Citation:      R v. D.C.R.                                                                  Date:           20171030

2017 BCPC 326                                                                             File No:                  44260-1

                                                                                                         Registry:        Prince George

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

REGINA

 

 

v.

 

 

D.C.R.

 

 

 

 

 

RULING ON APPLICATION

OF THE

HONOURABLE JUDGE J. T. DOULIS

 

 

 

PUBLICATION BAN (pursuant to s. 486.4(2) - Complainant or Witness for listed sexual offences and 486.4(3) - Complainant or witness under 18

 

 

 

 

 

 

Counsel for the Crown:                                                                                                      R. Smith

Counsel for the Defendant:                                                                                       J. Pakenham

Place of Hearing:                                                                                          Prince George, B.C.

Date of Hearing:                                                                                            September 27, 2017

Date of Judgment:                                                                                             October 30, 2017

Introduction

11. Any person charged with an offence has the right

. . . 

(b) to be tried within a reasonable time;

 

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

Issues:

a.            Does the 18 month presumptive ceiling for proceedings in the Provincial Court established in R v. Jordan, 2016 SCC 27 (CanLII) apply to the sentencing phase?

b.            If the 18 month presumptive ceiling does not apply between the conviction and sentencing, then how is delay in that period to be assessed?

c.            Have D.C.R.’s s. 11(b) Charter rights been infringed?

 

Evidence and Submissions

 

a.            The Defence’s Notice of Application and Constitutional Question filed August 1, 2017;

b.            The Affidavit of Daniela Benito, sworn September 6, 2017, attaching as exhibits:

Exhibit “A”: Information 44260 sworn February 3, 2016;

Exhibit “B”: Transcript of the February 17, 2016 court proceedings (adjournment of defence’s application to vary a recognizance of bail);

Exhibit “C”: Transcript of the February 29, 2016 court proceedings (Defence’s application to vary his recognizance of bail);

Exhibit “D”: Transcript of the April 25, 2016 court proceedings (Defence’s application to vary his bail condition);

Exhibit “E”: Transcript of June 6, 2016 court proceedings (Crown adjournment of the defence’s application to vary his bail conditions);

Exhibit “F”: Transcript of the June 7, 2016 court proceedings (Defence’s application to vary his bail conditions); Exhibit “G”: Transcript of the September 22, 2016 court proceedings (Crown’s application to adjournment of trial);

Exhibit “H”: An email from Lindsay McGuire of J. C. Word Assist setting out 13 court appearances with respect to this matter between March 9, 2016 to and including June 13, 2017, which took place before the Judicial Case Manager or before a Judicial Justice in Courtroom 103 and were not recorded. Accordingly those court proceedings were not able to be transcribed;

Exhibit “I”: A scheduling notice dated June 20, 2017, indicating a 2.5 hour sentencing hearing was scheduled on June 6, 2017, in Courtroom 102; and

Exhibit “J”: An email thread between the JCM and the Crown and Defence Counsel with respect to rescheduling the sentencing hearing because Judge Doulis was not available.

c.            Crown Book of Documents containing 98 documents, all but four of which are emails among the Crown, Defence Counsel and the Judicial Case Managers. The four exceptions consist of: (i) the Record of Proceedings; (ii) the Crown’s Application to Adjourn the first trial date; and (iii) two Scheduling Notices.  The Crown’s Book of Documents was marked Exhibit 1; and

d.            The Crown’s Time Line for the s. 11(b) application.

 

a.         Crown Authorities:

R. v. Akuma, 2017 BCSC 896

R. v. Baldini, 2012 BCCA 206

R. v. Cody, 2017 SCC 31

R. v. Dadmand, 2017 BCSC 1644

R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631

R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594

R. v. Kutynec, 1992 CanLII 7751 (ON CA)

R. v. Pelletier, 2016 BCSC 2496

R. v. Sanghera, 2014 BCCA 249

R. v. Sanghera, [2015] SCR 691

 

            b.         Defence Authorities

 

R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 SCR 631

R. v. Williamson, 2016 SCC 28

R. v. Cody, 2017 SCC 31

 

