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R. v. Jiang et al, 2018 BCPC 222 (CanLII)

Date:
2018-09-14
File number:
243262-1
Citation:
R. v. Jiang et al, 2018 BCPC 222 (CanLII), <https://canlii.ca/t/hv35n>, retrieved on 2024-03-28

Citation:

R. v. Jiang et al

 

2018 BCPC 222

Date:

20180914

File No:

243262-1

Registry:

Vancouver

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

Criminal

 

 

 

 

 

REGINA

 

 

v.

 

 

KENNIE JUN-XI JIANG

AMAN DEEP MANJ

ROHAN OMAR JOHNSON

 

 

 

 

RULING on CHARTER VOIR DIRE

OF THE

HONOURABLE JUDGE G. RIDEOUT

 

 

 

 

Counsel for the Crown:

M. Myhre

Counsel for Defendant Jiang:

C. Muldoon

Counsel for Defendant Johnson:

W. Sweeney, Articled Student

(as agent for I. Donaldson, Q.C.)

Counsel for Defendant Manj:

R. Fowler, Q.C.

Place of Hearing:

Vancouver, B.C.

Dates of Hearing:

January 2, 10, 26; May 23, 24, 25; June 25, 2018

Date of Judgment:

September 14, 2018


I.              INTRODUCTION

[1]           On December 31, 2015, Huanghe Guo (the “complainant”) was at a nightclub in Vancouver with his girlfriend.  Shortly after their arrival at the nightclub, the complainant became involved in a confrontation with a group of males.

[2]           The Crown alleges that the confrontation became violent and the complainant was attacked by this group of males.

[3]           On June 28, 2016, an Information was sworn alleging that Christopher William Irwin (“Irwin”), Kennie Jun-Xi Jiang (“Jiang”), Rohan Omar Johnson (“Johnson”), Aman Deep Manj (“Manj”) and Quy Phu Tony Nguyen (“Nguyen”) assaulted the complainant and thereby did cause bodily harm to him contrary to s. 267(b) of the Criminal Code of Canada (the “Code”).

[4]           Manj and Jiang have also been charged in separate counts that in committing the assault of the complainant, they used, or threatened to use, a bottle as a weapon contrary to s. 267(a) of the Code.

[5]           Johnson has also been charged in a separate count that in committing the assault of the complainant that he used, or threatened to use a glass as a weapon contrary to s. 267(a) of the Code.

[6]           Prior to the trial commencing, the Crown directed a Stay of Proceedings (“SOP”) in relation to Nguyen.

[7]           The complainant is unable to identify any of the accused.  The case for the Crown is dependent upon recognition evidence, which includes closed caption television (“CCTV”) seized from the nightclub and recognition evidence to be led from various police officers from their prior interactions with the accused.

[8]           On November 10, 2016, seven days were set to accommodate the trial, commencing on September 26, 2017, and concluding on October 5, 2017.

[9]           Unfortunately, the trial could not complete by October 5, 2017, and had to be adjourned.  The reason for the adjournment was based upon late disclosure in September 2017 of recognition evidence that was over and above the initial disclosure delivered to all of the accused on July 28, 2016.

[10]        The trial is now set to end November 20, 2018.

[11]        On November 20, 2017, counsel for Irwin, Ms. Williams, filed and served Constitutional Notice on the Attorneys General that Irwin would be seeking the remedy of a SOP in relation to his charge arising from delay in completing his trial by invoking of s. 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).

[12]        Irwin’s application proceeded on March 28, 2018.

[13]        On April 19, 2018, in reasons reported at 2018 BCPC 94 (“Irwin”), the Court found that the delay in relation to Irwin was unreasonable and a SOP in relation to his charge was directed.

[14]        On May 4, 2018, counsel for Johnson, Mr. Donaldson, Q.C., filed and served Constitutional Notice that Johnson would now be seeking the remedy of a SOP by invoking of s. 11(b) of the Charter.

[15]        On May 17, 2018, counsel for Jiang, Mr. Muldoon, filed and served Constitutional Notice that Jiang would now be seeking the remedy of a SOP by invoking of s. 11(b) the Charter.

[16]        On May 22, 2018, counsel for Manj, Mr. Fowler, Q.C., filed and served Constitutional Notice that Manj would now be seeking the remedy of a SOP by invoking s. 11(b) of the Charter.

[17]        The applications of Johnson, Jiang and Manj proceeded on June 25, 2018.  The ruling was reserved with a scheduled ruling date of September 14, 2018.

II.            LEGAL FRAMEWORK

(i)            Section 11(b) of the Charter Guarantees:

  Any person charged with an offence has the right

(b)  to be tried within a reasonable time;

[18]        This application is founded upon the Supreme Court of Canada (the “SCC”) decision in R. v. Jordan, 2016 SCC 27 (CanLII) (“Jordan”).  At para. 105, the SCC summarizes the framework applicable to s. 11(b) applications:

                    There is a ceiling beyond which delay becomes presumptively unreasonable.  The presumptive ceiling is 18 months for cases tried in provincial court and 30 months for cases tried in a Superior Court.  Defence delay does not count towards the presumptive ceiling;

                    Once at the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness based on exceptional circumstances;

                    Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable.  To do so the defence must establish two things:

1)            It took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and,

2)            The case took markedly longer than it reasonably should have;

                    For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.

(ii)         Presumptive Ceiling

[19]        In R. v. Singh, 2016 BCCA 427 (CanLII) (“Singh”), at para. 14, the Court of Appeal held that the application of the Jordan framework starts with the calculation of the total time that has gone by from the date of the charge to the actual or anticipated end of the trial.

(iii)         Defence - Waived Delay

[20]        Defence waived delay may be explicit or implicit, but the waiver must be clear and unequivocal.  It is not the right to trial within a reasonable time itself that is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness: Jordan, at para. 61.

