R v WG, 2023 ABKB 613

Court of King’s Bench of Alberta Citation: R v WG, 2023 ABKB 613 Date: 20231102 Docket: 191109792Q1 Registry: Wetaskiwin Between: His Majesty the King Crown - and - WG Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Decision on Charter Application of the Honourable Justice Graesser _______________________________________________________

Introduction [ 1 ] WG is charged that: 1. On or about the 3rd day of September, 2019, he did knowingly utter, convey or cause AB to receive a threat to cause death or bodily harm to 3 kids, contrary to

section 264.1(1)(

A) of the Criminal Code of Canada ; 2. On or about the 3 rd day of September, 2019, he did operate a motor vehicle or vessel while being pursued by a peace officer, and did, without reasonable excuse, fail to stop as soon as it was reasonable in the circumstances, contrary to

section 320.17 of the Criminal Code of Canada ; and 3. On or about the 3 rd day of September, 2019, did unlawfully commit a sexual assault upon AB, contrary to

section 271 of the Criminal Code of Canada . [ 2 ] At the conclusion of the Crown’s case, WG elected to call no evidence and indicated that he intended to bring a Charter application as a result of alleged violations of his

section 11(

b) rights. The trial was adjourned to allow WG to bring his application and file and serve the necessary materials on the Crown. That was done by August 22, 2023 when WG filed an affidavit sworn August 19 th , 2023, his Charter notice, and argument. [ 3 ] The Crown filed responding materials on September 28, 2023. WG has filed no responding materials. This is my decision on the Charter application. Application [ 4 ] WG’s affidavit sets out the chronology in this matter. He has attached transcripts of the numerous court appearances leading to the trial, which was ultimately held commencing June 26, 2023.

I will summarize them as follows: September 4, 2019 Information sworn September 6, 2019 Charge, remanded in custody September 18, 2019 Judicial interim release, adjournment for disclosure and election October 1, 2019 Adjourned for disclosure and election (October 29, 2019 Disclosure provided) November 5, 2019 Adjourned, counsel away December 3, 2019 Adjourned for resolution discussions (December 11, 2019 Bail amendment application heard) January 7, 2020 Election to trial in Provincial Court, adjourned for setting date January 22, 2020 Trial set for October 20, 2020 October 20, 2020 Re-election to trial by judge and jury; preliminary inquiry waived, WG committed to stand trial; adjourned for arraignment in QB Wetaskiwin, November 3, 2020 (October 28, 2020 Trial prebooked for judge and jury trial starting January 17, 2022) November 3, 2020 Arraignments; trial set for January 17-21, 2022 June 18, 2021 Pre-trial conference June 22, 2021 Brought forward, defence counsel off record; WG asks to be self-represented; Crown seeks

section 486 counsel; trial date still January 2022 (date not known) Greg Genest appointed as

section 486 counsel November 25, 2021 Pretrial conference; WG self-represented; Greg Genest in attendance (January 17, 2022 Trial cancelled because of COVID-19 under Queen’s Bench Master Order 6; put over to arraignments for resetting trial date) February 8, 2022 Trial rescheduled to February 13-17, 2023 (February 8, 2023 Greg Genest advises he no longer

section 486 counsel) (February 8, 2023 Kinglsey Okosun appointed new

section 486 counsel)

(February 10, 2023 Kingsley Okosun advises he in conflict with WG) February 13, 2023 Trial adjourned because no

section 486 counsel February 21, 2023 Trial booked for March 27-March 31, 2023, adjourned to February 28 in arraignments as to appointment of

section 486 counsel February 28, 2023 No

section 486 counsel as yet; trial rescheduled to June 26- 30, 2023; adjournment to March 28, 2023 to check on appointment of

section 486 counsel March 28, 2023 No

section 486 counsel; Court orders Legal Aid to appoint one; adjournment to April 25, 2023 to check on appointment; WG notes current trial dates at 42 month mark (date not known) Ike Ulasi appointed

section 486 counsel) April 25, 2023 Trial dates June 26-30, 2023 confirmed June 26, 2023 Trial commences (judge alone as a result of re-election) Analysis [ 5 ] The Jordan analysis is a step by step process that requires the Court to: i. Calculate the total delay that has elapsed from the sworn date of the first information to the anticipated conclusion of the trial; ii. Determine whether any period of delay is caused by “defence delay”, and subtract that from the total delay; and iii.

