IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On August 15, 2017, I found Mr. Hammer guilty of possessing heroin, a controlled substance, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

[2]           On November 2, 2017, Mr. Hammer applied for a stay of proceedings pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Right and Freedom on the basis his right to be tried within a reasonable time has been infringed or denied.  These sections state:

[3]           The primary purpose of s. 11(b) of the Charter is to protect the individual rights of the accused, namely his security of person, right to liberty, and the right to a fair trial.  It also has a secondary purpose, namely the interest of society to see an accused person treated fairly by the legal system: R. v. Morin, 1992 CanLII 89 (SCC).

[4]           In R. v. Jordan, 2016 SCC 27, the majority held at para. 19:

[5]           The hearing of Mr. Hammer’s s. 11(b) Charter application was adjourned to January 15, 2018.

[6]           The salient issues before this court are as follows:

[7]           At the hearing of Mr. Hammer’s 11(b) Charter application, I heard oral evidence of Joseph Hammer, submissions of counsel and received the following documentation:

[8]           I reviewed the DARS logs for the trial dates of January 25 & 26, 2016, May 2, 2016, June 7 and 8, 2016, September 15, 2016, January 6, 2017, April 6, 2017, May 16, 2017 and June 7, 2017, to assess how many of the scheduled trial dates were actually devoted to the trial of this matter.

[9]           The parties provided the Court with the following authorities:

[10]        I have set out the chronology of proceedings in the table below.

[11]        On July 8, 2016, the Supreme Court of Canada released its decision in R. v. Jordan, 2016 SCC 27, establishing a new analytical framework for determining whether an accused’s s. 11(b) Charter rights have been violated.  Jordan’s companion case, R. v. Williamson, 2016 SCC 28 (CanLII), was released the same day.

[12]        Jordan sets the temporal ceilings for the prosecution of criminal cases in Canada.  The presumptive ceiling for cases tried in Supreme Court is 30 months; the presumptive ceiling for cases tried in provincial court is 18 months.  If the total time from the charge date to the actual or anticipated end of the trial (minus defence delay) exceeds the ceiling, the delay is presumptively unreasonable: Jordan, para. 56.

[13]        The Jordan roadmap engages a seven step process which I have set out below.

[14]        Firstly, the Court must calculate the total elapsed time from the charge date to the end of the trial: Jordan, para. 60; Cody, para. 21; Morin, para. 30.

[15]        The question as to when the clock begins ticking in s. 11(b) Charter applications is well settled: it is the date the charge is laid: Morin, para. 30.  When or if the clock stops ticking is not so clear cut.  In British Columbia the B.C. Supreme Court has ruled the trial ends with conviction not sentence: R. v Dadmand, 2017 BCSC 1644 (CanLII), R. v. Akuma, 2017 BCSC 896 (CanLII); and R. v. Pelletier, 2016 BCSC 2496 (CanLII).

[16]        The Crown submits the reserve period between the last trial day and the decision date should not factor into the calculation for the total elapsed time.  In support of this proposition the Crown relies on K.G.K., in which Chief Justice Joyal of the Manitoba Court of Queen’s Bench held, at para. 43, that judicial deliberation time must be excluded from the presumptive ceiling analysis.  Joyal C.J., summarizes his position at para. 60:

[17]        Joyal C.H. was particularly concerned that judicial independence may be compromised if the reserve period was included in the presumptive ceiling: K.G.K., paras. 88-93.

[18]        The Defence points out that while the decision of Chief Justice Joyal in K.G.K. is persuasive; it is not binding on this court.  Moreover, other jurisdictions have ruled differently.  In R v Lovett, 2017 ABQB 701 (CanLII), Justice K.M. Eidsvik declined to follow K.G.K. on this issue.  She referred to the Alberta Court of Appeal case in R. v Mamouni, 2017 ABCA 347, where the appellate court was divided on whether the amount of time the trial judge reserved judgment should be counted in the presumptive ceiling.  Justice Watson stated the reserve time before conviction was to be included in the presumptive ceiling unless there are “exceptional circumstances”, in which case the time can be reduced or removed.  Justice Slatter, referencing K.G.K., opined at para. 34 that “[t]he time that it takes for a reserved decision to be rendered is not ‘delay’, and should not be counted in the s 11(b) analysis at all”.  Justice Crighton found it unnecessary to address the issue to dispose of the Mamouni appeal and as a result, there was no majority opinion on whether the reserve time should be excluded from the Jordan presumptive ceiling analysis.   Justice Eidsvik states in Lovett, in part:

[19]        Justice Eidsvik did not consider the six weeks it took for his decision as exceptional and therefore included it in the overall presumptive time calculation.