Chronology of Proceedings

Date	Event	Days
26 Jan 2016	D.C.R. is alleged to have committed the s. 271 CC offence of sexual assaulting K.l.G., in Prince George, B.C. on January 26, 2016.	Pre-Charge
02 Feb 2016	D.C.R. is alleged to have committed the s. 129(a) CC offence of wilfully resisting or obstructing a peace officer in the execution of his duties on February 2, 2016.	Pre-Charge
02 Feb 2016	D.C.R. is arrested and released on an Undertaking to a Peace Officer on February 2, 2016.	Pre-Charge
03 Feb 2016	Information 44260-1 is sworn on February 3, 2016, charging D.C.R. with one count of sexual assault contrary to s. 271 of the Criminal Code and one count of wilfully resisting or obstructing a peace officer, Constable Baird, in the execution of his duties contrary to s. 129(a) of the Criminal Code: Exhibit “A”” to the affidavit of Daniela Benito.	Day 1
03 Feb 2016	On February 3, 2016, D.C.R. was released on a Recognizance to a Judge without deposit or surety before Judge Keyes with consent of the Crown.  The Recognizance contained a number of conditions including: Condition 6: You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be or who reasonably appears to be of the age of 16 years or less, except as follows: (a) with the advance written consent of the Bail Supervisor; and (b) in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the bail supervisor. Condition 7 You shall not attend at any public park, school ground, daycare centre, public swimming pool, playground, skating rink, or community centre or recreational centre where persons of the age of 16 years or less are present or can reasonably be expected to be present, except in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the Bail Supervisor. See: Exhibit 1, Document 95	Day 1
17 Feb 2016	D.C.R. filed an application to vary the recognizance of bail imposed by Judge Keyes.  The matter came before Judge Weatherly for hearing on February 17, 2016.  The Crown opposed the application and the matter was adjourned: Exhibit “B” to the affidavit of Daniela Benito.
29 Feb 2016	D.C.R.’s application to vary his bail came before Judge Gray on February 29, 2016.  D.C.R. sought to vary Condition 6 to permit him supervised access to his own children: Exhibit “C” to the affidavit of Daniela Benito.
23 Mar 2016	D.C.R. was arraigned in Prince George Provincial Court on March 23, 2016.  He entered pleas of not guilty to both counts on Information 44260-1.	48 days
1 Apr 2016	The first trial date is fixed before the Judicial Case Manager (“JCM”) on April 1, 2016.  At that time a one day trial was scheduled to proceed on October 3, 2016: Exhibit 1, Document 97.	57 days
25 Apr 2016	On April 25, 2016 D.C.R.’s application to vary the name on the recognizance of bail came on for hearing.  D.C.R. sought to correct his son’s name as it appeared on the recognizance from N.H. to N.R.: Exhibit “D” to the affidavit of Daniela Benito. Condition 6 of the Recognizance was amended to read: You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be or who reasonably appears to be of the age of 16 years or less, except as follows: (a) with the advance written consent of the bail supervisor; (b) in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the bail supervisor or; (c) you may have contact or communication directly or indirectly with your children A.F. and N.H. [sic] in the presence of J.H., D.M. or N.R. with knowledge of this condition, provided Doreen Hardy or delegate social worker from the Ministry of Child and Families is given prior written notice. See: Exhibit 1, Document 95
06 Jun 2016	On June 6, 2016, D.C.R. brought an application to vary the conditions of his recognizance of bail to permit him to have contact with his children.  The matter came on for hearing before Judge Gray and was adjourned to June 7, 2016: Exhibit “E” to the affidavit of Daniela Benito.