Compare the net delay to the “presumptive ceiling” of 30 months for a Court of King’s Bench trial. [ 6 ] Defence delay is delay caused solely by the conduct of the defence and includes any periods where the defence has waived the delay. [ 7 ] Ultimately, if the “net delay” still exceeds the presumptive ceiling, any delays caused by “discrete events” that were reasonably unforeseen or unavoidable and were not able to be reasonably remedied once they arose may be deducted. [ 8 ] If after deducting these discrete events the net delay is still over the ceiling, the presumption of unreasonable delay applies.

That presumption can only be negated where the Crown can demonstrate that the case was particularly complex. [ 9 ] The originally scheduled trial dates in January 2022 would have been within the Jordan [1] threshold by a month or so, with an elapsed time of 28 ½ months.

The COVID-19 delay was 13 months, so if the February 2023 trial had proceeded, it would have concluded just under 42 months from the swearing of the information. [ 10 ] Ultimately, the trial did not proceed in February 2023 and was adjourned to June 26, 2023, a further period of 3 ½ months. [ 11 ] The Crown does not argue that this case was complex such that the issues on this application will focus on any defence delays and any discrete event delays.

The issues, therefore, firstly require consideration of the COVID-19 delay, and then an analysis of the causes and consequences of the period from January 21, 2022 to the eventual end of trial on June 30, 2023 to see if any of that period relates to defence delays or discrete event delays. That period was approximately 3 ½ months, and brought the overall time to 45 ¾ months, nearly 16 months over the presumptive ceiling. [ 12 ] The delay from February 13, 2023 resulted from the unavailability or lack of appointment of a lawyer to cross-examine the complainant under

section 486 of the Criminal Code . While Greg Genest had been appointed by Legal Aid sometime between June 2022 and November 2022, and he appeared at the pre-trial conference on November 25, 2022. He withdrew as

section 486 counsel because of conflicts with WG shortly before the commencement of the trial in February 2023. [ 13 ] As a result of that, the trial was ultimately rescheduled to commence June 26, 2023. Cases cited [ 14 ] WG refers to several cases in support of his arguments: R v MG , 2023 ABPC 38 ; R v Ghraizi , 2022 ABCA 96 ; R v DeBoer , 2021 ONCJ 690 ; and R v Brace , 2010 ONCA 689 . In addition to Jordan , Mamouni , and Coulter , the Crown cites:

R v Pettitt , 2021 ABQB 84 ; R v Fischer , 2021 ABQB 345 ; Kalashnikoff v Her Majesty the Queen , 2021 ABQB 327 ; and R v Kelly , 2022 ABPC 82 . COVID-19 Delay [ 15 ] WG argues that the COVID-19 delay from January 17, 2022 to February 13, 2023 “could and should” have been mitigated. He argues that “picking a trial date 53 months away hardly seems reasonable”. WG notes that when the February 13, 2023 trial had to be adjourned, “the Crown was able to reschedule two potential (one actually used) trial dates, within three weeks of the adjournment of the second trial.

He suggests that 6-8 months would have been a more reasonable time for the original COVID-19 delay. [ 16 ] The Crown disputes WG’s arguments and submits that the entirety of the period between January 17, 2022 and the recommencement of the COVID-19 delayed trial in February 2023 be treated as a discrete exceptional circumstance. Analysis [ 17 ] WG bears the burden of proof on his Charter application. He takes no issue with the need for the trial in January 2022 to be adjourned because of COVID-19. He argues that it should have been able to reschedule the trial much sooner than it eventually was.

