IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On December 15, 2017, after a lengthy trial, this Court found Mr. Ranu guilty of multiple charges on Information 233320-2-C.  On that day, Mr. Ranu filed an application seeking a judicial stay on this matter claiming his right to trial in a reasonable time had been infringed under s. 11(b) of the Charter. Arguments on this application were heard on May 30, 2018. This is the Court’s ruling on that application for a stay.

[2]           Mr. Ranu was one of six persons charged on a 44 count Information. Mr. Ranu was charged on 19 counts, including 3 counts of possession of controlled drugs for the purpose of trafficking, which the Crown alleged was part of a conspiracy. The offence dates alleged were from December 18, 2014, to February 17, 2015.  Mr. Ranu was arrested on February 17, 2015, and Mr. Waddington appeared with him on that date and has acted for him throughout this proceeding.

[3]           On February 27, 2015, Mr. Ranu was released on a recognizance of bail with a $100,000 surety. One of the terms of his bail required him to be in his residence from 7 pm to 6 am seven days a week.  The start time for the curfew was relaxed to 10 pm on November 27, 2015.  The curfew condition was varied again on March 15, 2017, permitting him to be outside of his residence except between midnight and 6 am. 

[4]           On March 24, 2015, the Public Prosecution Service of Canada (hereinafter the Crown), provided initial disclosure to counsel for Mr. Ranu and the other five lawyers who had, by that time, been retained by the other accused.  The letter accompanying the disclosure asked Defence counsel to provide reasonable notice of any pretrial applications they intended to make to allow the matter to proceed without delay and to provide for proper scheduling of court time.

[5]           On April 15, 2015, further disclosure was provided to Defence counsel, including new counsel for the co-accused, Mr. Smallboy. On June 2, 2015, another lawyer for Mr. Smallboy withdrew as counsel of record.

[6]           At a July 31, 2015, appearance before Judge Birnie, Mr. Bick, lead counsel for the Crown, told the Court all involved were ready to arraign the case and had been for a while.  He added “[t]he problem has been that Mr. Smallboy just retained new counsel, so we’ve been holding off on that for the arraignment.”  Crown advised the Court the trial time estimate was a bit difficult, but the matter would probably need four weeks for trial, plus a week of voir dire in advance of the trial.  Mr. Waddington’s agent at this appearance agreed with this estimate of time on behalf of Mr. Ranu.  Mr. Bick said the Crown expected to call about 60 witnesses and the matter was adjourned to fix a pre-trial conference, as per the practice at the Main Street courthouse before setting trial dates on lengthy matters.

[7]           On August 20, 2015, Judge Low heard a Pre-trial Conference involving five of the six accused.  Mr. Gervin appeared on this date as counsel for Mr. Smallboy, but there was some indication that he would not continue to be retained. Judge Low noted there would be a three week Charter voir dire relating to search warrants executed in this case and the presiding judge would need at least 60 days after that to render a ruling on the voir dire.  A further week was to be scheduled for a voluntariness voir dire involving two of the defendants.  Judge Low directed that six weeks be scheduled for the main portion of the trial, anticipating approximately 63 witnesses would be called, and that this part of the trial could follow immediately upon the voluntariness voir dire.  Judge Low also directed that two weeks be scheduled for closing submissions at least one week after the evidence portion of the trial closed.  The fixing of the 12 week case was adjourned for the receipt of counsels’ schedules and, thereafter, for a trial judge to be assigned to the case. 

[8]           At this s. 11(b) hearing, counsel for the Crown said that he and Mr. Waddington were of the view that Judge Low’s 12 week trial estimate was more than what was needed and that after the pre-trial they discussed trying to “shave” down the time.

[9]           On November 13, 2015, Mr. Bick sent a letter to all Defence counsel in which he noted “Counsel for Mr. Ranu and for [sic] counsel for Mr. McCormick stated that this time estimate was too high.  We have another case conference scheduled for November 17, 2015, to re-visit the issue.”  The letter states that the Crown had been reviewing “… the file very carefully since then, looking for places where we can trim the time estimates.”  The letter details how it was anticipated each of the voir dires and the trial proper would unfold and how much court time was needed.  The letter, which was provided to Judge Low, concludes:

[10]        In an email of November 13, 2015, Mr. Bick noted that the two prosecutors had scheduling problems for part of October 2016, but that the rest [of 2016] was clear for them. 