[20]        In R. v. Hertyk, 2017 ONCJ 641 (CanLII), Justice Patrice Band treated the date of anticipated end of trial as the end date.  She had reserved her decision for over five months for various reasons, which she characterized as an “exceptional circumstances”: Hertyk, para. 16.

[21]        In R. v Nepinak and Nepinak, 2017 MBQB 134, Zinchuk J. did not include the reserve time in the calculation of total time elapsed.

[22]        On November 6, 2017, Judge Keyes of the B.C. Provincial Court handed down her decision on R. v. Hammer, 2017 BCPC 377 (CanLII), in which she followed Justice Joyal’s decision in K.G.K. and R. v. Ashraf, 2016 ONCJ 584.  I am bound by the principles of judicial comity to consider Judge Keyes judgment.  While no statutory or common law rule compels me to follow the decision of another trial judge on a point of law, courts can promote certainty in the law by following the legal rulings of other trial judges.  The principle of comity and stare decisis direct that a failure to follow a prior decision of another judge of the same court is a disservice to litigants, lawyers and inferior courts, who are entitled to the law as reasonably settled and certain.  It is for the appellate court, not individual judges of equal jurisdiction, to correct judicial errors.

[23]        The leading case in British Columbia on judicial comity is Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), in which Wilson J. states:

[24]        I note that Lovett was released on November 17, 2017, 11 days after Judge Keyes released her decision.  Judge Keyes did not consider the appellate decision of Mamouni, which was released by the Alberta Court of Appeal on October 25, 2017.

[25]        I will follow the decision of my sister Judge Keyes in holding the reserve period should not be included in the calculation of time towards the presumptive ceiling. Accordingly, the total elapsed time from the charge date, August 6, 2014 and the end of the trial, June 7, 2017, was 2 years + 10 months +1  day or 1,036 days.

[26]        The Court must deduct from the total delay any delay attributable to the defence by waiver or defence delay-causing conduct: Jordan, para. 60; Cody, para. 22.

[27]         Defence delay is twofold: delay that is expressly waived by the defence and delay that is “solely or directly” caused by the actions or inaction of the defence: Jordan, at paras. 1, 66 and 113; Cody, at paras. 27 and 8.

[28]        Moldaver J. for the majority in Jordan, explained what the Supreme Court means by waiver:

[29]        The Crown bears the burden of proving defence waiver on a balance of probabilities: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 at 1228.  The Crown submits that when Mr. Hammer applied to adjourn the second trial date (September 23 and 25, 2015) his legal counsel expressly waived delay.  At the time he waived his s. 11(b) rights, Mr. Hammer was represented by Mr. LeBlond, his legal counsel.  I am satisfied Mr. Hammer comprehended what he was doing when waiving the procedural safeguard offered by s. 11(b) and appreciated the consequences on the criminal process.

[30]        The Defence concedes the period from September 23, 2015 until Mr. LeBlond was available to reschedule the trial ought to be characterized and deducted as defence waiver.  The Crown submits this period begins on September 23, 2015 and ends on January 25, 2016 - a total of 125 days or 4 months and 3 days.  The Crown argues that when an accused explicitly waives delay when adjourning a trial date, then the accused is responsible for all reasonable delay between the adjourned and rescheduled trial dates.  Specifically, the Crown argues that even if Mr. LeBlond was available for trial prior to January 25, 2016, the accused is still responsible for the delay up until that date.

[31]        Mr. LeBlond argues the Crown failed to prove the Defence was unable to proceed prior to January 25, 2016.  I do note on the Scheduling Notice of October 5, 2015 (Kaun Affidavit, Exhibit 27), the JCM offered December 1, 2015 as a potential trial date and Mr. LeBlond was not available.

