R. v. Stone, 2019 NLSC 164

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Stone , 2019 NLSC 164 Date : September 16, 2019 Docket : 201701G1879 Her Majesty The Queen v. Brian Stone and Kevin Barnes Before: Justice David F. Hurley Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: July 25, 2019

Summary: Both Accused made an Application to have charges stayed alleging a breach of their right to be tried within a reasonable time under

section 11(

b) of the Charter . The Application is granted.

Appearances: Christopher E. McCarthy Appearing on behalf of the Crown Michael N.R. King Appearing on behalf of Brian Stone Brian D. Wentzell Appearing on behalf of Kevin Barnes Authorities Cited: CASES CONSIDERED: R. v. Jordan , 2016 SCC 27 STATUTES CONSIDERED: Charter of Rights and Freedom ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ; Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Hurley, J. : INTRODUCTION [ 1 ] Applicants Brian Stone and Kevin Barnes bring an Application for a stay of proceedings alleging a breach of their right to be tried within a reasonable time under

section 11(

b) Charter of Rights and Freedom ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . background [ 2 ] Messrs. Stone and Barnes, are each charged with one count of committing fraud over $5,000, contrary to section 380(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46 and one count of committing a breach of trust contrary to

section 122 of the Criminal Code . The charges are set out in a direct indictment to the Supreme Court, filed March 3, 2017. [ 3 ] The offences are alleged to have occurred between December 1, 2009, and September 30, 2012. [ 4 ] The Complainant is Fisheries and Oceans Canada.

The allegations relate to the Applicants’ employment as members of the Canadian Coast Guard. [ 5 ] The charges were originally contained in an Information sworn May 8, 2015, with their first appearance made in Provincial Court on June 3, 2015. [ 6 ] Prior to filing the direct indictment, a preliminary inquiry was scheduled to take place April 25 to 28, 2017. Subsequently, the scheduled preliminary inquiry did not take place. [ 7 ] The trial in this matter was originally scheduled to be heard before Judge and Jury in Supreme Court from June 4 to 29, 2018.

The trial date was later postponed to April 2019, and ultimately, September 30, 2019. (The April 2019 date was a scheduling error as that time was not available.) [ 8 ] The anticipated date of the end of the trial is October 25, 2019, and as of that date, the period of time since the Applicants were charged is said to be 53 months, 17 days. procedural history (

i) Provincial Court [ 9 ] For the most part, the evidence put forward at the hearing was comprised of transcripts of the various court appearances. I will now provide summaries on the essential aspects of these proceedings: • June 3, 2015 (Provincial Court) Ginger Holmes (Crown) Harry G. Mugford, Agent for Nicholas P.A. Westera (Brian Stone) Brian Wentzell (Kevin Barnes)

The Crown is proceeding by indictment. Mr. Wentzell confirmed that he has received disclosure in many thousands of pages. He wants more than the normal duration of postponement to review the disclosure due to the volume of material and the technical nature of the changes. He suggests a return date of July 31, 2015. Counsel and the court agree. • July 31, 2015 (Provincial Court) Ginger Holmes (Crown) Nick Westera (Brian Stone) Brian Wentzell (Kevin Barnes) Mr. Westera says that he has been away and has “just scratched the surface” in reviewing disclosure. He wants additional time to review it.

He suggests October 9 or September 28. Mr. Wentzell agrees and remarks that disclosure probably exceeds 10,000 pages. Crown has earlier dates available. The matter is set for October 9, 2015, for election and plea. • October 9, 2015 (Provincial Court) Sheldon Steeves (Crown) Nick Westera (Brian Stone) Brian Wentzell (Kevin Barnes) Mr. Westera stated that the disclosure is massive and that he has not completed the review. He had requested “some information” as well as a “best offer,” both of which have not been provided from the Crown prior to making an election and plea. He was unaware Ms.

Holmes had left the Justice Department. Mr. Westera suggests a postponement to December 2, 2015. The Judge indicated that at the next appearance an election should be entered. The matter is scheduled for December 2, 2015. • December 2, 2015 (Provincial Court) Christopher McCarthy (Crown) Nick Westera (Brian Stone) Brian Wentzell (Kevin Barnes) Mr. Westera advises the court that he has not finished reviewing the disclosure. Until recently he intended to retire and pass the file over to his replacement. Mr. Westera will now continue to represent Mr. Stone and requests a postponement to February.