WG uses the circumstances of the February 2023 adjournment, where the trial was able to be rescheduled initially to March 2023 and later to June 2023, as evidence that the Crown could have mitigated against the delays resulting from the COVID-19 adjournment. [ 18 ] The transcript for the February 8, 2022 appearance where the February 13-17, 2023 dates were set on the record simply reflected that the Crown and the Accused had scheduled those dates. [ 19 ] There is no evidence that there were any earlier dates discussed or proposed, and there is nothing in WG’s affidavit to suggest that in pre-booking the February 2023 dates after the COVID-19 cancellation there were any earlier possible dates for a week-long judge and jury trial in Wetaskiwin that the Crown was not available for. [ 20 ] The cases cited by WG do not assist him with his argument.

R v MG does not deal with COVID-19 and the evidence there was that there had been earlier trial dates available that the Crown was unavailable. [ 21 ] R v Ghraizi focused more on the impact of a delay firstly from Crown unavailability and then from Crown counsel’s illness. Those delays were then compounded by COVID-19. The trial judge had held that once the Jordan ceiling had been breached, the Crown could not simply point to past delays. The Court of Appeal stated at para 12: [12] We agree with both the trial judge and

summary conviction appeal judge that Crown counsel’s illness, unavailability due to the assigned Crown’s jury trial extending, and the Covid-19 pandemic were exceptional circumstances. However, identifying an exceptional circumstance is not sufficient. As the Supreme Court of Canada instructs us in Jordan , at paras 74-75 , once the ceiling is exceeded, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling” and that “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance.

So too must the justice system”. [ 22 ] That case focused on delays before the COVID-19 pandemic, and not delays caused by the pandemic. [ 23 ] I do not see that R v DeBoer assists WG, as in that case the accused’s delay application was dismissed because there was no evidence as to the availability of Crown and Court resources during the period between January 2022 and February 2023. [ 24 ] R v Brace is a pre- Jordan decision that does not assist on either of the delay issues in this case. [ 25 ] The Crown cites R v Pettitt .

In that case, Renke J held that the pandemic was an exceptional event, which was unavoidable (at para 18). He concluded at para 21: [21] The Courts did what could be done to get jury trials heard as soon as possible – and did what could be done to have all other litigation matters heard as soon as possible. Some triage and prioritization was inevitable (e.g. for in-custody accuseds). There is no foundation for any claim that the Courts did not resume jury trials at the earliest reasonable opportunity. [ 26 ] Justice Renke noted at para 27: [27] Not all jury trials could be heard starting on the same date.

There are not enough courtrooms, not enough Court Clerks, not enough Sheriffs, not enough Jury Officers, not enough judges. And matters besides jury trials have priorities as well. [ 27 ] The remaining analysis in that case focused on the period between April 2020 to February 12, 2021, which is not of assistance in this case. [ 28 ] R v Fischer rejected the argument that COVID-19 delays should be limited to the period from March 11, 2020 to September 8, 2020, when jury trials recommenced in Edmonton (see para 17). [ 29 ] In Kalashnikoff v Her Majesty the Queen , Justice Dilts dealt with COVID-19-caused delays.

She stated at para 32:

[32] Against these observations, I have not been presented with any evidence that suggest this Court should have mitigated the delay caused by the COVID 19 pandemic differently. Nor am I aware that any Canadian jurisdiction responded materially differently than here. In fact, the Court of Queen’s Bench response to the pandemic was consistent with that of other superior courts across Canada. See, for example, R v Walker , 2020 ONSC 8153 .

And nationally, an Action Committee on Court Operations in Response to COVID 19 co-chaired by the Attorney General Canada and the Chief Justice of Canada was established to provide national leadership to support the safe return of court operations, while ensuring the safety of court users and staff. [ 30 ] She concluded that the entire delay occasioned by the COVID-19 pandemic from May 5, 2020 to the anticipated completion of the trial on May 21, 2021 was an exceptional circumstance and should be deducted from the total delay.

Conclusion on COVID-19 delay [ 31 ] As in Fischer and Kalashnidoff , there was no evidence presented by WG demonstrating that there were earlier slots available for a one week jury trial in Wetaskiwin than were offered to WG and the Crown. There is no evidence that the Crown was not available for the earliest potential date. No part of the delay can be attributed to the Crown. [ 32 ] I can take judicial notice of scheduling issues in Wetaskiwin.