[32]        In the circumstances I find the total period of delay expressly waived by Mr. Hammer was four months and two days or 124 days commencing September 23, 2015 and ending January 24, 2016.

[33]        The Crown argues Mr. Hammer caused 10 months and 22 days delay allocated as follows:

[34]        The Crown submits the period from September 4, 2014 to November 12, 2014 (69 days or 2 months + 8 days) ought to be characterized as delay caused by Mr. Hammer.  The Crown provided Mr. Hammer’s legal counsel with its initial disclosure on August 12, 2014 and its supplemental disclosure on August 20, 2014: Kaun Affidavit, paras. 7 & 14; Exhibits 4 & 14.  Mr. Hammer had all the material he required to have arraigned this matter on September 4, 2014.  This did not occur until November 12, 2014.  The Crown submits there was no reason for adjourning the arraignment, and therefore the 2 months + 8 day delay in arraigning ought to be considered as defence delay.

[35]        The Defence argues that in this jurisdiction, an accused does not typically arraign until his bail status has been determined.  If an accused is denied bail, then he is eligible for an expedited trial date.  In this case, Mr. Hammer’s JIR was repeatedly adjourned from August 7, 2014 until October 2, 2014, when RAJ Brecknell granted him bail.  The Crown acknowledges that in Prince George, there is a local practice of fixing trial dates after an accused’s bail status has been ascertained; however, argues that in light of Jordan, it is a practice that ought to be revisited.

[36]        In this respect, the Crown cites Judge Keyes comments at para. 35 of R. v. Hammer 2017 BCPC 377, in which she comments:

[37]        In Jordan, the Supreme Court cautioned that not all defence conduct falls within the rubric of defence delay.  The Court states at para. 65:

[38]        I note Mr. Hammer’s October 2, 2014 Recognizance of Bail is at the last rung of the ladder of release according to the Supreme Court of Canada in R. v. Antic, 2017 SCC 27 (CanLII).  The Crown opposed Mr. Hammer’s release on any terms and in fact, sought to revoke his bail on Court File 40410.  Mr. Hammer was in a reverse onus situation with respect to this matter (Court file 39485-2-C).  The October 2, 2014 Recognizance of Bail required Mr. Hammer provide a $5,000 cash deposit and a surety. He was banished from his home in Prince George and placed under house arrest at a friend’s residence in Grand Forks.  He was unable to perfect his bail until October 8, 2014.

[39]        I accept it likely Mr. Hammer needed some time to assemble a viable bail plan. The Crown submits that one month after having received Crown disclosure was sufficient time for Mr. Hammer to organize a bail plan and arraign.  I note Mr. Hammer did not receive all of the Crown’s disclosure until August 20, 2014, which would indicate the one month to which the Crown refers would commence on September 20, 2014, not September 4, 2014.

[40]        Mr. Hammer arraigned on November 12, 2014, 98 days or 3 months + 6 days after he was charged.  I do not agree that 2 months + 8 days of this time ought to be characterized as defence delay.  I find Mr. Hammer’s efforts to secure his judicial interim release were actions that should not be characterized as defence delay given the local practice of fixing trial dates after the accused’s bail status has been determined.  I do, however, find the delay from October 8 to November 12, 2014, namely, 35 days or 1 month + 4 days, is defence delay.

[41]        The first available trial dates offered to the Defence were February 22 and 23, 2015.  Mr. Hammer’s legal counsel was unavailable for those dates, and the trial date was scheduled for April 16 and 17, 2015: Kaun Affidavit, para. 20, Exhibit 17.  The Crown submits this 1 month + 25 day delay (or 53 days) ought to be considered as defence delay.

[42]        In Jordan, the majority held (at para. 64) that the defence will have directly caused delay if the Court and the Crown are ready to proceed and the Defence is not.

[43]        Mr. LeBlond concedes the defence was not ready to proceed to trial on February 22 and 23, 2015, however, argues the Crown has not provided any evidence the Defence was not available at any time before April 16 and 17, 2015.  The only evidence before me is the trial scheduling notice (Kaun Affidavit, Exhibit 17) indicating the dates of February 22 and 23, 2015, were offered to the defence.