07 Jun 2016	D.C.R.’s application to vary his recognizance of bail came on for hearing before Regional Administrative Judge Brecknell on June 7, 2016.  RAJ Brecknell amended Condition 6 to allow D.C.R. to have contact or communication with his own children: Exhibit “F” to the affidavit of Danielo Benito. Condition 6 of the Recognizance was amended to read: You shall have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be or who reasonably appears to be of the age of 16 years or less, except as follows: (a) with the advance written consent of the bail supervisor; (b) in the presence of an adult third party, with knowledge of this condition approved in writing in advance by the bail supervisor or; (c) you may have contact or communication directly or indirectly with your children A.F. and N.R. All other provisions remained the same. See: Exhibit 1, Document 95
08 Jul 2016	On July 8, 2016, the Supreme Court of Canada released its decisions in the companion cases of R. v. Jordan, 2016 SCC 27 and R. v. Williamson, 2016 SCC 28 (CanLII).
15 Sep 2016	On September 15, 2016, the Crown filed its application to adjourn the October 3, 2016 trial date on the basis: 1.   The complainant had relocated and had not been served with notice of the trial date; 2.   The Crown had not yet interviewed the complainant as to her need for testimonial accommodation; 3.   Crown counsel was overbooked for the trial date and the courtroom had another trial set to run, as well as a disposition; 4.   The accused was out of custody; 5.   October 3, 2016, was the first trial date for the offence; and 6.   The adjournment would be a Crown delay. Exhibit 1, Document 96.
22 Sep 2016	On September 2016, Judge Gray heard the Crown’s application to adjourn the October 3, 2016 trial date.  The Crown argued it could not locate the Complainant, who was a key Crown witness.  The Defence opposed the Crown’s adjournment application.  At the hearing, the Crown conceded that any delay arising from the adjournment would rest with the Crown.  The Court granted the Crown adjournment application: Exhibit “G” to the affidavit of Danielo Benito.	231 days
26 Sep 2016	On September 26, 2016, counsel fixed the second trial date for December 23, 2016 only: Exhibit 1, Document 98.	235 days
03 Oct 2016	The original trial date, October 3, 2016, was adjourned on September 22, 2016 to December 23, 2016.	242 days
22 Dec 2016 at 10:13 p.m.	Defence Counsel emailed the Crown on the evening of December 22, 2016, asking for disclosure of officer’s warrant to arrest D.C.R. in his dwelling house: Exhibit 1, Document 7.
23 Dec 2016 at 7:32 a.m.	In the morning of December 23, 2016, the Crown Counsel advised Defence Counsel there was no warrant for the officer to arrest D.C.R. in his dwelling house.  Exhibit 1, Document 8.
23 Dec 2016	The trial commenced before Judge Doulis in Prince George Provincial Court on December 23, 2016.  The Crown completed the Complainant’s evidence and Constable Baird’s evidence-in-chief.	323 days
23 Dec 2016	On December 23, 2016, the first day of trial, D.C.R. filed an application for a judicial stay of proceedings pursuant to ss. 7, 8, 9 and 24(1) of the Charter.
23 Dec 2016	At the end of the first day of trial, the matter was adjourned to the JCM on December 28, 2016, to fix a one day continuation of the trial: Exhibit 1, Documents 9 & 10.
28 Dec 2016	On December 28, 2016, Defence counsel advised the Crown and JCM that he believed it appropriate to fix two further days of trial: Exhibit 1, Document 11.
28 Dec 2016	On December 28, 2016, the JCM offered January 27, 2017, to the Crown and the Defence as the first available date for a continuation: Exhibit 1, Document 13.
28 Dec 2016	On December 28, 2016, the Crown and Defence asked the JCM to schedule a pre-trial conference to clarify the nature of and time required for the Defence’s Charter application: Exhibit 1, Documents 12, 16 - 22.
30 Dec 2016	On December 30, 2016, the JCM scheduled a pre-trial conference on January 6, 2017, and the continuation of the trial on January 27, 2017: Exhibit 1, Documents 22-29.
04 Jan 2017	On January 4, 2017, the Defence Counsel inquired with Crown Counsel whether there was additional disclosure from its police witness because of the discrepancy between what the officer said at trial and what was disclosed in the Report to Crown and the officer’s notes: Exhibit 1, Document 30.