(iv)         Defence - Caused Delay

[21]        Delay which is caused solely by the conduct of the defence is “defence-caused delay.”  This includes:

1)            Delay caused by deliberate and calculated defence tactics aimed at causing delay, including frivolous applications and requests: ibid. at para. 63;

2)            Delays in scheduling when the defence is not ready to proceed or available, but the Crown and the Court are available.  If the Crown or the court are not available, the delay will not be attributable to the defence: ibid. at para. 64; and,

3)            Delay caused by other defence actions or conduct as found by the trial judge, but does not include defence actions legitimately taken to respond to the charges, e.g. preparation time, applications and requests that are not frivolous: ibid. at para. 65.

(v)         Exceptional Circumstances

[22]        If, after subtracting the defence waived delay and defence-caused delay from the overall delay, the remaining delay is above the presumptive ceiling, the delay is presumptively unreasonable and the burden shifts to the Crown to justify the delay as having been due to exceptional circumstances.

[23]        In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable.  Circumstances do not need to be rare or entirely uncommon: ibid. at para. 69.

[24]        There are two broad categories of exceptional circumstances:

1)            Discrete and exceptional events including medical or family emergencies, or exceptional events that arise at trial such as a complainant’s unexpected recantation or international issues such as extradition: ibid. at paras. 71 - 73; and

2)            Particularly complex cases: ibid. at para. 77.

[25]        If the Crown meets the exceptional circumstance threshold, it must also demonstrate that it could not reasonably remedy or prevent the delays resulting from those circumstances: ibid. at para. 70.

(vi)         Defence Onus

[26]        If the calculation of the delay falls below the presumptive ceiling, the defence has the burden of demonstrating that it is unreasonable.  To do so, the defence must show that it took meaningful steps to expedite the proceedings, and that the case took markedly longer than it reasonably should have.  In discharging its onus the defence is only required to act reasonably, not perfectly: ibid. at paras. 85 and 99.

III.           CHRONOLOGY OF THE CASE

[27]        Counsel for the three applicants largely accepted the written chronology of the relevant events, including court recording reference points, contained in the Crown’s Book of Documents.

[28]        I have reproduced the chronology with some minor edits:

Timeline of Relevant Events

Date

Description

2015.12.31

Date of alleged offence.

2016.06.28

Information sworn, warrants issue for all accused.

2016.06.29

All accused are arrested and granted judicial interim release.

2016.07.28

Report to Crown Counsel version 1 (“RCC v1”) disclosed to all accused. RCC v1 includes the video from the Playhouse Nightclub and statements from 7 police officers attesting to their ability to recognize one or more of the accused in the surveillance video.  Statements from PCs Charles, Jaswal, Ng, and van Eerd summarize their recognition of and past contacts with Mr. Jiang, and statements from PCs Jaswal and Steele summarize their recognition of and past contacts with Mr. Manj.

2016.08.17

Appearance in courtroom 307.  The matter is adjourned for trial Crown to be assigned.

2016.09.15

Ms. Tomasson sends an email to counsel indicating that she will be the trial Crown and setting out that it is her understanding that resolution has been canvassed and the matter is for trial.  Ms. Tomasson estimates 12 days would be required for the Crown case, including 9 civilian and 12 police witnesses, and a 4 day voir dire for the recognition evidence.  Ms. Tomasson indicates she is seeking admissions relating to Mr. Guo’s injuries, and the admissibility of the video from the nightclub.  The Crown is prepared to arraign the file from this date.

2016.09.21

Appearance in courtroom 307.  The matter is adjourned for a pre-trial conference, as the Crown time estimate for trial exceeds 7 days.

2016.09.27

Pre-trial conference #1 in chambers before Judge Galati.  For the first time, some counsel advise that resolution may be possible.  Counsel also ask to meet in the Crown’s office to review the newly-arrived circle video.  The pre-trial conference is adjourned at defence counsels’ request for those purposes.  A date is set to review the video, but all counsel do not attend.

2016.10.12

Pre-trial conference #2 in chambers before Judge Galati.  There are ongoing resolution discussions involving three of the accuseds, and so the pre-trial conference is adjourned again.

2016.10.24

Pre-trial conference #3 in chambers before Judge Galati.  The Crown expresses concern about the lack of admissions.  Given that all counsel had sent agents, and were not personally present to explain the lack of admissions, Galati J. orders that all counsel attend for another pre-trial conference.

2016.11.07

Pre-trial conference #4 in chambers before Judge Galati.  All counsel are present, prepared to proceed to trial, save Mr. Johnson who indicates he intends to plead guilty.  Counsel proceeding to trial indicate that the requested admissions can be made.  With the combination of the admissions, Mr. Johnson indicating he will not be going to trial, and assurances from all counsel that there are no other issues, the time estimate is reduced from 12 days to 8.  The matter is adjourned to November 10, 2016, for formal arraignment.

2016.11.10

The matter is arraigned.  All counsel attend the JCM office.  The first trial date offered by the court is September 11, 2017.  This date was available to all, except for Mr. Nathanson, counsel for Mr. Nguyen.  The trial is scheduled for September 25, 26, 28, and 29; and October 2-5, 2017.

2016.11.16

Mr. Johnson enters a guilty plea.

2017.01.08

Mr. Johnson withdraws his guilty plea and is adjourned to the trial date.

2017.09.06

Mr. Myhre advises the defence that he is now the assigned trial Crown, and that will-says would be provided as witnesses are interviewed in the coming weeks.  Mr. Myhre gives a general schedule for the categories of witnesses, including “any officer who gives recognition evidence”, but declines to provide a final list until witnesses have been interviewed.

2017.09.14

Mr. Nathanson gives Charter notice seeking to exclude evidence that Mr. Nguyen was detained by police outside the Playhouse Nightclub.

2017.09.15 and 2017.09.19

Mr. Myhre provides his interview notes from the intended trial witnesses, including PCs Charles, Steele and van Eerd on September 15, PC Ng on September 18, and Det. Jaswal on September 19.