[44]        In Jordan the Supreme Court decried the practice of examining a proceeding on a piece meal basis:

[45]        It is unreasonable to assume the Court and the Crown can be endlessly available to schedule a trial in concert with defence counsel’s ever changing calendar.  Even if Mr. LeBlond had some availability between the February and April 2015 dates, I do not find the Court and Crown ought to have been similarly available.

[46]        In the circumstances, I am satisfied the 1 month + 25 day period (or 53 days) from the offered trial dates of February 22 and 24, 2015 and the set trial date of April 16, 2015, is defence delay.

[47]        The Crown submits the period between August 19, 2016 and January 6, 2017 (4 months + 18 days), ought to be considered as defence delay.  The trial did not complete on July 8, 2016, and the Crown and Defence sought two additional days of trial.  The Judicial Case Manager offered dates of August 17 and 19, 2017.  Mr. LeBlond was not available on those dates.

[48]        I note in the Pre-Trial Conference held September 9, 2016 (Transcripts, Tab 9), Mr. LeBlond indicates he was available for trial in some unspecified weeks in October and November 2016.  The JCM notes on September 9, 2016, that I was not available until December 22 and 23, 2016; however, Mr. LeBlond was not available on those dates.  I glean from the Crown’s Supplemental Written Submissions dated January 25, 2018, that had I been available in the Fall of 2016, the trial continuation could have been scheduled in October or November 2016.

[49]        Mr. LeBlond submits defence delay ends when the Defence is available for trial.  In this case, Mr. LeBlond was available for two to three weeks to continue the trial in October and November; however the assigned trial Judge was not.  In Jordan, the Supreme Court held that is either the Crown or Court is also unavailable, the delay will not be attributable to the defence: Jordan, para. 64; Cody para. 30.

[50]        As indicated above, I do not understand Jordan to mean that if at any time the Court and Crown cannot accommodate Defence Counsel’s schedule, then the clock stops ticking on a period of defence initiated delay.  Nevertheless, I agree it is not appropriate to hold the Defence responsible for delay in this case during the entire period in which I was not available between August 19 and December 22, 2016.  I understand from the notations on the Scheduling Notice of September 9, 2016 and the JCM’s email exchange with Sharon Toombs (Kaun Affidavit, Exhibits 36 and 38) that I was not available after September 16, 2016 until December 22 and 23, 2016.  From my review of the record of proceedings, I find it reasonable that Court and Crown ought to have been able to schedule two additional days of trial within the period when Mr. LeBlond was available in October and November 2016, with reasonable notice. Accordingly, I find defence delay for the period between August 19 and September 14, 2016 (26 days ) and December 22, 2016 to January 6, 2017 (15 days), for a total of 2 months + 15 days or 41 days.

[51]        The Crown submits the period from April 6, 2017 to June 7, 2017, should also be considered defence delay.  This 2 month + 1 day delay (62 days) arose as a result of the Defence contesting the admissibility of the Crown’s Certificate of Analyst because of the insufficiency of the Crown’s Notice.  In R. v. Hammer, 2017 BCPC 144 (CanLII), I concluded the Certificate of Analyst was admissible and stated at paras. 77 and 78:

[52]        The background facts, the position and the submissions of the Crown and Defence are set out in R. v. Hammer, 2017 BCPC 144 (CanLII), and I will not repeat them here.  The Crown argues the decision to challenge the admissibility of the Certificates of Analyst was neither reasonable nor legitimate.  It did not further Mr. Hammer’s case.  It came late in the trial.  But for the Defence’s untenable position, the trial could have concluded on April 6, 2017, rather than June 7, 2017.

[53]        The Crown submits this was but one example of a Defence tactic aimed at causing delay, the others being the refusal to make reasonable admissions as to continuity and expert evidence.  In this regard, the Crown argues the decision R. v. Hammer BCPC 377, is apropos, wherein Judge Keyes states at paras. 68 and 72:

[54]        Mr. LeBlond submits the sufficiency of the service was a legitimate defence he was professionally obligated to challenge on behalf of his client.  As to the lack of defence admissions, he relies on the following comments of Lamer, C.J. in R.J.S., 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451 at para. 3:

[55]        In this case, while it was true the Defence made no admissions as to the continuity of the exhibits, I did not find Mr. LeBlond’s cross-examination irrelevant or prolix.  In the case of one exhibit, notably the fishing licence, there was a problem with its continuity.  Also, I found nothing untoward about Mr. LeBlond’s cross examination of the Crown expert.