[11]        The Crown lawyer who appeared before Judge Low on November 17^th, 2015, set out in an email provided to this Court that Defence counsel were in agreement with Mr. Bick’s 10 week overall time estimate and the plan to schedule the case in blocks of time.  The November 17^th email noted that counsel was not yet retained for Mr. Smallboy (apparently due to a Legal Aid appeal), and thus, the matter was adjourned to December 9^th, 2015, to fix trial dates. 

[12]        On November 19, 2015, counsel for the co-accused Mr. McCormick, wrote to Mr. Bick noting that dates had not yet been set for the trial.  The letter expressed a concern about the punitive nature of Mr. McCormick’s bail noting “the earliest dates for all counsel to sit for more than 2 weeks is not until 2017.” On December 14, 2015, Mr. McCormick’s counsel provided his available dates to schedule this trial.  The dates available in his calendar for 2016 were fairly extensive except in the fall between September 12^th and the end of November 2016.  On December 14, 2015, counsel for Ms. Armitstead, provided his available trial dates indicating availability from September 5-20, 2016; October 10-21, 2016; and from March 2017; onwards. 

[13]        On December 17, 2015, counsel for Mr. Khan wrote to Mr. Bick about some challenges in his schedule as a result of other court commitments he had. The following day, counsel for Mr. Khan wrote that he had a window for this case of January - March 2017. He added that if this period was not available on this matter, he would have to look into the spring of 2018.

[14]        On December 14, 2015, Mr. Waddington’s associate sent an email to Mr. Bick advising that his schedule was “open beginning March 2017” and that Mr. Smallboy’s lawyer’s schedule was open beginning June 2017.  Mr. Bick sent a response on December 17, 2015 stating:

[15]        Counsel for Mr. Smallboy replied to Crown the next day stating his “dates are calendar related and unfortunately those are the only dates I have available.” On this same day, Mr. Bick sent the following email to all five Defence lawyers:

[16]        Although the record is not clear, it appears counsel began working with the Judicial Case Managers to schedule trial time in 2017, given the lack of mutual Defence availability, near the end of 2016, when the Court calendar could likely have accommodated this case. On January 7, 2016, the Judicial Case Manager, Ms. Butler, as part of on-going work to schedule this trial, sent an email to Crown advising the Court did not have time in January 2017, due to other long trials. Ms. Butler stated she would start looking in February 2017.  Mr. Bick replied to Ms. Butler on January 8^th, stating he was getting buy-in from the Defence for February 2017, and asked her to start looking at dates then.  In a second email this same date to Ms. Butler, Mr. Bick stated:

[17]        Further emails between Ms. Butler and Mr. Bick on January 11, 2016, discussed the setting of trial time into the first part of 2017, and noted that counsel for Mr. Khan was starting a long trial in April 2017. Mr. Bick stated “the preferable thing to do is to shoehorn this thing, if possible, between February and early April.”  Crown and Ms. Butler exchanged further correspondence at this time in the course of which Mr. Bick noted he “can’t move Waddington into February” to go along with a start date offered for February 14, 2017, but the five weeks for the case could proceed from February 27 to March 31, 2017.  On January 13, 2016, Ms. Butler confirmed the scheduling of the first voir dire (not involving Mr. Ranu) from February 27 to March 2, 2017, and the second voir dire from March 7 to 24, 2017. 

[18]        On January 13, 2016, Mr. Bick wrote to Mr. Waddington and Mr. Smallboy’s lawyer stating that the Court offered voir dire dates in early February 2017, but both counsel had advised that February did not work for them. Consequently, Mr. Bick noted “…the earliest we could start, based on everyone’s schedule, was February 27, 2017.” Mr. Bick stated that given Mr. Peters’ unavailability in the months following the voir dire, there was no point in setting trial time and that trial dates would be have to be set in conjunction with the June 2016 pre-trial.

[19]        On June 16, 2016, the case was again before Judge Low at which time the Court was told that two of the accused would be resolving their charges and not proceeding to trial.  Counsel for the Crown noted the June 16^th appearance was to be for the purpose of setting trial time to follow the voir dire portion of the case in early 2017.  Judge Low observed that Crown had been working very hard to see if the time estimate could be shortened but with little success, although there had now been some significant concessions.  Mr. Bick agreed with Judge Low’s observation and noted with the resolution of the case against two of the accused, the voir dire would take about half of the time previously estimated and the trial estimate could be reduced by about 25 percent.