Crown counsel agrees, as does Mr. Wentzell. The matter is set over to February 8, 2016. • February 8, 2016 (Provincial Court)

Christopher McCarthy (Crown) Nick Westera (Brian Stone) Brian Wentzell (Kevin Barnes) Mr. Westera indicated that there was “some eagerness to discuss the matter” and suggests that the matter be put over to another date. With consent of all counsel, the matter is postponed to March 21, 2016, for election and plea. • March 31, 2016 (Provincial Court) Christopher McCarthy (Crown) Nick Westera (Brian Stone) Heidi Wells, Q.C. on behalf of Brian Wentzell (Kevin Barnes) intervention by Law Society. At this time, Mr.

Barnes is being represented by Wells, Q.C. as interim counsel as the Law Society of Newfoundland and Labrador maintains custody of Mr. Wentzell’s practice. Wells, Q.C. will not have carriage of the file, and Mr. Barnes has agreed to wait for Mr. Wentzell’s return to practice. Mr. Westera confirms that disclosure has been provided, and that there were some communications with the Crown. He indicates, he had an appointment to meet with Mr. Wentzell two days prior to the intervention of the Law Society; the meeting did not take place. Mr. Westera requests postponement for a status meeting.

The court sets the matter over to June 9, 2016, for election. • June 9, 2016 (Provincial Court) Christopher McCarthy (Crown) Nick Westera (Brian Stone) Nick Westera as Agent for Brian Wentzell (Kevin Barnes) Mr. Westera indicates that Mr. Wentzell is not present and he is appearing as Mr. Wentzell’s agent. Mr. McCarthy submits it is counsels’ intention to meet; and; all counsel are in agreement for a postponement. The judge reminds counsel that the matter was set over for election and plea, and that the matter has been on the go for some time. The judge instructed counsel to take some action on the next date.

Counsel agree to postpone the matter to August 18, 2016. [1] • August 18, 2016 (Provincial Court) Christopher McCarthy (Crown) Mr. Morris, Agent for Nick Westera (Brian Stone) Mr. Morris, Agent for Brian Wentzell (Kevin Barnes)

Mr. Wentzell does not appear. He is represented by an agent, Mr. Morris, who also is the agent for Nick Westera. Mr. McCarthy advises the court that counsel have “achieved success” as Mr. Morris has spoken with Mr. Wentzell who has provided instruction. However, his instructions are to request another postponement. As well, Mr. Morris confirms that Mr. Wentzell “is around.” He requested a postponement to October 6, 2016. The judge reminds the parties that the matter has been in Provincial Court since its first appearance on June 3, 2015. Mr. Morris stated that Mr.

Wentzell indicated he was prepared to “make a waiver” to be dealt with on the next date. Next date set for October 6, 2016. • October 6, 2016 (Provincial Court) Christopher McCarthy (Crown) Jonathan McDonald, Agent for Nick Westera (Brian Stone) Brian Wentzell (Kevin Barnes) Mr. McDonald, as agent for Nick Westera (Brian Stone) requests “one more” postponement, as he is “hopeful that on [his] end the matter can be resolved.” Mr. Wentzell expresses his client’s desire to advance the matters of both Accused together and is therefore in agreement.

The matter is scheduled for November 18, 2016. • November 18, 2016 (Provincial Court) Christopher McCarthy (Crown) Nick Westera (Brian Stone) Brian Wentzell (Kevin Barnes) Mr. Westera has had discussions with the Crown toward a speedy disposition. According to the transcript of the proceedings, Mr. Westera, on behalf of Mr. Stone, enters a guilty plea to a charge of s. 334(a) (theft over $5,000) replacing the charge of fraud over $5,000 and a conditional withdrawal of the charge under s. 122 (breach of trust). The plea was subsequent to the election to Provincial Court. Mr. Wentzell confirms that Mr.

Barnes is electing Supreme Court, Judge alone and is requesting a Preliminary Inquiry. The Barnes matter is concluded in Provincial Court. The Stone matter is set over to December 7, 2016. • December 7, 2016 (Provincial Court) Christopher McCarthy (Crown) Ellen O’Gorman (Brian Stone) via court call Ms. O’Gorman has replaced Mr. Westera as counsel for Mr. Stone. She appears by telephone. Mr. McCarthy advises the Court that Ms. O’Gorman now wishes to review “the thousands of pages of electronic disclosure.” Mr. McCarthy suggests the matters (both) be set over to December 16, 2016, for status and update.