[56]        Judge Keyes comments cited above were made after she found the presumptive ceiling had not been breached in the circumstances of the case before her.  Jordan states that if the delay that remains is below the presumptive ceiling, the Defence bears the burden of showing it unreasonable.  To do so, the Defence must establish that (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.  In the case before her Judge Keyes was not satisfied Mr. Hammer tried to expedite the proceedings as reflected in her comments.  In this case, the Defence asserts the net delay is above the presumptive ceiling.  Where the presumptive ceiling is breached, the Defence is not obligated to demonstrate it took meaningful, sustained steps to expedite the proceedings.  Rather, it must refrain from engaging in delay causing conduct.

[57]        As to the Defence’s challenge as to the sufficiency of the Notice of Intention with respect to the Certificate of Analyst, although I dismissed the Defence’s application, I did not find it frivolous and a deliberate and calculated tactic aimed at causing delay.  I also note the Crown and Defence’s submissions on April 6, 2017 took less than an hour near the end of the court day.  I am not persuaded the trial would have concluded on April 6, 2017, but for the argument on the admissibility of the Certificates of Analysis because the June 7, 2017 trial date took a further half day: Kaun Affidavit, para. 52, Exhibit 46.  On April 6, 2017 there were also other pressing matters on the docket on which I was seized.  Accordingly, I would not characterize the period between April 6, 2017 to June 7, 2017 as defence delay.

[58]        The Court must determine if the remaining delay (net delay) not caused by the Defence, exceeds the presumptive ceiling: Jordan, para. 67.  If it does exceed the presumptive ceiling, then it is presumptively unreasonable:  Jordan, para. 68.

[59]        The Crown submits the total delay caused by the conduct of the Defence is 14 months and 24 days, inclusive of delay arising from defence waiver.  The Defence admits responsibility for some delay, but not the amount the Crown asserts.

[60]        I find the total delay caused by defence waiver or conduct is roughly 8 months + 13 days (253 days ) allocated as follows:

[61]        As I find the net delay caused by the Defence is 8 months + 13 days (253 days), the delay from the time of charge to the end of the trial not caused by the Defence is approximately 26 months + 3 days (783 days), which exceeds the presumptive ceiling of 18 months for a provincial court trial.  Because it exceeds the presumptive ceiling, it is presumptively unreasonable.

[62]        If the net delay exceeds the presumptive ceiling, the Crown may rebut its presumed unreasonableness by demonstrating “exceptional circumstances”: Jordan, paras. 46-67 or transitional exceptional circumstances: Jordan, para. 96.

[63]        In Jordan, the majority of the Supreme Court defined exceptional circumstances in paras. 69 and 71:

[64]        The Court in Jordan did not attempt to categorize all the circumstances which might be considered a discrete event.  The Court did indicate discrete events may include:

[65]        At para. 74 in Jordan, Moldaver J. noted that if at trial unforeseeable issues arise at a time close to the ceiling, it would likely be more difficult for the Crown and the court to respond to those issues with a timely solution:

[66]        The Crown submits there were exceptional circumstances in this case amounting to discrete events.  The July 7, 2016 trial date was adjourned because the courthouse was unexpectedly short a judge and I was assigned to other matters.  Some of the July 8, 2016, trial date was also lost.  Because of this event more trial dates had to be scheduled.

[67]        The earliest trial date that had to be scheduled was August 17, 2016.  The Crown submits the time period between July 8, 2016 and August 17, 2016 (one month and 9 days), be characterized as a discrete event and deducted from the total delay.

[68]        The Defence argues the adjournment of the July 7, 2016 trial date was the result of the lack of judicial resources and not a discrete event.  I agree with the Defence and I do not find the delay arising from the cancellation of the July 7, 2016 trial date a discrete event.  The trial judge was present as were the parties and their witnesses.  The trial could not proceed because the Court was busy dealing with matters other than the continuation of this trial.  The record shows that on most of the nine days of trial, the court spent significant time dealing with other matters on the docket which did not engage the Crown or Defence counsels assigned to this case.