04 Jan 2017	On January 4, 2017, Crown Counsel advised Defence Counsel the Crown had no documentation other than that indicated in its Memorandum of Disclosure: Exhibit 1, Document 31.
06 Jan 2017	On January 6, 2017, counsel appeared before Judge Doulis for a pretrial conference.  At that time, the Court directed the parties schedule a further day of trial in addition to the January 27, 2017 date already scheduled: Exhibit 1, Document 32-33.
06 Jan 2017	On January 6, 2017, the JCM scheduled a second trial continuation date for February 2, 2017: Exhibit 1, Documents 34 to 36.
27Jan 2017	The second day of trial commenced on January 27, 2017, at which time the Crown and Defence completed their respective cases.	358 days
02 Feb 2016	On February 2, 2017, the third day of trial continued with counsel making submissions on both the merits of the case and the Defence’s Charter application.	364 days
03 Mar 2017	The fourth and final day of trial continued on March 3, 2017, with Judge Doulis’ decision and reasons for judgment: R v. D.C.R., 2017 BCPC 80 (CanLII).  On this date the Court: a.   convicted D.C.R. of sexual assault (s. 271 CC); b.   acquitted D.C.R. of obstruction (s. 129(a) CC); c.   upheld D.C.R.’s s. 7, 8 and 9 Charter application with respect to the s. 129(a) CC; and d.   refused D.C.R.’s application for a judicial stay of the s. 271 CC offence as a result of the police breach of D.C.R.’s s. 7, 8 and 9 Charter rights.	393 days
03 Mar 2017	On March 3, 2017, Judge Doulis ordered a presentence report from B.C. Community Corrections.	393 days
03 Mar 2017	On March 3, 2017, Judge Doulis adjourned the matter to the office of the JCM on April 2, 2017, to fix a date for sentencing.
07 Apr 2017	On April 7, 2017, Probation Officer Ross filed her April 4, 2017 presentence report with the Court.  In her report, PO Ross recommends the Forensic Psychiatric Services provide a psychological or psychiatric assessment for D.C.R.’s risk of sexual reoffending: Exhibit 1, Document 82.
10 Apr 2017	On April 10, 2017, Crown Counsel asked the JCM to schedule an appearance before Judge Doulis to discuss whether the Court wished to order a psychological or psychiatric assessment as PO Ross suggested: Exhibit 1, Document 40.
11 Apr 2017	On April 11, 2017, the JCM scheduled an appearance before Judge Doulis by video at 1:45 on April 13, 2017, to discuss PO Ross’ recommendation the Forensic Psychiatric Services provide a psychological or psychiatric assessment report: Exhibit 1, Documents 41 to 50.
11 April 2017	On April 11, 2017, the JCM cancelled the April 12, 2017 fix date with consent of the Crown and Defence Counsel: Exhibit 1, Documents 51- 53.
13 Apr 2017	On April 13, 2017, counsel appeared before Judge Doulis to discuss PO Ross’ request for a report from Forensic Psychiatric Services.  Crown Counsel indicated he did not require a report for the purposes of determining the Crown’s position on sentencing.  As the defence was seeking a conditional sentence, Judge Doulis ordered the Forensic Psychiatric Services Commission provide a psychiatric assessment and risk assessment report: Exhibit 1, Document 95.
18 April 2017	On April 18, 2017, D.C.R.’s sentencing hearing was adjourned to June 7, 2017: Exhibit 1, Documents 54 - 57.
02 Jun 2017	On June 2, 2017, Dr. David Wiebe filed with the court his May 31, 2017 psychological report and risk assessment: Exhibit 1, Document 82.
05 Jun 2017 10:40 a.m.	On June 5, 2017, Defence Counsel notified the Crown he objected to the presentence reports because they contained impermissible material.  Defence counsel stated: “In my view, new reports will have to be commissioned.” Exhibit 1, Document 58.
05 Jun 2017 1:52 p.m.	On June 5, 2017, Crown Counsel asked Defence Counsel to provide particulars of his objection to the presentence reports and any authorities upon which he intended to rely: Exhibit 1, Document 59.