[20]        Mr. Bick asked Judge Low to direct the lawyers back to the court scheduling staff, holding on to the four weeks set in March and to “..look for more time later in the spring, possibly April, and try to finish the trial in that amount of time.”  The Crown noted that only two and half weeks in March might be needed for the voir dire, but they wanted to keep the remaining time for the trial proper to start around March 20^th, 2017.  Judge Low then engaged Mr. Bick in a discussion about how the Court would deal with the issuance of its ruling on the voir dire to which Crown suggested it could start by calling witnesses in the trial for whom an admissibility ruling on the voir dire did not depend.  This appearance concluded with a direction to promptly set a pre-trial conference before me as the assigned trial judge.

[21]        That pre-trial was promptly convened on July 5, 2016, at which time Mr. Bick noted there were about 60 witnesses for the Crown. Once admissions were pursued, he did not expect that number to drop below 40 to 45 because of the nature of the surveillance evidence which formed the bulk of the anticipated witness testimony.  Mr. Bick acknowledged Mr. Ranu would have standing to challenge a one party consent (for a recording device worn by an undercover officer) and that Mr. Waddington had indicated he would likely be challenging the wire.  Mr. Bick also noted the possibility one of the accused might challenge the use of pole camera video relating to the “stash house”.  Mr. Bick advised he thought the first four weeks of court time set for March 2017 would be used for voir dire and that the amount of time was generous and any remaining time could be used for evidence on the trial proper which was not dependent on the voir dire ruling.  The Court indicated it was prepared to hear the evidence on the trial proper somewhat out of order as proposed and Mr. Waddington said he did not have a problem with this either.

[22]        Mr. Bick told the Court even with a lot of admissions, he did not think the case could be finished in the four weeks set in March 2017, and now that a judge was assigned to the case arrangements should be made to schedule “another block of time later in the year to finish the case”.  Despite the resolution of the case involving two of the accused, Mr. Bick asked that another four weeks be scheduled to conclude the case.  Counsel for Mr. Smallboy advised the Court that the scheduling of the remaining time was going to be a problem from his perspective because he was co-counsel on two murder trials and he suggested the fix date for the final four week block be postponed to mid-August 2016, when his calendar would crystallize. Through his agent, Mr. Waddington stated his schedule in 2017 was quite free but added “as long as it’s June or July of 2017”. 

[23]        The Court observed “that there’s [not] much more that the court can do but to try to shoehorn all of this in” and noted if summer 2017 was looking to be the likely time for this trial to continue, the Court would be available. The matter was then adjourned to schedule the further four week block of trial time and Mr. Bick concluded by noting “From my perspective getting the second block moving is the most important thing.”

[24]        On July 6, 2016, Mr. Bick wrote to the lawyers acting for the three remaining accused noting the Court had directed at the June 2016 pre-trial that it wanted four more weeks set for trial in the summer of 2017.  Mr. Bick said his schedule was generally free during that time and asked to hear from Defence counsel as to their availability.

[25]        On July 8, 2016, the Supreme Court of Canada issued its ground-breaking s. 11(b) decision in R. v. Jordan.

[26]        On September 12, 2016, Mr. Bick wrote again to the three Defence lawyers stating he had heard from Mr. Smallboy’s counsel and asked Mr. Waddington and the other lawyer to reply with their available dates.  The third lawyer replied the next day stating he was available July 4 to 18, 2017, and Mr. Smallboy’s lawyer wrote an hour later stating he was in the same place. On September 13, 2016, Mr. Waddington’s office wrote advising of his availability from May 1-26, June 5-30, and July 10 to August 4, 2017. The continuation time was then scheduled for July 10^th to the 28^th, 2017. 

[27]        On January 27, 2017, Mr. Bick wrote to Mr. Waddington enclosing a copy of a “Crown synopsis” to assist in preparing for a January 31, 2017, pre-trial and inviting discussion on potential admissions.  Mr. Bick also asked Mr. Waddington to advise whether there would be any Charter applications or other pre-trial motions, noting no notices had yet been given. 