2017.09.18

Mr. Muldoon gives Charter notice seeking to exclude evidence that Mr. Jiang was detained by police outside the Playhouse Nightclub.

Mr. Myhre provides counsel with a tentative witness schedule.

2017.09.20

Mr. Myhre advises all counsel that he is in agreement with the Charter applications filed by Mr. Nathanson and Mr. Muldoon and will not be calling evidence related to the detention of their clients outside the Playhouse Nightclub.  Mr. Myhre further advises there will be a SOP in relation to Mr. Nguyen.  Mr. Myhre provides an updated witness schedule.

2017.09.21

Mr. Donaldson advises that Mr. Johnson admits identity.

Mr. Fowler gives notice seeking to exclude the recognition evidence pertaining to Mr. Manj under s. 24(2) of the Charter, and makes an accompanying request for disclosure of any notes of all past interactions between Det. Jaswal and Mr. Manj.

Mr. Myhre emails Det. Jaswal with the disclosure request.  Det. Jaswal responds the same day.

2017.09.24

Mr. Myhre provides Mr. Fowler the requested disclosure relating to Det. Jaswal.

Ms. Williams requests further disclosure related to a traffic stop on Mr. Irwin in which PC van Eerd was involved.

2017.09.25

Trial commences.  Prior to the start of trial, Mr. Muldoon advises Mr. Myhre he is seeking similar disclosure to that requested by Mr. Fowler and Ms. Williams, i.e. notes and statements related to all prior contacts between the recognition witnesses and Mr. Jiang.

At the beginning of the day, Mr. Myhre provides the Court and counsel with a witness schedule, alerts the Court to the recent Charter applications and solicits defence counsel’s input on accommodating the applications (4.38-42).  Mr. Fowler advises he is content to stick with the suggested schedule for PCs Steele and Jaswal (4.43-5.21).  Ms. Williams advises she cannot proceed with PC van Eerd’s evidence until she receives the requested disclosure (5.40-6.12).  Mr. Muldoon advises he has made a similar request for disclosure in relation to PCs van Eerd and Ng and anticipates making a similar Charter application to Mr. Fowler (6.14-21).

At the end of the day, Mr. Myhre seeks direction and comment on the schedule going forward in light of the recent Charter applications (89.18-28).  Ms. Williams advises she will not be in a position to say until she receives the additional disclosure related to PC van Eerd (89.29-28).  Mr. Muldoon advises he is in the same position as Ms. Williams (89.39-46).  Mr. Fowler indicates that it may make the most sense to have PC Steele’s evidence heard at the same time as Det. Jaswal’s because similar issues arise (90.14-21).

Mr. Fowler verbally requests disclosure of any notes related to PC Steele’s 2009 arrest of Mr. Manj.  Mr. Myhre emails PC Steele with the disclosure request.

Mr. Myhre forwards Ms. Williams’ disclosure request to PC van Eerd.  PC van Eerd responds to the request the same day.

Via email, Mr. Myhre seeks and Mr. Muldoon provides clarification as to exactly what disclosure he is seeking.  Mr. Myhre forwards the requests to the officers the same evening and provides Mr. Muldoon with an expected timeline for providing the disclosure.

2017.09.26

Trial continues.  Mr. Myhre sends email to all counsel providing the expected timeline for disclosure and suggesting options for moving forward with the trial.

Mr. Myhre advises the Court of recent disclosure requests, suggests there is some onus on defence counsel to make concrete suggestions on how to get on with the case, and states he is concerned about getting delayed and then having to adjourn a year in the future (49.31-50.26).  Mr. Fowler advises the Court of the nature of his Charter application and the basis for his disclosure requests, arguing that the Crown ought to have provided this disclosure in the first place (50.36-52.5).  Ms. Williams advises that her client will be raising similar Charter issues to Mr. Fowler’s client, related to a bar watch check, a motor vehicle stop and curfew checks, but requires disclosure before any argument can be finalized (52.7-52.34).  Mr. Myhre reiterates his concern is to find a way forward with the trial (52.36-43).  Mr. Muldoon advises he is in a similar boat to Ms. Williams (52.46-53.13).  Mr. Fowler suggests starting the recognition voir dire on Monday (October 2) (53.14-29).  The Court proposes cancelling the Thursday and Friday dates (September 28, 29) to ensure disclosure is made.  Mr. Myhre indicates it isn’t possible to get the disclosure requested by Monday based on the timeline he has already provided to counsel for the requested disclosure (54.10-32).  Mr. Myhre then put forward the two proposals canvased in his email that morning for using the court time already set aside: a Vukelich hearing on September 28, and/or hearing from recognition witnesses on the understanding they could be recalled if new disclosure raised Charter issues.  Mr. Myhre also advises that while it’s possible disclosure in relation to other officers will be provided by Monday, PC Ng would be unable to complete his disclosure request until mid-October (54.33-56.46).  Mr. Fowler advises that while he could argue Vukelich on Thursday, he doubts whether Ms. Williams and Mr. Muldoon could, given the outstanding disclosure.  Ms. Williams and Mr. Muldoon concur (57.14-58.24).  The Court then cancels the Thursday, Friday and Monday dates, and expresses hope there will be enough disclosure to allow for a Vukelich hearing on Tuesday (58.25-59.12).

2017.09.27

Mr. Myhre sends Mr. Fowler the requested disclosure re PC Steele, and indicates his understanding that all requested disclosure has now been provided.

2017.09.28

Mr. Myhre sends Mr. Muldoon the requested disclosure re PCs Charles and van Eerd, asks Mr. Muldoon to advise if he believes there is anything else outstanding from them.

Mr. Myhre sends Ms. Williams the disclosure provided by PC van Eerd.  Ms. Williams advises that she believes more disclosure is required, including radio communication relating to the traffic stop.  Mr. Myhre passes this disclosure request on to PC van Eerd.