07 Jun 2017	The sentencing hearing scheduled for June 7, 2017, did not proceed.  Instead, the Defence argued its application to strike the presentence and psychiatric assessment reports on the basis of their impugned content.  The Defence asked the Court to order new reports.  The Crown opposed the Defence’s application on the basis the impugned content could be redacted from the reports.  The entire time set aside for the sentencing hearing was used to argue the Defence’s application to commission new presentence reports.  Judge Doulis reserved her decision.	489 days
08 Jun 2017	On June 8, 2017, the Crown asked the JCM to schedule Judge Doulis’ decision on the Defence’s June 7, 2017 application on June 12, 2017.  Defence Counsel indicated his availability on that day: Exhibit 1, Documents 60 - 61.
09 Jun 2017	Judge Doulis’ decision on the Defence’s June 7, 2017 application was initially scheduled for 2:00 p.m. on June 13, 2017, then subsequently rescheduled by the Court for June 16, 2017: Exhibit 1, Documents 63 - 71.
13 Jun 2017	On June 13, 2017, the JCM scheduled Judge Doulis’ decision on the Defence’s June 7, 2017 application for June 16, 2017, at 1:30 p.m.: Exhibit 1, Document 71. Judge Doulis was to appear remotely by video from Smithers Provincial Court.
16 Jun 2017	Judge Doulis delivers her decision in R. v. D.C.R., 2017 BCPC 202 (CanLII) on June 16, 2017.  The Court dismissed the Defence’s application to strike and reorder the preparation of new presentence and psychiatric assessment reports.  Instead, Judge Doulis ordered the existing reports be redacted to excise the offending material.
16 Jun 2017	On June 16, 2017, Judge Doulis adjourned the matter to the office of the JCM on June 19, 2017, to fix a date for a half day sentencing hearing.
20 Jun 2017	On June 20, 2017, the JCM scheduled a 2.5 hour sentencing hearing on July 6, 2017.  Judge Doulis was to appear at the sentencing hearing remotely by video: Exhibit “I” to Danielo Benito’s affidavit; Exhibit 1, Documents 72 - 81.
29 Jun 2017 9:09 a.m.	On June 29, 2017, Defence Counsel forwarded to the Crown his redacted presentence and psychological assessment reports: Exhibit 1, Document 82.
05 Jul 2017	On July 5, 2017, the Crown Counsel advised the Defence Counsel he agreed with the proposed redactions of the presentence and the psychological assessment reports: Exhibit 1, Document 83.
06 Jul 2017	The sentencing hearing was scheduled for a half day on July 6, 2017, with Judge Doulis appearing remotely by video from Hazelton Provincial Court.  Judge Doulis cancelled the sentencing hearing due to lack of court time in Hazelton: Exhibit “J” to Danielo Benito’s affidavit.	518 days
06 Jul 2017	On July 6, 2017, Judge Doulis ordered the matter adjourned to the office of the JCM on July 21, 2017, to fix a new sentencing date: Exhibit 1, Document 87-88.
06 Jul 2017	On July 6, 2017, Crown Counsel indicated to the JCM he was not available to attend a sentencing hearing from July 24 to and including September 8, 2017; Exhibit 1, Document 89 & 90.
10 Jul 2017	On July 10, 2017, the JCM rescheduled the sentencing hearing for September 27, 2017, at 9:30 a.m., with Judge Doulis appearing remotely by video from Burns Lake Provincial Court: Exhibit 1, Documents 89 to 94.
01 Aug 2017	On August 1, 2017, the Defence Counsel filed and served D.C.R.’s Notice of Application and Constitutional Question pursuant to s. 8(2)(b) of the Constitutional Questions Act seeking a judicial stay of proceedings in respect of all charges in this matter on the grounds his right to be tried within a reasonable time as protected by s. 11(b) of the Charter had been infringed: Exhibit 1, Document 94.
27 Sep 2017	The sentencing hearing came before Judge Doulis on September 27, 2017. The sentencing did not proceed. Instead counsel argued the Defence’s application for a judicial stay of proceedings under s. 11(b) and 24(1) of the Charter. Judge Doulis reserved her decision.
27 Sep 2017	On September 27, 2017, Judge Doulis referred the matter to the office of the JCM to schedule a date for her decision on the Defence’s 11(b) Charter application followed by a half-day sentencing hearing, should it be necessary.	601 days
30 Oct 2017	Judge Doulis’ decision on the Defence’s s. 11(b) Charter Application is scheduled for October 30, 2017.	634 days

