IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Sikoras have been found guilty of possession of cannabis in an amount not exceeding three kilograms for the purpose of trafficking.  Mr. Sikora has been found guilty of three charges of trafficking and Ms. Sikora has been found guilty of two charges of trafficking.

[2]           This is an application by the Sikoras for judicial stays of proceedings on the charges against them on the ground that their Charter rights under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time has been infringed.

[3]           This case could not proceed on July 5 and 6, 2017 and August 30 and 31, 2017 because the Crown was unavailable.  Although Crown Counsel was available other days in July and August 2017, no other court time was available and the case was adjourned to November 14 and 15, 2017.  As a result of a consistent effort by the Crown to obtain earlier dates, this case continued on October 4, 2017 and the Crown closed its case that day.  However, the Crown made an oral application that day, which was adjourned to November 14, 2017 to permit the Sikoras time to consider the application.

[4]           Crown Counsel in order to utilize the remaining 40 minutes of court time on October 4, 2017 made its submissions on this application and the case was adjourned to November 14, 2017.

[5]           At that time the defence was only able to proceed with its submissions on this application.  The defence required further time to subpoena witnesses and determine whether one of both of the accused would testify.

[6]           The issue becomes how much time, if any, between October 4, 2017 and March 8, 2018 should be subtracted from the total delay.

[7]           I am not prepared to attribute any delay to the defence for the time period between October 4, 2017 and November 14, 2017 due to the outstanding Crown application and the limited amount of time that was available after the Crown case concluded.

[8]           There were 9 other matters that proceeded on November 14, 2017 leaving only about two hours for this case and the trial date of November 15, 2017 was cancelled.

[9]           I have concluded that the Sikoras should have been prepared to call some evidence on November 14, 2017.  While I appreciate, they misunderstood that the Crown was only making its submissions on the delay application on October 4, 2017 to use available court time and the expectation was that the defence would call evidence on November 14, 2017, that misunderstanding may have caused delay.  I say “may”, because of course due to the other cases on November 14, 2017 only a portion of the day was available for this case.  I am satisfied that given the amount of time that was required for the defence case and submissions in all likelihood this case would not have completed on November 14, 2017 (if the defence had been ready to proceed) due to a lack of court time.

[10]        I recognize that the defence did use the available time on November 14, 2017 for its submissions on this application but nonetheless, the defence inability to proceed may have caused some delay.

[11]        However, I am not prepared to attribute the entirety of the almost four month delay (between November 14, 2017 and March 8, 2018) to the defence because this matter should have continued by the end of January 2018 at the very latest.  The Chief Judge’s practice direction requires continuations to be set within 30 days.  This case could not proceed until March of 2018 either because of systemic limitations in the court system, or Crown unavailability.  However since the defence may have been the cause of the delay, I will classify 2.5 months November 15, 2017 to January 31, 2018 as defence delay.  I consider this the longest it should have reasonably taken to obtain a continuation date.

[12]        I therefore find that 5 months shall be deducted from the total delay of 24 months.  The net delay in this case of 19 months remains above the ceiling and presumptively unreasonable.

[13]        Crown Counsel submits that this trial did not complete in the time scheduled because most of the time was used on a s.9 Charter application and the Sikoras’ attempts to litigate collateral issues.  While I agree these matters increased the length of the trial, it is my judgment that they were defence actions legitimately taken to respond to the charges and are therefore accounted for in the ceiling.  See R. v. Jordan 2016 SCC 27 at para. 65.

[14]        This matter did not complete within 18 months for the following reasons:

[15]        This was not a complex case.  Most of the delay in this case arose after the Jordan decision. 

[16]        The defence filed its Charter notice in March 2016 and was also prepared to set a trial date in March 2016.  The defence in no way contributed to the delay in obtaining the April 2017 trial dates.  The delay arose from Crown unavailability and systemic limitation on judicial resources.  When the Jordan decision was released, 2017 trial dates in Sechelt had not yet been determined.  However prior to setting the April 2017 trial date, the scheduler did consider the Jordan principles and trial dates were set within the Jordan parameters.

[17]        There is no doubt Crown Counsel took steps to minimize delay by requesting case management conferences, requiring a Vukelich hearing, providing written arguments, objecting to collateral issues and maintaining constant contact with the scheduler to obtain earlier dates.  As previously noted, however, significant delay arose, post Jordan, because of the number of matters that were on the list which reduced the available trial time for this case and Crown unavailability.  As noted in R. v. Jordan at paragraph 75 the Crown and justice system should be capable of prioritizing cases.

[18]        The competing matters, lack of court time and Crown unavailability were the main reasons for the delay.  These could have been (reasonably) avoided and remedied.  They are not exceptional circumstances.

[19]        As noted, this was not a complex case nor was it a moderately complex case.  This is not a jurisdiction plagued by lengthy persistent and notorious institutional delay.

[20]        Most of the delay arose post Jordan.  The April 2017 trial dates were set considering the Jordan principles.  The Crown acted, and I commend the Crown for it, in accordance with the Jordan principles to minimize delay.  The defence did not contribute in any way to the delay in setting the April 2017 trial dates.  The defence gave appropriate time estimates for the trial and filed Charter notice in March of 2016.  It is my judgment that neither party relied on the law as it previously existed as that phrase is defined in R. v. Jordan.  Accordingly, I find that there are no transitional exceptional circumstances.

[21]        Delay in this case is 19 months.  As previously stated that is above the ceiling and presumptively unreasonable.  There are no circumstances either exceptional or transitional which reduce that delay.  Accordingly, the application is granted and a judicial stay will be entered for both accused on all counts.