2017.10.02

Mr. Myhre provides Ms. Williams with a statement from PC van Eerd regarding the traffic stop of Mr. Irwin and advises that the timeline for the disclosure of radio communications is uncertain.

Mr. Myhre writes to all counsel advising he will be moving ahead with the complainant’s evidence and seeking severance of Mr. Johnson.  Mr. Myhre requests formal Charter notice from Mr. Muldoon and Ms. Williams, and invites suggestions for moving the trial forward.

Ms. Williams gives formal notice seeking to exclude the evidence of Det. Jaswal and PC van Eerd relating to their recognition of Mr. Irwin under s. 24(2) of the Charter.

Det. Jaswal (who was out of the country between September 25 and October 1), provides disclosure of notes of all prior contacts with Mr. Irwin and Mr. Jiang.

2017.10.03

Mr. Myhre sends Mr. Muldoon and Ms. Williams the requested disclosure re Det. Jaswal.

Trial continues with one civilian witness, Mr. Guo.  Off the record, counsel discuss how to move forward.  Mr. Fowler, Mr. Muldoon and Ms. Williams are not prepared to hear from any recognition witnesses until Mr. Muldoon and Ms. Williams determine what Charter applications they will be bringing, and they feel they cannot do that until all requested disclosure has been received.  Accordingly, on the record all counsel agree that October 4 will be used for the Crown’s application to sever Mr. Johnson, and October 5 will be used for the Crown’s Vukelich application (48.32-50.16).

2017.10.04

Crown applies to sever Mr. Johnson.  The application is opposed by all counsel, and denied.  Mr. Myhre articulates that the Crown is seeking to sever Mr. Johnson so that Mr. Johnson doesn’t get dragged along with the other three co-accused who are contesting identity and bringing Charter applications (1.44-2.6), and because of the additional delay Mr. Donaldson’s schedule would impose on the other three co-accused (3.40-3.46).

Mr. Donaldson opposes the application, stating that the Crown has other options for proceeding separately against Mr. Johnson (9.41-46), and because severance would require a mistrial against one of the severed parties, with the potential that Mr. Johnson could then compel any of the others to testify (8.37-9.9).  Mr. Fowler opposes the application, citing lack of statutory authority to have multiple severed proceedings going ahead before the same judge (11.40-14.2).  Ms. Williams opposes the application, citing R. v. Al-Rashta, [2011] O.J. 424 at paras. 40-41 for the proposition that “the interests of justice in having the trial proceed together was far greater than the 11(b) rights of the accused” (15.1-15.24).  Mr. Muldoon opposes the application, stating that he doesn’t really have anything in substance to add to his colleagues’ submissions, but expressing his concern about a potential cutthroat defence, as well as the outstanding disclosure preventing a proper assessment of the potential prejudice (15.29-15.40).  Mr. Myhre concedes he does not have a response to the jurisdictional argument (17.47-18.1).

The Court dismisses the application based on the applicable factors in R. v. Last, 2009 SCC 45, primarily because of the danger of cross-pollination should Mr. Johnson decide to call evidence implicating the other accused (Reasons for Judgment, October 4, 2017, para. 5).

2017.10.05

Crown Vukelich application seeking to summarily dismiss the applications of Irwin, Manj and Jiang, seeking to exclude evidence of the recognition witnesses.  The Court dismisses the Crown’s application.

The Court stands down to allow counsel to discuss how to proceed in light of the outstanding disclosure requested by Mr. Muldoon and Ms. Williams (25.1-25.45).  Off the record, Mr. Fowler, Ms. Williams and Mr. Muldoon agree that they do not wish to proceed with any of the recognition witnesses until Crown has provided all of the requested disclosure.  On the record, counsel discuss time requirements and agree to adjourn to November 1, and in the meantime coordinate with the case managers to set aside 5 days for the Charter applications and recognition evidence (26.3-30.16).

The Crown agrees to the removal of the curfew condition for Mr. Johnson, Mr. Jiang and Mr. Manj (1.26-29; 28.30-29.8).

Counsel are unable to set dates for the voir dire at the case manager’s office as not all counsel had their 2018 availability.  Crown sends email confirming that dates had been offered in November and December 2017, but were declined because either or both counsel for Mr. Manj and Mr. Jiang were unavailable.

Mr. Myhre sends Mr. Donaldson an email proposing a manner of proceeding that would not tie him to the other three accused and their Charter voir dire.  There is further discussion in the ensuing weeks between Mr. Myhre and Mr. Donaldson about potential resolution, but Mr. Donaldson does not provide either an affirmative or negative response to Mr. Myhre’s proposal.

2017.10.05-2017.10.11

Email communications between the Judicial Case Manager and counsel in order to schedule five days for the recognition evidence voir dire.

2017.10.17-2017.10.19

Mr. Myhre sends email proposing that the recognition evidence for each accused be heard separately, so that the voir dire does not have to simultaneously accommodate Ms. Williams’, Mr. Fowler’s and Mr. Muldoon’s schedules.  The proposal is rejected by all counsel.

2017.10.23

The dates for the voir dire are scheduled: May 23, 24, and 25, and June 25 and 26, 2018.  Earlier dates were offered in November, December, January, February and May which were available to the court.  Co-accused counsel and/or Crown Counsel were not available for those dates.

2017.11.01

Dates are set for the recognition witness voir dire and Charter applications.  Mr. Johnson is excused from the voir dire (2.25).  Counsel agree that dates for closing submissions can be arranged via email (2.30-3.5).

2017.11.01-2018.01.17

Email communications between counsel regarding time required, and dates available, for closing argument.

2017.11.20

Mr. Irwin gives s. 11(b) notice.

2018.01.02

Mr. Myhre applies to court for direction on setting dates for closing argument.  Court directs counsel to appear or provide dates and adjourns Crown application to January 10.