[28]        On January 31, 2017, the case was before me for a further pre-trial conference.  Mr. Bick told the Court only two accused remained and that Crown and Defence were in agreement that time could be dropped from the overall trial estimate.  He stated the “…only question is how much time.  I think -- at this time we’re ad idem that we can lose at least one week out of the February block, and my friend and I, for different reasons, would both like to lose the first week.” He noted that if one of the anticipated Charter challenges did not occur, more of the evidence from the second block of the proceeding could fit into the March period, but added both he and Defence were “still looking at doing this case in two blocks, one in March and one in July”.  Mr. Waddington, on behalf of Mr. Ranu, stated “Everything that my friend has said is correct” and “the time is fine for now and we think it’ll be less than what’s set.”  Both counsel wished to give up the first week of the March block rather than the last week. 

[29]        The case was spoken to again before me on February 21, 2017, at which time it was learned that Mr. Smallboy would likely be disposing of his charges leaving only Mr. Ranu going to trial.  Mr. Waddington said in light of admissions being made, counsel was asking the Court to adjourn the start of the trial to March 13^th, 2017.  Mr. Bick stated given the informal Charter notice, the Crown had received indicating only one search warrant was in issue, he was confident that matter could be dealt with on March 13^th with the trial commencing on March 15^th.  Thus, Crown and Mr. Ranu together asked the Court to give up the weeks of February 27 (when Mr. Waddington was unavailable) and March 6, with the hearing to be held the weeks of March 13 and 20 and July 10, 17, and 24. 

[30]        On March 9^th, 2017, Mr. Ranu applied to adjourn the start of the trial from March 13^th to the 15^th, due to Mr. Waddington having a medical issue to deal with.  Counsel for the Crown indicated it would like to proceed on the 13^th but did not oppose the adjournment on the basis sought.  The Court was told this trial was not actually scheduled for March 14^th because Mr. Waddington had other matters set.  The Court was unavailable to sit on March 17^th, due to an administrative commitment which the court observed had unfortunately not been brought to counsel’s attention earlier. 

[31]        On March 15, 2017, a voir dire in this matter was held. The decision on the voir dire was scheduled to be given on April 4^th, but was adjourned due to Mr. Waddington being unavailable on that date for personal reasons.  The matter was re-scheduled for May 11^th, 2017, and the decision given then, almost two months ahead of the next block of trial time.

[32]        On June 29, 2017, Mr. Bick wrote to Mr. Waddington about the block of trial time approaching and declined Mr. Waddington’s request to abandon the first week of the upcoming continuation.  Mr. Bick noted that nine to eleven more days of court time was likely needed for the Crown evidence, “leaving very little time for Defence evidence and final submissions”. 

[33]        On July 6, 2017, Mr. Waddington provided notice to the Crown for the first time relating to s. 8 of the Charter and the invasion of Mr. Ranu’s privacy as the target of “pole camera surveillance”.  The trial resumed on July 11^th but did not conclude by July 27, 2017, and the matter was scheduled for October 3-5 and November 6, 2017. 

[34]        A summary of the six week trial is set out below.

[35]        Crown and Defence were mostly ad idem on the above chronology, but disagreed as to how events should be categorized and to the transitional case assessment in this matter.

[36]        Mr. Waddington submitted the overall delay in this case was 33.5 months and that no Defence delay should be deducted from this amount.  It was submitted there were no discreet events for which any time should be subtracted nor was this case sufficiently complex so to be governed other than by the presumptive approach in Jordan.  Finally, it was argued that a transitional case analysis should not lead to a conclusion that the length of time to trial in this case was acceptable under s. 11(b).

[37]        Mr. Bick conceded the global delay in this case was 34 months and was presumptively unreasonable.  The Crown acknowledged this case did not qualify as sufficiently complex pursuant to Jordan. In addition to Defence delay, the Crown submitted the Court should deduct 4.5 months to account for “discrete exceptional events”.  Mr. Bick submitted that examining this case on the basis of transitional exceptional circumstances would show the Crown had rebutted the presumption in reliance on the state of the law at the time.  In this regard, Crown Counsel highlighted Mr. Ranu’s tolerance of the actions of the co-accused, the scheduling of this case in two phases, and his passivity in the face of the passage of time.  