 

The Legal Framework

The Jordan Analysis

            Step One: calculate elapsed time

            Step Two: calculate and deduct defence delay

Delay caused by Defence Waiver

 

[61]      . . . Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal.  The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights.  However, as in the past, “[i]n considering the issue of ‘waiver’ in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness” . . . [Citations omitted]

            Also see: Cody, para. 27; Akuma, at para. 8.

            Delay caused by Defence Conduct

a.            Delay caused by deliberate and calculated defence tactics aimed at causing delay, including frivolous applications and requests: Jordan, para. 63; Cody, para. 30;

b.            Delays in scheduling where the defence is not ready to proceed or available, where the Crown and Court are available: Jordan, para. 64.  If either the Crown or Court is also unavailable, the delay will not be attributable to the defence: Jordan, para. 64; Williamson, para. 22; Cody para. 30; and

c.            Delay caused by other inappropriate defence actions or conduct as found by the trial judge.  Defence delay does not include defence actions legitimately taken to respond to the charges, for example, preparation time, applications and requests that are not frivolous: Jordan, para. 65.

Step Three:  determine net delay

Step Four: rebutting presumed unreasonableness

Exceptional Circumstances

[69]      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.  So long as they meet this definition, they will be considered exceptional.  They need not meet a further hurdle of being rare or entirely uncommon.

. . .

 

[71]       It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating an 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.

           

Discrete Events

a.   medical or family emergencies; Jordan, para. 72;

b.   cases with international dimensions: Jordan, para. 72; and

c.   unforeseeable or unavoidable developments that arise during the trial: Jordan, para. 73.

 

[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.

 

Complex Cases

[77]      . . . As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time.  Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute.  Proceeding jointly against multiple co-accuseds, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

 

Transitional exceptional circumstances

96.        . . . For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework.  For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable.

 

[102]   Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. 

 

Step Five: deduct delay from exceptional circumstances

            Step Six: Defence’s burden to show unreasonableness

[84]      To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings.  “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider” (Morin, at p. 802).  Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible.  Substance matters not form.

[85]      To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date.  Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly.  While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously.  At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence.  The defence is required to act reasonably, not perfectly.

 

[87]      . . . The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.

. . .

[90]      Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded.  As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.

 

            Step Seven: stay of proceedings

Application of the Jordan framework

 

Issue # 1: Does the 18 month presumptive ceiling for proceedings in the Provincial Court established in R v. Jordan, 2016 SCC 27 (CanLII) apply to the sentencing phase?

 

This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45).  Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered.  The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

 

. . . when the verdict is announced, the stress and stigma of an unresolved criminal charge will have been resolved with either an acquittal or a conviction and the accused can no longer be prejudiced in mounting a defence.

[56]      In the absence of specific guidance concerning the assessment of delay in the sentencing process, the guiding principle I take from Jordan and Cody is that criminal trials, including the sentencing phase, should proceed as expeditiously and efficiently as the circumstances of the particular case permit.  Preparation and hearing time will vary with the nature of the sentencing proceedings and their complexity.

[57      In considering the time elapsed between verdict the anticipated end of sentencing, I also bear in mind that sentencing is an individualized process, tailored to the particular circumstances of the offender and the gravity of the offence.

 

            Defence Waiver

Defence Delay

 

a.            the defence’s late breaking Charter application;

b.            the defence’s application to have the presentence reports struck and recommissioned.

 

[140]   I find Constable Baird’s conduct infringed D.C.R.’s s. 7, 8 and 9 Charter rights as a follows:

a.   by entering D.C.R.’s residence to effect his arrest without legal authority and without consent, the officer infringed D.C.R.’s right under s. 8 to a reasonable expectation of privacy;

b.  by handcuffing and forcibly removing D.C.R. from his home without legal authority, the officer infringed D.C.R.’s right under s. 9 not to be arbitrarily detained;

c.  the infringement of D.C.R.’s ss. 8 and 9 rights are automatically a violation of his right under s. 7 to liberty and security of person.  I do not find an independent breach of D.C.R.’s s. 7 rights arising from Constable Baird’s testimony at trial.

 

a.            counsel can redact the clearly inappropriate passages;

b.            counsel can revise the incorrect passages;

c.            the court can ignore troubling, but less offensive comments;

d.            at the sentencing hearing, the Crown and Defence can bring to the Court’s attention further redactions or modifications they believe appropriate; and

e.            if the Crown and Defence cannot agree, the Defence can apply for an order requiring the authors of the reports attend the sentencing hearing for cross-examination.