2018.01.10

Mr. Myhre renews application for direction on setting dates for closing argument.  Court adjourns Crown application to January 26.

2018.01.17

Mr. Donaldson provides his available dates.

2018.01.26

Continuation date for closing arguments set for November 19-20, 2018.

2018.03.07

Mr. Myhre sends Mr. Muldoon the requested disclosure re PC Ng.

2018.03.28

Mr. Irwin’s s. 11(b) application.

2018.04.18

The Court grants Mr. Irwin’s s. 11(b) application and stays the charge against him.

2018.05.04

Mr. Johnson gives s. 11(b) notice.

2018.05.17

Mr. Jiang gives s. 11(b) notice.

2018.05.22

Mr. Manj gives s. 11(b) notice.

2018.05.23-2018.05.25

Combined recognition evidence / Charter voir dire relating to Mr. Jiang and Mr. Manj, with testimony from PCs Jaswal, Steele, Ng and Charles.

On May 24, 2018, Mr. Donaldson attends and off the record all counsel canvas possible dates for a joint s. 11(b) hearing.  It is determined that there is no date on which all counsel are available, prior to November 19, 2018.  Counsel decide, and the Court approves, on setting the s. 11(b) applications for Mr. Manj and Mr. Jiang for the already-set June 25-26, 2018, dates.  Mr. Donaldson is content that Mr. Johnson’s application be heard at a later, for now unspecified, time.

Formal Charter notice provided by Mr. Muldoon the morning of May 25, 2018, seeking to exclude the recognition evidence of Det. Jaswal.

At the conclusion of the voir dire on May 25, 2018, Mr. Fowler states that Mr. Manj is not pursuing the previously-filed Charter application, and is not contesting the admissibility of the recognition evidence.

Mr. Jiang’s Charter application is argued and dismissed.  After the Court rules admissible the recognition evidence of PC Ng, Mr. Jiang concedes the admissibility of the recognition evidence of PCs Jaswal and Charles.

2018.06.25-2018.06.26

Date scheduled for Mr. Jiang and Mr. Manj’s s. 11(b) applications.

2018.11.20

Prospective end of the trial.

IV.         POSITION OF THE PARTIES

(i)            Jiang

[29]        Jiang’s counsel submits that the total delay is 28 months and 23 days from the date of the swearing of the Information until the prospective end of the trial on November 20, 2018.  This delay far exceeds the Jordan guidelines and, therefore, a SOP is appropriate remedy.

[30]        His other written and oral submissions can be summarized as follows:

                    That the primary cause of the inability to complete the trial within the Jordan guidelines is the late disclosure in September 2017 of police interactions with Jiang that did not form part of the original disclosure package.  The late disclosure was only communicated to counsel less than two weeks prior to the commencement of the trial;

                    That to date there remains outstanding disclosure in relation to a motor vehicle stop involving Jiang and the police on April 20, 2017;

                    That the Crown and the police are one and the same with respect to their obligations to provide disclosure;

                    That the Crown cannot justify a failure to disclose relevant material on the basis that the police failed to disclose that disclosure to the Crown in a timely way;

                    That similar to the position of Ms. Williams on behalf of Irwin, it would have been a “fruitless exercise” to cross-examine police witnesses who provided the late disclosure without having the reports and/or notes which underlie their interactions with Jiang;

                    That as early as July 26, 2016, counsel requested disclosure.  The request for disclosure is a continuing responsibility of the police and the Crown.  It is the failure of the police and the Crown to satisfy this ongoing obligation which has led to the further delay of this trial;

                    That the failure to disclose the particulars of the recognition evidence in a timely manner has prejudiced counsel’s ability to properly prepare for the trial, make full answer and defence and to challenge the evidence through cross-examination in any meaningful way;

                    That Jiang has neither explicitly nor implicitly waived delay;

                    That the case overall is relatively simple and it cannot be said that the presence of multiple counsel added to the complexity of the trial, though there were clearly scheduling challenges as a result of the presence of multiple counsel;

                    That there are no exceptional circumstances that would justify the delay; and

                    That the transitional exceptions set out in the Jordan framework does not apply to Jiang.

(ii)         Manj

[31]        Manj’s counsel submits that the total delay amounts to 28 months and 24 days which far exceeds the Jordan guidelines and, therefore, a SOP is the appropriate remedy.

[32]        His other written and oral submissions can be summarized as follows:

                    That in the initial disclosure package on July 28, 2016, Cst. Jaswal disclosed that on three occasions he “saw” a person he identified as Manj;

                    That when Cst. Jaswal was interviewed by the Crown on September 19, 2017, he described interacting with Manj on six occasions;

                    That in the initial disclosure package on July 28, 2016, Cst. Steele disclosed that he had one interaction with Manj in 2009 in which he could provide no detailed description of Manj;

                    That when Cst. Steele was interviewed by the Crown on September 15, 2017, he added detail to his description of Manj, including why he believes it is him in the CCTV video seized from the nightclub.  Further, that he has seen Manj on two other occasions in the community, and interacted with him on at least two occasions;

                    That further disclosure was requested on September 21, 2017, along with Charter Notice that Manj would be seeking to exclude the recognition evidence pursuant to s. 24(2) of the Charter;

                    That it must be remembered that the original four accused were tried together as joint perpetrators.  Therefore, the recognition evidence could legally impact the case against each co-perpetrator;

                    That the admissibility of the recognition evidence would depend upon the Crown establishing the factual foundation for the recognition evidence;

                    That timely disclosure of all of the recognition evidence was necessary;

                    That the “trigger” for the Charter challenge to the admissibility of the recognition evidence was the untimely disclosure of new recognition information received by the Crown from its interviews with Cst. Steele and Cst. Jaswal;

                    That the trial commenced on September 25, 2017, but was unable to complete within the scheduled time frame as a result of the late disclosure as it became apparent to counsel that the recognition evidence was “considerably stronger” than described in the initial disclosure package;

                    That after the voir dire and trial were adjourned on October 5, 2017, to fix new dates for continuations that there were inherent difficulties in fixing continuation dates that would fit the calendars of five counsel as well as the court;

                    That Manj has not caused any delay and nor has he implicitly or explicitly waived delay;

                    That there are no exceptional circumstances that would apply to this case; and

                    That the original trial dates took this case to approximately 15 months which would push up against the Jordan deadline.  With that in mind, the Crown would have appreciated that any adjournment would inevitably mean that the trial would not complete within the 18 months set out in Jordan; and

                    That it was incumbent on the Crown to prepare its case well in advance of the September 2017 trial dates.  It was obvious that any late disclosure could risk the trial completing well after the Jordan 18 month deadline.