[38]        Section 11(b) of the Charter guarantees an accused person the right to be tried within a reasonable time. In R. v. Jordan 2016 SCC 27 (CanLII), 2016 SCJ 27, the Supreme Court of Canada outlined a new approach to assessing the timeliness of criminal trial proceedings (at paragraphs 46-48):

[39]        The Supreme Court noted the question of delay cannot be assessed by just a mathematical application or formulaic approach (at paragraph 51):

[40]        The SCC considered the role of Defence counsel in the timeliness of trial proceedings (at paragraphs 61, 63-64):

[41]        The Supreme Court held that delay which exceeds the mandated ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances and noted (at paragraphs 69-71):

[42]        Finally, the SCC also considered how the new framework for assessing delay should be applied to cases already in the system prior to the decision in Jordan. The Court stated (at paragraphs 94-97):

[43]        In R. v. Cody 2017 SCC 31 (CanLII), 2017 SCJ 31, the Supreme Court provided further direction regarding the application of the new framework to cases already in the system (transitional cases), at paragraphs 69 and 71:

[44]        There is no dispute in this case that the presumptive ceiling of 18 months for a trial in the Provincial Court was exceeded and is one of 34 months.  As set out in Jordan, Defence delay, if any, is to be deducted from the total delay. Defence delay can be found in two ways.  The first is by clear and unequivocal explicit or implicit waiver. The second route is where the Defence conduct is the sole cause of delay. 

[45]        The Ontario Court of Appeal in R. v. Gopie 2017 ONCA 728, observed (at paragraph 136) that “…attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent” with Jordan. However, the Court noted that did not mean delay caused because a matter proceeded jointly against multiple accused is irrelevant and that it can amount to exceptional circumstances.  The Court noted (at paragraph 139) “the Crown’s legitimate interest in having jointly-charged accused tried together must be balanced against the accused’s constitutional right to be tried within a reasonable time.”

[46]        In R. v. Smith 2017 BCSC 1431, Justice Armstrong considered the question of waiver and concluded “…the burden of proving that an accused has waived his or her rights rests with the crown and must be construed in light of all of the circumstances in order to determine whether there should be an inference drawn as to waiver (at paragraph 46).  He added that waiver cannot be assumed when an accused consents to an adjournment brought about by a co-accused’s need to attend to pre-trial procedures (at paragraph 53). 

[47]        In R. v. Cooper 2017 BCPC 11, Judge Rideout noted that the availability of Defence counsel for trial should be considered in conjunction with the realities of counsel’s practice.  However, Judge Rideout added that a court should not “…be too forgiving of delays caused by conflicts in Defence counsel’s schedule” (at paragraph 72).

[48]        The record in this application was unclear as to the number of appearances and the reasons for those appearances prior to the pre-trial conferences held starting in late 2015.  Nonetheless, it is clear Mr. Ranu was ready to arraign at a fairly early date but that did not occur due to issues with Mr. Smallboy retaining counsel. The fixing of trial dates was further complicated by counsels’ concern that Judge Low’s time estimate was greater than what was needed. 

[49]        In the course of counsels’ discussions about scheduling the trial, on December 14, 2015, Mr. Waddington’s office sent an email to the Crown advising that his schedule was “open beginning March 2017”.  Counsel for the Crown promptly wrote to Mr. Waddington stating “March 2017 - is too long to wait to begin this thing”.  There was no indication that Mr. Waddington replied to the prosecutor’s letter.

[50]        Mr. Bick sent all of the Defence lawyers a letter on December 17, 2015, where he stated “… I am therefore requesting that all counsel go to their clients and seek instructions to waive their s. 11(b) rights. If you are able to get instructions we can proceed to set trial dates in 2018.  If not, I will look at severance options so that everyone has a trial within a reasonable time.”  Again, there was no indication that Mr. Waddington replied to this letter.

[51]        While I will deal later with the matter of severance, I conclude at this stage that issues with Mr. Smallboy negatively impacted the co-accused being able to arraign this case and fix a trial date.  Mr. Ranu was prepared to arraign this matter within a reasonable period of time. The evidence at this delay application was lacking as to what dates the Court could have provided for this trial, but being very familiar with scheduling in the Vancouver Region, I take judicial notice that the matter could likely have been set sometime in the fall of 2016 (following arraignment in December 2015). I find Mr. Ranu chose to keep Mr. Waddington as his lawyer knowing his schedule would not permit his trial to start until March 2017 and this was an implicit waiver of around four months.