Adjourned to December 16, 2016. • December 16, 2016 (Provincial Court) Unidentified Agent on behalf of Christopher McCarthy (Crown) Ellen O’Gorman (Brian Stone) via court call No Appearance (Kevin Barnes) Ms. O’Gorman advises Mr. Wentzell is attending Family Division, Supreme Court, and that he was asking the matter be set over. To date, they have not discussed the matters. Ms. O’Gorman has communicated to the Crown that Mr. Stone continues to pursue a speedy disposition. However, she requires more time for “getting and reviewing disclosure.” She has not received from Mr. Westera’s office complete disclosure. Ms.

O’Gorman relays that Mr. Wentzell had requested a “quick turnaround” and a January date. Mr. McCarthy advises the court Mr. Wentzell was “supposed to advise what he wanted to do by way of a preliminary hearing today… but it appears that he is not available to give us that information.” January 27, 2017, is set for Mr. Stone to set a date for disposition on the “guilty” plea entered, and for Mr. Barnes to set a date for the preliminary inquiry. • January 27, 2017 (Provincial Court) Christopher McCarthy (Crown) Michael King, Agent for Ellen O’Gorman (Brian Stone) No Appearance (Kevin Barnes) Mr.

McCarthy advises Mr. Wentzell is in attendance at Supreme Court and asks if the court can “stand that matter down.” Mr. McCarthy noted that in review of the procedure followed on November 18, 2016, the matter is “in kind of jurisdictional no man’s land” (inconsistent elections). Mr. King advises the disclosure requested from Mr. Westera’s office remains outstanding. They received a CD but are not in receipt of the thumb drive originally provided by Crown to Mr. Stone’s Defence. The judge asks that the Crown provide another thumb drive. Mr.

McCarthy advises the court there is some difficulty associated: “I’m gong to have to send it back to the RCMP to be vetted… [and] recreated… but I can make that effort.” The judge suggests the matter proceed. The Stone matter is adjourned to March 1, 2017. • March 1, 2017 (Provincial Court) Christopher McCarthy (Crown) Michael King, Agent for Ellen O’Gorman (Brian Stone) Mr. McCarthy noted that Mr. Stone entered a “guilty” plea to a similar offense to Count 1. Shortly thereafter Mr. Barnes elected Supreme Court, Judge Alone.

The Crown, Mr. McCarthy maintained that by operation of

section 536, the Court lost jurisdiction over Mr. Stone when Mr. Wentzell elected up. Mr. McCarthy also noted that while disclosure was previously acceptable, present counsel has requested material that was previously provided to Mr. Westera. Mr. Westera provided a CD, but did not provide a thumb drive. The Crown said it has taken reasonable efforts to get it.

As well, for some reason the thumb drive will have to be “recreated by the RCMP.” Counsel present agree to set the matter over for a preliminary inquiry on April 25, 2017. [2] Preliminary Inquiry is scheduled for April 25 to 28, 2017. (ii) Supreme Court • April 3, 2017 (Supreme Court) Christopher McCarthy (Crown) Ellen O’Gorman (Brian Stone) Brian Wentzell (Kevin Barnes) This is the first appearance of this matter in Supreme Court. Mr. Wentzell indicates his client is not in a position to enter a plea and set dates. He wants to consider the issue of the direct indictment and loss of the preliminary inquiry. Ms.

O’Gorman tells the court that she has not completed her review of the disclosure. She requests a further four weeks prior to her client making a plea. Crown counsel advises the Court that Mr. Stone’s former counsel did not transfer all disclosure to Ms. O’Gorman. The RCMP provided a replacement flash drive on February 2, 2017. Matter is postponed to May 1, 2017. • May 1, 2017 (Supreme Court) Christopher McCarthy (Crown) Ellen O’Gorman (Brian Stone) Brian Wentzell (Kevin Barnes) Counsel and the Court discuss trial dates. An issue arose with respect to disclosure. The Crown indicates that Ms.