(iii)         Johnson

[33]        Johnson’s counsel submits that the total delay amounts to 28 months and 23 days which far exceeds the Jordan guidelines and, therefore, a SOP is the appropriate remedy.

[34]        His other written and oral submissions can be summarized as follows:

                    That the Jordan presumptive ceiling of 18 months was reached on December 26, 2017;

                    That this Court ought to follow its reasoning in Irwin released April 19, 2018, to justify the entry of a SOP;

                    That the delay was fully attributable to the late disclosure by the Crown of recognition evidence;

                    That the late disclosure directly impacted the completion of the voir dire Charter challenges to the recognition evidence, which resulted in a failure to complete the previously scheduled trial on October 5, 2017, through no fault of Johnson;

                    That Johnson has admitted identification and was excused from the voir dire in relation to the challenged recognition evidence.  The Crown applied to sever Johnson on October 5, 2017, which application was denied;

                    That the continuation dates for the voir dire in the Spring of 2918 fell outside of the control of Johnson and, therefore, any delay that may be attributed to Johnson’s co-accused ought not to be deducted as defence delay against Johnson; and

                    That none of the delay can be characterized as “defence delay” as defined in Jordan.  Nor do any of the events qualify as “exceptional circumstances” that lie outside the control of the Crown.

[35]        Counsel for the applicants made reference to numerous authorities in their written and oral submissions.  Where appropriate, reference will be made to those authorities in this ruling in the analysis of the Jordan framework.

(iv)         Crown

[36]        The Crown submits that this is not an appropriate case for a SOP.

[37]        The Crown accepts that the vast majority of the delay in setting the original trial dates falls at the feet of the Crown, but it submits that actions by the applicants caused significant periods of delay which should be deducted from the overall delay, namely, the pre-arraignment adjournments of pretrial conferences and the adjournment of the original trial date on October 5, 2017.

[38]        The Crown’s other written and oral submissions can be summarized as follows:

                    That the arraignment timeline demonstrates that it took four and a half months to arraign the file;

                    That it is clear from the chronology, the Crown was in a position to arraign the file as early as September 15, 2016, and accomplish final arraignment as of the first pretrial conference conducted on September 27, 2016;

                    That a total of four pretrial conferences were conducted until arraignment on November 10, 2016;

                    That the defence should bear responsibility for the majority of the delay in this timeframe as the pretrial conferences unnecessarily delayed the arraignment of the file;

                    That the time period from October 5, 2017, to November 20, 2018, should be categorized as defence delay because it was caused by the late disclosure requests by the applicants;

                    That the applicants were in a position to make their disclosure requests very early on in the process rather than waiting until the last moment;

                    That a core issue in this trial is identification, which was explicitly identified by the Crown in email correspondence dated September 15, 2016, in which the Crown proposed that there be a four-day voir dire to determine the admissibility of the recognition evidence;

                    That the initial disclosure package revealed that various police officers had had contacts with both Jiang and Manj at various times and locations;

                    That counsel for Jiang and counsel for Manj never raised any issue regarding outstanding disclosure concerns or raised any potential for Charter applications in relation to the recognition evidence at any of the pretrial conferences;

                    That the Charter applications seeking exclusion of the recognition evidence are novel applications that do not seem to find support in any reported cases;

                    That it cannot be suggested that the Crown or the police have an obligation to be alert to the potential relevance of recognition evidence being subject to Charter scrutiny;

                    That the disclosure requests by the applicants and their subsequent filing of Charter Notices on the eve of the trial are late by any definition;

                    That despite the late nature of the disclosure requests, the Crown and the police responded in quick order, and in good faith, to fulfill the majority of the disclosure requests;

                    That the only reason the trial was adjourned on October 5, 2017, was because the Crown was unable to fulfill all of the disclosure requests to the satisfaction of the applicants;

                    That notably, despite multiple requests from the Crown, no plan was advanced by any of the applicants to accommodate the Charter applications within the time set for trial;

                    That there were further defence-caused delays in securing continuation dates for the voir dire and trial due largely to the busy calendars of counsel for the applicants;

                    That the chronology timeline clearly establishes that the Crown worked proactively, promptly and cooperatively to fulfill all disclosure requests and accommodate Charter applications in an effort to mitigate the delays; and

                    That a direction of a SOP would allow the applicants to benefit from their own delay causing conduct.

[39]        The Crown made reference to various authorities in its written and oral submissions.  Where appropriate, reference will be made to those authorities in this ruling in the analysis of the Jordan framework.

V.           ANALYSIS

(i)            Calculation of Overall Delay

[40]        The Information was sworn on June 28, 2016.  The trial is set to end November 20, 2018.

[41]        Based on those dates, I calculate the total delay at 28 months and 23 days.

[42]        The Jordan presumptive ceiling of 18 months was reached on December 26, 2017.

(ii)         Calculation of Waived Delay by Jiang

[43]        The waiver may be explicit or implicit, but the waiver must be clear and unequivocal.  A review of the evidence, including the chronology timeline, does not establish that Jiang waived a delay of proceedings.

[44]        I do not find that Jiang waived any delay in this case.