[52]        At the pre-trial conference held on July 5, 2016, I exhorted counsel to work to schedule the remaining four weeks of trial time required.  In discussions about available dates, counsel for Mr. Ranu stated he was available “as long as it’s June or July of 2017”.  It was not until Mr. Waddington was prompted repeatedly by Crown counsel to provide his available dates that he wrote back on September 13, 2016, advising of his availability from May 1-26, June 5-30, and July 10 to August 4, 2017.  The Court was ready to give its ruling on the voir dire as originally scheduled on April 11^th, 2017, but that date was put over due to Mr. Waddington’s unavailability to May 11^th, 2017. 

[53]        At a pre-trial held on January 31, 2017, the Court invited counsel’s submissions on the plan to conduct this case in two blocks of time (March and July 2017).  Amongst other comments, Mr. Waddington stated “the time is fine for now”.  While I would not categorize this remark as explicit waiver, it is consistent with Mr. Ranu being content with the timeline in place for his trial. I conclude from this that Mr. Ranu implicitly waived some part of the intervening three month hiatus between March and July 2017 and deduct two months of that time from the overall delay.  Accordingly, I find the net delay due to Defence delay/waiver to be six months. 

[54]        I turn next to an examination of the discreet elements of the carriage of this case by counsel on behalf of Mr. Ranu.  Mr. Waddington made reasonable admissions in this case and those admissions went some distance to shortening the length of the trial.  Similarly, Mr. Ranu did not litigate all Charter issues which might have been open to him and the admissibility of only part of the Crown’s evidence was contested and dealt with in March 2017. 

[55]        Both Crown and Defence asked that the week of March 6^th, 2017, be vacated for this trial.  While that decision was regrettable in retrospect, it plays no part in my assessment of the discreet steps taken by Defence in this case. However, the record shows that Mr. Waddington’s personal or other court commitments resulted in the loss of trial time on March 13 and 20^th. 

[56]        In the second block of time, the Court lost a half day of sitting time on July 20^th due to Mr. Waddington having a medical appointment to attend to.  Most of the day was also lost on July 27^th because of Defence counsel feeling ill, although I find it may have had little impact on the timing of the overall trial in that counsel were subsequently able to agree to an admission about the expert evidence then in front of the Court. 

[57]        As for the final four hearing days in the fall of 2017, Mr. Waddington submitted the time between October 5^th and November 6^th was reasonable in that it afforded him time to prepare closing submissions.  However, Mr. Waddington only had two days of evidence to update what he could have prepared from earlier in 2017, and Mr. Bick was ready to proceed the day after the evidence wrapped up.  Defence counsel does not ordinarily get time to respond to the closing submissions of Crown. Had Mr. Waddington supplemented his oral submissions with written argument (as the Crown did) and time not been lost on October 3^rd and 4^th, I find the case could have concluded on October 5^th, rather than November 6^th.   Accordingly, I find Mr. Ranu was responsible for about four weeks of delay at this stage.  I will return to the impact of the loss of single or partial court days in the assessment below of exceptional circumstances.

[58]        Based on this analysis, I find the net delay, after deducting Defence-caused delay totalling 7 months, to be 27 months, still above the presumptive ceiling. Accordingly, I will proceed to examine this matter to see whether the Crown established exceptional circumstances. 

[59]        For the purpose of this part of the analysis, Mr. Bick conceded this case would not meet the high hurdle of complexity established by case law interpreting Jordan.  Accordingly, I will proceed to examine whether the Crown took reasonable steps to attempt to avoid delay bearing in mind the law does not require the Crown to show that any steps taken were ultimately successful (Jordan at paragraphs 69-70). 

[60]        To begin, Mr. Ranu submitted the delay in this case could have been ameliorated by severing the case involving Mr. Smallboy given his difficulties retaining counsel.  The British Columbia Court of Appeal addressed the matter of severance in the context of a delay application in R. v. Singh 2016 BCCA 427, (at paragraphs 81-82): 

[61]        Although the charges against the other defendants were ultimately resolved outside of a trial, this was not something the Crown knew when considering the prospect of severance for Mr. Ranu.  Having heard the evidence relating to the conspiracy and to the involvement of other persons charged in this case, I conclude it both preferable and appropriate for the Crown to have proceeded to try the accused together.  I find that separate proceedings against the accused could have significantly impacted the justice system by taking more finite judicial time, more staff time, and would have had required a large number of police witnesses to repeatedly come to court and be taken away from their regular duties. 