The resources for criminal jury trials in that judicial centre are limited by the availability of courtrooms, the availability of clerical and administrative staff, and limited judicial resources. Wetaskiwin is generally served by judges from Edmonton and Red Deer. All judicial centres struggled to re-schedule trials adjourned because of COVID-19 while attempting to

schedule matters not delayed by COVID-19. Care had to be taken with respect to matters not directly affected by COVID-19 to keep them from falling into Jordan territory. [ 33 ] WG argued that the availability of new trial dates when the trial had to be adjourned a second time, this time because of the unavailability of

section 486 counsel, demonstrates that new trial dates are available in relatively short order. That is an apples to oranges comparison, because different time periods were involved. I cannot draw the inference that because new trial dates within a few months were available in February 2023, similar availability should be presumed for earlier times.

The availability of trial dates is a dynamic situation, heavily dependent on cancellations, earlier completions, and adjournments. [ 34 ] Absent evidence that an earlier trial date was available at a particular point in time and could not be utilized because of Crown scheduling or other matters attributable to the Crown, the actual rescheduling time for a matter adjourned for COVID-19 reasons should be considered to be an exceptional circumstance and the time deducted from any overall delay. [ 35 ] The burden of proving a Charter breach is on the accused.

WG has not discharged that burden, and accordingly his delay application fails. [ 36 ] WG provided evidence as to some of the hardships this delay has caused to him. That is most unfortunate, but virtually everyone has suffered hardships as a result of the COVID-19 pandemic and strictly enforcing Jordan timelines in the face of these exceptional circumstances is simply not appropriate.

Section 486 Counsel Delays [ 37 ] Mr. Genest and WG had a falling out of some sort just before the trial was to start in February 2023. There is no evidence that had anything to do with the Crown. Legal Aid appointed a new

section 486 counsel that day, Kingsley Okosun, but two days later (the Friday before the trial was to start), Mr. Okosun withdrew because he was in a conflict with WG. He had apparently represented the Complainant in another matter involving WG. New counsel was not found by Legal Aid in time for the trial to start, and it was adjourned. [ 38 ] Two trial dates were offered on February 13, 2023: March 27 and June

Section 486 counsel was not found in time for the March 27 start, and on March 28 the June 26 start date was confirmed. [ 39 ] WG argues that even accepting the COVID-19 delays as excusable, the delays occasioned by the absence of cross-examining counsel pushed the time past the presumptive ceiling. [ 40 ] WG’s math is correct, but the success of his argument depends on whether the Crown is responsible for or should be charged with any delays or failures in the Legal Aid appointment process. [ 41 ] Obviously, something went wrong with the appointment of new counsel, although that is likely understandable because of the tight time frame and urgency involved.

Trying to find someone on Friday who is available and willing to take on the daunting task of cross-examining the complainant in a sexual assault case that starts on Monday is daunting. Legal Aid’s inability or failure to do so over the course of a weekend is not something they should be criticized for. Haste frequently leads to imperfect results. [ 42 ] The Crown relies on R v Kelly regarding delays caused by Legal Aid.

There, the trial judge refused to find Legal Aid “solely responsible” for the 223 days and 10 adjournments resulting from delays in finding counsel for the accused. [ 43 ] Justice Neustaeter referred to R v Koruz , 1992 ABCA 144 , where the Court of Appeal disagreed with the defence argument that Legal Aid delays in appointments were unacceptable delays and attributable to the Crown (at para 73).

I note this decision was under the old Askov regime [2] , and not under Jordan . [ 44 ] The Court of Appeal also noted at para 75: [75] Second, no evidence was led as to general systemic inadequacies in the legal aid system in this Province. I reject the suggestion that one should simply start the clock running against the Crown as soon as an accused applies for legal aid. The Crown is

not responsible for arranging legal counsel for an accused. [ 45 ] Here, the appointment of counsel was under

section 486.3(2) of the Criminal Code . That

section states:

(2) In any proceedings against an accused in respect of an offence under any of sections 264 , 271 , 272 and 273 , the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination.