(iii)         Calculation of Delay Caused by Jiang

[45]        There were a total of four pretrial conferences conducted in this case.

[46]        On October 24, 2016, the third pretrial conference took place in Chambers.  Counsel for the applicants were represented by agents.  It would appear from the chronology timeline that little was achieved at that pretrial conference and the pretrial conference was adjourned for continuation to November 7, 2016, at which time all counsel were present.

[47]        The case was arraigned on November 10, 2016.

[48]        But for the third pretrial conference, the other three pretrial conferences all demonstrated proactive steps were being taken by all involved to arraign the case.

[49]        I find that Jiang is responsible for the delay between October 24, 2016, and November 7, 2016, which amounts to 15 days.

[50]        In Irwin, at paras. 47 and 48 the court sets out the duties and obligations of the police and of the Crown.  In particular, the duties and obligations of the police and the Crown to provide ongoing and timely disclosure of evidence relating to a criminal case can be fundamentally important to an accused’s ability to make full answer and defence.

[51]        Depending on the nature of the disclosure, the failure to disclose in a timely manner will weigh heavily against the Crown.

[52]        In Irwin, the court found the nature of the recognition evidence sought to be adduced by the Crown “fundamentally changed” when it was disclosed to Irwin’s counsel, Ms. Williams, on September 15, 2017: para. 45 & 46.

[53]        While not to the same scope and extent as found in Irwin, there was late disclosure of recognition evidence as it relates to Jiang.  Once the late disclosure was made, counsel for Jiang, Mr. Muldoon, was obliged to act promptly to ensure he had full and informed disclosure to make full answer and defence.  Irwin, at paras. 49 & 50, is apposite to Jiang’s position.

[54]        That being said, there is a significant factor that distinguishes this case from Irwin.

[55]        As early as October 5, 2017, Ms. Williams expressed on the record in the presence of all counsel that she was very concerned over the pending Jordan timeline: Transcript, October 5, 2017, at p. 31, ll. 17 - 24.

[56]        On November 20, 2017, Ms. Williams filed her s. 11(b) Charter Notice.  While it is likely that counsel for the remaining applicants were apprised of that circumstance, they most certainly would have been put on notice on December 22, 2017, when Ms. Williams sent an email out to all counsel indicating her reluctance to provide available trial continuation dates as she anticipated that she would be successful on her delay argument.

[57]        It was only after the delivery of Irwin on April 19, 2018, that the remaining applicants decided to pursue the s. 11(b) argument.

[58]        Jiang filed his s. 11(b) Charter Notice on May 17, 2018, some 142 days after the Jordan deadline was reached on December 26, 2017.

[59]        Jiang’s other Charter arguments relating to the admissibility of the recognition evidence were heard and dismissed on May 25, 2018.

[60]        The Crown, Mr. Muldoon, and Mr. Fowler agreed that the s. 11(b) arguments could proceed on the already scheduled dates of June 25 and 26, 2018.  Mr. Donaldson was not available on the June dates to advance his client’s s. 11(b) argument and was content to schedule his application at a later date.

[61]        On June 25, 2018, Mr. Muldoon and Mr. Fowler advanced their respective s. 11(b) arguments.  Unexpectedly, Mr. Sweeney, articled student and agent for Mr. Donaldson, appeared with Johnson and advanced Johnson’s s. 11(b) argument.

[62]        The Court reserved until September 14, 2018.

[63]        I find it troubling that Jiang waited 142 days after the Jordan deadline was reached to file his s. 11(b) Charter Notice.  I am also concerned that Jiang filed his Charter Notice 28 days after the ruling in Irwin was delivered.

[64]        I also find it troubling that Jiang did not join with Irwin in advancing the s. 11(b) Charter arguments.  This would have resulted in a more efficient use of court time and would have avoided the court having to write a ruling separate from Irwin in which the factual context and legal issues were either similar or the same.

[65]        Defence strategy amounting to a “wait and see” attitude when s. 11(b) is being invoked should not be encouraged.  Such a strategy generally does not advance the interests of justice.

[66]        The SCC in R. v. Cody, 2017 SCC 31, at para. 31 noted in part, “[i]rrespective of its merit, a defence action may be deemed not legitimate in the context of an s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.”

[67]        Where there has been marked inefficiency or marked indifference toward delay that adversely impacts the progress of a case, then the delay can be assessed as defence-caused delay: R. v. Gopie, 2017 ONCA 728, at paras. 156 & 157.

[68]        I find that Jiang’s delay in bringing his s. 11(b) Charter Notice forward amounted to conduct that was inconsistent with a desire for an expeditious trial.

[69]        Accordingly, I assess the 142 days from the date the Jordan deadline was reached until the date Jiang filed his s. 11(b) Charter Notice as defence-caused delay.

[70]        There were obviously other significant delays from the date the trial was adjourned on October 5, 2017, until the prospective end of the trial scheduled for November 20, 2018.

[71]        In relation to Jiang, I find that those delays in large measure amounted to scheduling delays originating from other counsels’ availability.

[72]        In cases where there are multiple jointly-charged accused with multiple counsel, when one of the accused causes delay as result of counsel’s scheduling availability, then that delay should not be attributable to each of the accused as defence-caused delay.  Calculation of defence-caused delay must be assessed on an individual basis: R. v. Ny, 2016 ONSC 8031, at paras. 37 & 38, applied in Gopie, ibid. at para. 134.

[73]        I find that Jiang is responsible for defence-caused delay of 5 months and 7 days.  When deducted from the overall delay of 28 months and 23 days, that leaves a net delay of 23 months and 16 days, which is well above the Jordan presumptive ceiling of 18 months.

(iv)         Calculation of Waived Delay by Manj

[74]        A review of the evidence, including the chronology timeline, does not establish that Manj waived a delay of proceedings.

[75]        I do not find that Manj waived any delay in this case.