[62]        Although Mr. Bick wrote to Mr. Waddington and raised the prospect of severance, unlike counsel for Mr. McCormick, Mr. Waddington neither responded to the Crown’s query, nor did Mr. Ranu advocate for severance to expedite the case.  Even had Mr. Ranu’s case been severed, there would have been no impact on the timeliness of this trial given that Mr. Waddington was unavailable to start the case until March 2017.  It seems likely that both Crown and Defence saw severance as pointless given that the start of the trial was put off because of Mr. Waddington’s schedule. There was never any indication that he would be available before March 2017.

[63]        As to other exceptional circumstances, Mr. Bick submitted this Court could find the bulk of the case could have been accommodated between March 6^th and March 24^th had the time been fully used. Given that the Crown joined with the Defence in seeking to adjourn the week of March 6, I do not think it appropriate to factor this week into the assessment. One sitting day was lost due to Defence counsel and one owing to the Court’s own calendar in the week of March 13.  One more day was lost due to Defence counsel’s schedule the week of March 20^th and a half day due to my schedule. Given the number of trial days ultimately needed to conclude this case, I am unable to find the matter could have been concluded had the above-noted time not be “lost” in March.

[64]        As noted above, counsel for Mr. Ranu had other scheduling issues that resulted in just over 2 days of court time being ‘lost’ again in July 2017. Collectively, Mr. Waddington’s own scheduling issues resulted in the effective loss of a four-day sitting week in this case. Had that time been used, the extra time needed to conclude this case in the fall of 2017 would have been unnecessary and the case could have concluded in July 2017.

[65]        Mr. Bick submitted the combination of the lost time due to Mr. Waddington’s medical and personal issues with the last-minute pole camera argument resulted in the case not concluding within the time scheduled for trial in July 2017.  The days lost to illness were not something the Crown could have reasonably anticipated. Mr. Bick flagged the issue of the pole camera at a pre-trial to no avail. I find these matters to be discreet exceptional circumstances and, consequently, assess net delay herein as if the case could have concluded by July 2017. Given the assessment set out above that the case could have concluded by October 6 (rather than with Defence submissions on November 6), I deduct two more months for these discreet events.

[66]        This Court also needs to consider the final period of time between closing submissions on behalf of Mr. Ranu and the issuance of reasons for judgment on December 9, 2017.  The Alberta Court of Appeal considered the categorization of the passage of time required for a trial judge to prepare its decision in R. v. Mamouni 2017 ABCA 347.  The majority of the Alberta Court observed this time requirement could be an exceptional circumstance.  Justice Slatter, in a concurring opinion, held that “the time it takes a trial judge to render a reserved decision during a trial is not “delay” at all, and should not be counted in the s. 11(b) analysis (at paragraph 71).  Justice Slatter also noted that reserved decisions take time but it is not “delay” (at paragraph 84) and there is nothing that the Crown can do about the time involved (at paragraph 88).   In the concurring decision, the Court added that while reserved decisions do not fit within the Jordan concept of being unexpected, requiring judges to assess the Charter implications of their own work time is inappropriate (at paragraphs 89 & 90).

[67]        I find the decision in Mamouni persuasive and consider it appropriate to deduct a month from the total delay in relation to the time required for the Court to both prepare its decision and to find a mutually convenient date for the case to be reconvened so that the decision could be delivered. 

[68]        The cumulative effect of approximately 3 months of time for these discreet exceptional events should be deducted from the total delay, and has the effect of bringing the net delay down cumulatively to 24 months.  Given that the delay still exceeds the presumptive ceiling, I will proceed to examine this case under the transitional case approach.

[69]        The Ontario Court of Appeal in R. v. Picardi 2017 ONCA 692 observed that “Reasonable reliance on the law as it previously existed constitutes an exceptional circumstance in this transitional period” (at paragraph 5).  However, post-Jordan cases make clear that reliance on the old law will not justify delay in all transitional cases.

[70]        Counsel for Mr. Ranu submitted his liberty was impacted by the fact he was on bail throughout these proceedings, and, in particular, was subject to house arrest.  The most restrictive house arrest condition was in place from February 27^th, 2015 until November 27, 2015 when it was liberalized.  The house arrest condition was further loosened up on March 15^th, 2017, requiring Mr. Ranu to be inside his residence from midnight until 6 am.  While I accept the delay in this case resulted in Mr. Ranu being on bail for longer than he would have been had this case proceeded expeditiously, the most restrictive house bail condition was moderated before delay started to mount in this case. 

