were pushed five months down the road. While document and disclosure issues arose from the original three days of trial, Crown addressed those in early January 2019. No adjournment applications were made to address those issues or because of those issues.

The one application I heard related to third party documents over which Crown did not have control and they could not expedite that process, other than by not opposing the application, which is what occurred. [ 63 ] This analysis that the delay following the December 2018 dates engages discrete events that Crown could not reasonably foresee or avoid does not rely on any negative conclusion about the legitimacy of defence applications nor whether Mr. Swartz was reasonably available, other than to acknowledge those matters were outside of Crown control.

In my view, Crown took reasonable steps to avoid the effect of the mutual underestimation of the trial length and the resulting need for five additional trial dates. In my view, these events were a discrete events regarding which Crown has demonstrated they are exceptional circumstances. In my view it would be appropriate to deduct at least five of the seven further months it took to complete the trial proper.

In this regard, I accept that, viewing matters realistically, it is arguable one could reasonably foresee that a three-day trial may have a small contraction or expansion so that a brief continuation beyond the initial three days may be necessary. But a further delay beyond one set of continuation dates was reasonably unforeseeable and, in my view, unavoidable for Crown. Conclusion [ 64 ] In

summary, the appropriate deductions from the 38 month delay (Total Delay) from the date of the Information to the date Reasons for Judgment were issued are as follows: - 2 months - defence delay - when setting September 2017 trial dates – Crown and court available May 23-25, 2017 for the trial – neither counsel available for July 2017 date, thus delay from July to September is mutual – defence only accountable for 2 months delay from May to July; - 5 months – discrete event – delay between September 2017 trial dates and next scheduled trial dates of February, 2018 – caused by discovery of important new evidence in the hands of a third party; - 10 months – defence delay - expressly waived by the defence – from February to December 2018; - Total deductions – 17 months – Remaining Delay is 21 months (38 months minus 17 months). [ 65 ] Then, add the following regarding the period from December, 2018, to the delivery of Reasons for Judgment on September 24, 2019: - 1 month – defence delay in executing pursuit of its third-party records application; - 2 months – defence delay arising from counsel being unavailable from May 10 to July 8, 2019; - Grand total deductions – 20 months – Remaining Delay is therefore 18 months (38 months minus 20 months). [ 66 ] Alternatively, regarding that period from December, 2018 to the delivery of Reasons for Judgment on September 24, 2019, 5 months should be deducted for the exceptional circumstances or discrete events arising as described earlier.

In that event, the total deductions would be 22 months, making the Remaining Delay therefore 16 months , or two months below the presumptive ceiling. [ 67 ] Accordingly, I dismiss the application under Charter s. 11(b) . ________________________________ The Honourable Judge E. Jamieson Provincial Court of British Columbia