(v)         Calculation of Delay Caused by Manj

[76]        The reasons for and the calculation of delay caused by Jiang in relation to the pretrial conferences leading up to the arraignment of this case apply equally to Manj.

[77]        I find that Manj is responsible for the delay between October 24, 2016, and November 7, 2016, which amounts to a total of 15 days.

[78]        I adopt my reasons relating to Jiang at paras. 45 - 53 as apposite to Manj.

[79]        Manj filed his s. 11(b) Charter Notice on May 22, 2018, some 147 days after the Jordan deadline was reached on December 26, 2017.

[80]        Manj abandoned his Charter attack on the admissibility of the recognition evidence at the conclusion of the previously scheduled voir dire on May 25, 2018.  No reasons were given as to why Manj elected to abandon his Charter application.

[81]        Manj advanced his s. 11(b) argument on June 25, 2018.

[82]        The Court reserved until September 14, 2018.

[83]        As with Jiang, I find it troubling that Manj waited 147 days after the Jordan deadline was reached to file his s. 11(b) Charter Notice.  I am also concerned that Manj filed his Charter Notice 33 days after the ruling in Irwin was delivered.

[84]        I also find it troubling that Manj did not join with Irwin in advancing the s. 11(b) Charter arguments.  I adopt my reasons at paras. 65-67 relating to Jiang as apposite to Manj.

[85]        I find that Manj’s delay in bringing his s. 11(b) Charter Notice forward amounted to conduct that was inconsistent with a desire for an expeditious trial.

[86]        Accordingly, I assess the 147 days from the date the Jordan deadline was reached until the date Manj filed his s. 11(b) Charter Notice as defence-caused delay.

[87]        Notwithstanding Mr. Fowler’s “notoriously” busy schedule [Irwin, at para. 64], I am not prepared to find that it was his unavailability that protracted the length of this trial.

[88]        I find that Manj is responsible for defence-caused delay of 5 months and 12 days.  When deducted from the overall delay of 28 months and 23 days, that leaves a net delay of 23 months and 21 days, which is well above the Jordan presumptive ceiling of 18 months.

(vi)         Calculation of Waived Delay by Johnson

[89]        From the outset of this trial, Johnson has not challenged the admissibility of the recognition evidence.  Indeed, Johnson has admitted identification.  The issue advanced by Johnson is whether or not his actions recorded on the CCTV footage seized from the nightclub establishes beyond a reasonable doubt that he is guilty of any offences.

[90]        After the trial was adjourned on October 5, 2017, Johnson was excused from the voir dire Charter challenge respecting the admissibility of the recognition evidence that was ultimately re-scheduled to complete on June 26, 2018.

[91]        It was also after the trial was adjourned on October 5, 2017, that it took approximately 3.5 months to secure dates for the continuation of the voir dire and the ultimate continuation of the trial, due largely to calendar scheduling conflicts for counsel for the applicants.

[92]        On January 17, 2018, Mr. Donaldson’s legal assistant sent an email to all counsel in which it states, “Mr. Donaldson is available 13 to 20 November.”  On January 26, 2018, continuation dates to conclude the trial were set for November 19 - 20, 2018, to accommodate Mr. Donaldson’s schedule.

[93]        I find that Johnson only became energized to advance his Charter delay argument after Irwin was delivered on April 18, 2018. Johnson filed his s. 11(b) Charter Notice 16 days later.  I adopt my comments at paras. 65 - 67 of this ruling as apposite to Johnson.

[94]        Prior to the ruling in Irwin, there was nothing in the conduct by Johnson that establishes that there was a pressing desire to have an expeditious trial.

[95]        I find that Johnson implicitly waived his Charter right to be tried within a reasonable time and therefore his application for a SOP is dismissed.

(vii)      Exceptional Circumstances

[96]        I have found that Jiang and Manj have not waived any delay.  The defence-caused delay by both applicants places the overall delay significantly above the Jordan ceiling of 18 months.  Accordingly, it must be determined if the Crown has proven that there are exceptional circumstances justifying the delay in this case.

[97]        It is difficult to separate what occurred in Irwin from the applications brought by Jiang and Manj.

[98]        It is the failure to disclose in a timely way recognition evidence that ultimately led to the adjournment of this trial on October 5, 2017.  Where there is late disclosure on the eve of a trial of potentially important evidence, it does call out for an explanation from the Crown: R. v. Edan, 2016 ONCJ 493, at paras. 38 - 40.

[99]        The only explanation that would account for the late disclosure would appear to be that the Crown on this trial was assigned the file on September 6, 2017.  No explanation has been advanced to account for the re-assignment of Crown counsel at such a late date.

[100]     After the Crown assumed the conduct of this trial in September it acted promptly in interviewing witnesses and providing “will say” particulars to defence counsel.  However, as noted in Irwin, the additional disclosure fundamentally changed the legal landscape, ending up with the adjournment of the trial on October 5, 2017.

[101]     The delay following the adjournment of this case on October 5, 2017 was avoidable.  The Crown had 15 months from the date that charges were laid until September 6, 2017 to interview witnesses and to forward ongoing disclosure of the recognition evidence to defence counsel, as required by the SCC in R. v. McNeil, 2009 SCC 3, at para. 14.

[102]     I am not satisfied that the Crown has proven an exceptional circumstance as defined in Jordan that would justify the delay.

(viii)      Extraordinary Events

[103]     I do not find that the Crown has proven that there are any extraordinary events that justify the delay in this case.

(ix)         Transitional Exceptional Circumstances

[104]     I do not find that transitional exceptional circumstances apply in the calculation of the delay in this case.

VI.         CONCLUSION

[105]     The delay in this case in relation to Jiang and Manj is significantly greater than the Jordan ceiling.  As such, s. 24(1) of the Charter requires that a SOP is directed in relation to Jiang and Manj.

[106]     The trial will continue in relation to Johnson.

 

 

______________________________

The Honourable Judge G.M. Rideout

Provincial Court of British Columbia