If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination. [ 46 ] As can be seen, it is the judge or justice who is to appoint such counsel. It is a mandatory requirement whenever requested by the prosecutor or the complainant. That is a task left to the trial judge. The first step is to involve Legal Aid.

The Crown may be a facilitator in making contact with Legal Aid, but that is not the Crown’s statutory responsibility. [ 47 ] Here, the circumstances by themselves do not suggest any unacceptable delay arising from the exceptional circumstance that WG and the previously appointed

section 486 counsel would fall out a few days before the commencement of the trial. The initial appointment of new counsel was handled entirely by Legal Aid, without Crown or Court involvement.

The fact that this new counsel had a conflict with WG two days later and the last business day before trial commencement was again outside the control or knowledge of the Crown or the Court. [ 48 ] WG appears to be of the view that Legal Aid should have been able to find un-conflicted counsel in less than a day, or three days maximum, presupposes the general availability of experienced criminal defence lawyers to take on a difficult assignment in such a short period of time.

Any suggestion that this is the case, or should be the case, requires evidence of some shortcoming on Legal Aid’s part. [ 49 ] WG led no such evidence. On the evidence before me, I am left to conclude that Legal Aid did an admirable job in finding Mr. Okosun the same day Mr. Genest advised of his withdrawal. It would not be at all surprising that it might take a day or even two for Mr. Okosun to make the connection between WG and the complainant he had acted for.

Even so, it is very difficult if not impossible to fault Legal Aid for not finding someone else between Friday, February 10 and Monday, February 13. [ 50 ] Absent evidence of systemic failures within Legal Aid in these circumstances, I do not see that the adjournments resulting from their attempts to find

section 486 counsel were unreasonable and should not be deducted from the overall time frame for the presumptive ceiling. [ 51 ] R v Berard , 2020 ABQB 345 is perhaps more helpful than Koruz in this case. In finding that delays occasioned by Legal Aid difficulties in arranging counsel for the accused were to be deducted from the overall delay period, Neufeld J stated at para 41: [41] I also reject the argument of the Accused that the Crown and the Court should have intervened directly with Legal Aid to ensure that a replacement lawyer was promptly appointed.

It is not the role of the Crown, and certainly not the role of the Court, to intercede with Legal Aid to advocate on behalf of an Accused. [ 52 ] In that case, there was specific evidence as to the steps Legal Aid had taken to find counsel, which the accused argued were inadequate. [ 53 ] I note that difficulties between an accused and Legal Aid were treated as an “unfortunate episode beyond the Crown’s control (at para 74) and constituted a “discrete exceptional circumstance”) at para 75) in R v Pastuch , 2017 SKQB 211 .

Conclusion on 486 Counsel Delay [ 54 ] I find that WG has not established that there were any unreasonable delays occasioned by the difficulties in finding

section 286 counsel. The resulting adjournment of the trial from February 13, 2023 to June 26, 2023 was a discrete event caused by exceptional circumstances, and thus any such time is to be deducted from the overall time in determining delay. There is no basis for me to attribute any such delay to the Crown or the Court in any event, on the evidence before me. There was no evidence that the Crown failed to mitigate against any delays occasioned by COVID-19.

Result [ 55 ] After deducting the period from January 17, 2022 to February 13, 2023 as being caused by the exceptional circumstances of COVID-19, and the period from February 13, 2023 to June 26, 2023 as being caused by the exceptional circumstances surrounding the appointment of

section 486 counsel, the overall “delay” in this matter was 871 days, which is under Jordan’s presumptive ceiling. WG’s Charter application is dismissed. The trial will need to be re-scheduled to continue at the next arraignments in Wetaskiwin. Heard by way of written submissions. Dated at the City of Wetaskiwin, Alberta this 2 nd day of November, 2023.

Robert A. Graesser J.C.K.B.A. Appearances: Jeff Rudiak, K.C. for the Crown WG (Self-Represented) for the Accused