O’Gorman is requesting certain hard drives apparently related to the initial investigation by the Canadian Coast Guard. Mr. McCarthy confirms these hard drives are not in possession of the Crown or the Police. He is of the view that these hard drives should be with the Department of Fisheries and Ocean, and indicates that a third party application would have to be made by Ms. O’Gorman. The Court sets the date of September 11, 2017, to hear pre-trial applications. Mr. Stone at the conclusion of the proceeding enters pleas of not guilty to the two charges. Ms.

O’Gorman advises that she will be making an application for third party records within a week.

• May 1, 2018 (Supreme Court) Christopher McCarthy (Crown) Ellen O’Gorman (Brian Stone) Brian Wentzell (Kevin Barnes) At this time, the Court delivered an oral decision of the Application seeking disclosure from the Crown of material in the possession of the Canadian Coast Guard. The Judge makes reference to the parties (including the prosecution) attempting to provide a Consent Order, but the Canadian Coast Guard refused to agree to produce any documents by consent. The disclosure of this material was originally requested May 1, 2017. The Court confirmed that Mr.

Stone gave evidence of documents and records that he identified as related to the charges in the indictment, and the material would be relevant in determining whether the impugned transactions were carried out with or without the authority of their superior(s). The presiding Judge made other findings, which I will refer to later in the decision. issue [ 10 ] Were the rights of the Accused persons “to be tried within a reasonable time” as protected by

section 11(

b) of the Charter violated or breached? [ 11 ] This issue must be determined in accordance with the Supreme Court of Canada decision, R. v. Jordan , 2016 SCC 27 . For the purposes of these proceedings that decision created a new framework as, set out, in part, as follows in paragraph 105: 105 The new framework for s. 11 (

b) can be summarized as follows: • There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling. • Once the presumptive ceiling is exceeded , the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances.

Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable. delay Defence (Kevin Barnes) [ 12 ] From March 31, 2016, to October 6, 2016, the matter was basically placed on hold as Mr. Wentzell did not attend court as he worked through ongoing issues with the Law Society. On October 6, Mr.

Wentzell attended, but Mr. Westera did not. The delay for March 31, 2016, to October 6, 2016, is attributed to Mr. Barnes totaling six months, six days. Defence (Brian Stone) [ 13 ] As indicated, Ms. O’Gorman commenced representing Mr. Stone on December 7, 2016. She later advised the Court that she could not complete her review of disclosure until early May 2017. The change of counsel caused a delay of six months; three months attributed to Mr. Stone. (The material filed indicated that Ms.

O’Gorman was involved with an ongoing trial in early 2017.) consideration [ 14 ] Both Accused take the position that there are various factors at play to rebut a finding of the reasons for delay. While most, if not all the requests for postponements were from the Accused, the Crown agreed and did not object to the various requests. As well, these delays and the periods of time involved were not waived by the Defence in calculating the presumptive ceiling. ( Jordan at para. 61 ).

At least on three occasions, the Provincial Court judge urged counsel to move the matter along. [ 15 ] In the Application for the Canadian Coast Guard records, the judge in rendering his decision determined that the records requested were necessary for the Accused to make a full answer and Defence. The request first surfaced in early December 2016 with the retaining of Ms. O’Gorman and concluded with the decision on the Application on May 1, 2018, a delay of approximately 18

months. Although, counsel for the Accused were faulted for taking an improper procedure, their Application was successful in giving the Defence access to material the Judge found to be of significance in their upcoming trial. The Judge indicated that this material should have been reviewed by the Crown in assessing the merits of the case against the Accused. [ 16 ] Relevant to this issue was the confirmation that the police had in its possession a Production Order from the Provincial Court executed on January 31, 2014.

In his decision, the Judge indicated that this Production Order as well as the common law gave the Police the right to investigate the findings of the Canadian Coast Guard.

The details and conclusions would then become part of the disclosure material which should have been provided by the Crown with the bulk of the documentation produced prior to the first appearance of the Accused on January 3, 2015. disposition [ 17 ] A review of this matter confirms that 53 months, 17 days (as adjusted for Defence delays) between the bringing of the charges and the anticipated end of trial is excessive. (The delay attributed to Mr. Barnes is six months, six days and three months to Mr.

Stone.) The appropriate remedy available to address this delay is a Jordan stay of proceedings. [ 18 ] Therefore, this Application is allowed. _____________________________ David F. Hurley Justice