 

Extraordinary Circumstances

 

Complex Case

 

Discrete Events

 

a.   the July 6, 2017 adjournment of the sentencing hearing for lack of court time; and

b.   the issues arising from the presentence reports.

 

[81]       To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling.  As discussed, an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case’s complexity. The seriousness or gravity of the offence cannot be relied on, although the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang-related activity.  Nor can chronic institutional delay be relied upon.  Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached.  Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

 

Transitional Delay

 

            Conclusion on Issue #1

Issue #2:      If the 18 month presumptive ceiling does not apply between the conviction and sentencing, then how is delay in that period to be assessed?

 

[4]        A court called upon to assess a claim for a stay of proceedings based on an allegation of unreasonable delay must undertake a delicate balancing of the interests that the section of the Charter was designed to protect, including societal interests, along with the reasons for the delay: see R. v. Morin, supra, at p. 13.  As well, the same case reminds us that, in the absence of either inferred or proved prejudice, the need for enforcement of the right becomes, to a great degree, notional: see p.23. Given the various interests in tension, I am persuaded that the fundamental change of status of the applicant from accused to offender justifies the fulcrum being moved in favour of the public interest: see R. v. Teskey, [2003] A.J. No. 648 (Q.B.) at para. 28.  The delay related to the need to find out what makes the applicant "tick" far outweighs his liberty and security interests.  I am sure that the public would tolerate a delay in a prompt sentence in favour of a fully-informed sentence.

 

a.   whether the delay was unreasonable, taking into account:

                                      I.        the length of the delay;

                                    II.        the reasons for the delay;

                                    III.        the effect of any waivers of delay; and

b.   the prejudice suffered by the accused.

 

Issue #3: Have D.C.R.’s s. 11(b) Charter rights been infringed?

 

a.            The length of delay in sentencing from conviction to the anticipated sentencing date (September 27, 2017) was almost seven months.

b.            The delay was a result of:

                                      i.        the court ordering a presentence report on March 3, 2017;

                                    ii.        the court ordering a psychiatric assessment report on April 13, 2017;

                                   iii.        the Defence using the first sentencing hearing date to argue the presentence and psychiatric assessment reports ought to be struck as a result of impermissible content (June 7, 2017);

                                   iv.        the Court adjourning the second sentencing hearing date (July 6, 2017) due to lack of court time; and

                                    v.        the Defence using the third sentencing hearing date (September 27, 2017) to argue the s. 11(b) Charter application for a judicial stay.

c.            The Defence implicitly waived the delay arising from the September 27, 2017 from the s. 11(b) Charter application.

d.            With respect to the prejudice, I note:

                                      i.        there is no indication the delay in sentencing has impeded D.C.R.’s ability to call evidence at the sentencing hearing;

                                    ii.        there is no indication the delay in sentencing has prevented D.C.R. from engaging in rehabilitative programs if he chose to do so;

                                   iii.        the prejudice to D.C.R. as a result of the delay likely included the ongoing stress and anxiety of arising from uncertainty of his sentence;

                                   iv.        the defence has not identified how the delay in sentencing has adversely impacted the fairness of the sentencing process;

                                    v.        although D.C.R. is not in custody, he is subject to bail conditions which restrict his mobility and associations.  The overall adverse effect of the delay was to prolong D.C.R.’s restrictive bail conditions, however these were relaxed slightly on June 7, 2016;

                                   vi.        the delay has not significantly prejudiced D.C.R.’s liberty interests.  Had the sentencing proceeded earlier, D.C.R. would likely have been subject to restrictions on his mobility and associations in any event;

                                 vii.        D.C.R. is not precluded from asking the court to recognize his compliance with strict bail conditions as a mitigating factor on sentencing: R. v. Plowman, 2015 BCCA 423 (CanLII); R. v. Downes, 2006 CanLII 3957 (ONCA); and

                                 viii.        the prejudice to D.C.R. as a result in the delay in sentencing is outweighed by society’s interests in ensuring that the court has full and accurate information in order to determine an appropriate sentence for this first time offender.

Conclusion

 

 

_____________________

J. T. Doulis

Provincial Court Judge