[71]        Although Mr. Ranu tendered no evidence at this s. 11(b) hearing as to how he was specifically impacted by his bail conditions, I find it appropriate to infer some prejudice given the significant surety he was required to post, the extensive conditions, and that the charges were outstanding for so long. 

[72]        The Ontario Court of Appeal in Picard (supra) considered the matter of complexity in a s. 11(b) application and stated that the issue can be considered at two stages (at paragraphs 54-55, and 57):

[73]        While I agree with the Crown’s concession that Mr. Ranu’s case does not meet the complexity hurdle as an exceptional circumstance under Jordan, this case did have elements of complexity to it for the purposes of this stage of the assessment. There were six accused charged; a conspiracy was alleged; wiretap evidence from an undercover officer was tendered; Charter issues as to the admissibility of evidence were argued and required court rulings; the offence dates covered the span of months; the crimes alleged involved multiple commercial and residential locations; and the matter had to be scheduled to allow for in excess of 45 witnesses to be called.

[74]        The coordination of multiple Defence counsel calendars had a complicating element to it beyond the Crown’s ability to control despite efforts to do so. Mr. Bick observed that the Crown would not have been so accommodating of Mr. Smallboy’s lawyer’s schedule had the Jordan framework been in place while this case was at the arraignment stage. By the time the Jordan decision issued, Mr. Waddington’s unavailability until March 2017 effectively made the co-accused issue moot.

[75]        While I have already noted that Mr. Ranu’s ability to arraign this case and set it down for trial should not have been negatively impacted by Mr. Smallboy, I find it would be inappropriate to give Mr. Ranu a windfall because of the unavailability of counsel for another accused (see Gill, J. in R. v. Pipping and Summers 2018 BCPC 73, at paragraph 98).

[76]        As noted earlier, Mr. Ranu filed his application under s. 11(b) of the Charter the day he was convicted.  At no point prior to this time did Mr. Ranu tell the Court or the Crown, verbally or in writing, that he was concerned about delay. Some courts have been critical of Defence counsel waiting until a verdict to bring an s. 11(b) application, and of lying in wait and raising no concerns about delay throughout the proceeding.  By not raising these concerns in a timely way, the Crown may be unable to respond by, for example, bringing a severance application, and no one will know whether such an application would have succeeded in the case because one was not made (see R. v. Sanghera 2014 BCCA 249, at paragraphs 139 & 142).

[77]        Mr. Bick submits this case should not be stayed because the Crown was left with the clear impression that moving this case forward quickly was not important to Mr. Ranu. The fact Mr. Waddington sought to back-end load the case by reducing the first block of trial time in March 2017, rather than in July 2017, is consistent with a lack of concern as to timeliness. This case was actually scheduled to start the week before Mr. Waddington first became available. It would have been pointless for the Crown to have applied to sever or seek an earlier trial date for Mr. Ranu. 

[78]        It is important to note that Mr. Waddington did make admissions on behalf of Mr. Ranu, but they were made close to the start of the hearing and did not afford the opportunity to look at moving the case ahead to an earlier date because of a shorter trial time estimate. Regardless, efforts by Crown and Defence to shorten the trial would not have resulted in this trial starting earlier due to the fact Mr. Waddington was not available until March 2017. While it is highly likely that post-Jordan, Defence counsel’s lack of availability for trial would not be accommodated without an explicit waiver, it does not seem appropriate to find a s. 11(b) breach in this transitional case.

[79]        I find the record here shows Mr. Ranu acquiesced to the scheduling of this case, not because he was consenting to the inevitable, but because he was content with the pace. Even after the pronouncement of the decision in Jordan in July 2016, Mr. Ranu did nothing to raise trial timeliness as a concern or to try to expedite the matter. Counsel on his behalf failed to use available court time fully.  On a transitional case analysis, I conclude this is not a case in which a judicial stay under s. 11(b) should issue.

[80]        As noted, I find the net delay in accordance with the Jordan framework to be 24 months.  On a transitional case analysis, I find that Mr. Ranu would not be entitled to a stay. In summary, I do not find Mr. Ranu’s s. 11(b) Charter rights have been violated and I decline to issue a stay of proceedings in this case.  The matter must now be set expeditiously for sentencing.