[69]        Complex cases are those which, by the nature of the evidence or issues, require an inordinate amount of trial and preparation time.  At para. 77, Justice Moldaver elaborates on what sort of evidence or issues may give rise to a complex case:

[70]        If, upon subtracting delay arising from discrete events the presumptive ceiling has been reached, the court must consider whether the case was particularly complex, such that the delay is justified.  In this case, the Crown acknowledges the case was not particularly complex.  I agree.  The lack of complexity is apparent from the initial and subsequent two day trial estimate for the trial.

[71]        The Supreme Court anticipated there would be a number of cases that predated its release of Jordan (July 8, 2016) and the trial judge must consider whether the transitional circumstances apply.  In Jordan (para. 96) the Court held the transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the previous legal framework, upon which the parties reasonably relied.  It is presumed the Crown and Defence relied on the previous law until Jordan was released:  Jordan, para. 69.

[72]        The assessment of whether the transitional exception applies is necessarily contextual, and should account for the manner in which that framework was applied.  The Court in Jordan states at para. 96:

[73]        At para. 102 in Jordan, the Supreme Court states:

[74]        This does not mean that the old Morin test continues to apply to cases currently in the system.  The trial judge should consider whether enough time has passed for the parties to correct their behaviour and for the system to adapt before determining that the transitional exceptional circumstance exists:  Jordan, para. 96.

[75]        A second “transitional exceptional circumstance” is the existence of significant institutional delay problems in the court’s jurisdiction.  Where the case is of moderate complexity in a jurisdiction with notorious institutional delays, the judge should consider that Crown Counsel’s behaviour will be constrained by those delays.  However, “stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist”:  Jordan, para. 97.

[76]        As this case was already in the system at the time of Jordan’s release, the Court can consider a transitional exceptional circumstance if the Crown establishes that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.  The transitional exceptional circumstance may justify the delay even where the deduction of discrete events does not reduce the delay below the ceiling and excess delay cannot be justified by case complexity: Cody, at para. 67.

[77]        Mr. Hammer’s case was in the system for 23 months and two days before the Supreme Court released its decision in Jordan.  

[78]        Under Morin, the reasonableness of the delay is determined by balancing of the following four factors:

[79]        Morin (at para. 55) suggested a guideline of 8 and 10 months for institutional plus Crown delay in Provincial Courts.

[80]        The first step in an s. 11(b) application under Morin was to determine whether there is a prima facie case of unreasonable delay having regard to the length of the delay, waiver, and reason for the delay.  The second step is to consider whether the interest of society to have the accused stand trial is outweighed by the prejudice to the accused.  Prejudice can be inferred from the length of the delay but it is not a presumption.  The onus is on the accused to prove on a balance of probabilities that he was prejudiced and that the prejudice was serious: Morin; R. v. Godin, 2009 SCC 26.

[81]        Under the Morin analysis delay is calculated from the date the information was sworn to the end of the trial.  As set out above, I find the length of the delay was 1,036 days (34 months + 1 days) and warrants an inquiry and assessment of whether Mr. Hammer’s s. 11(b) Charter rights have been violated.

[82]        Morin directs that where the length of delay triggers an inquiry, the Court will then consider whether the accused has waived any or all of the delay period.  Waiver may be explicit, or implicit from the conduct of the defence giving rise to an inference that the accused person unequivocally understood his or her rights under s. 11(b) of the Charter and waived the right.  The total period waived is deducted from the total time elapsed between the date of the charge and the date the trial concludes.  If the remaining time period is unexceptional, that is the end of the inquiry: Morin, pp. 24 - 26.  The Crown bears the onus of proving a waiver.

[83]        Consent to an adjournment by defence or agreement to a future date usually amounts to a waiver in the absence of evidence that the accused was acquiescing to the inevitable: Morin, para. 38; however, lack of availability of defence counsel does not amount to a waiver in every case: R. v. Godin, 2009 SCC 26 (CanLII), para, 23.  In Godin, Cromwell J. stated at para. 23: “[s]cheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

[84]        In this case, I found defence waiver of (124 days) or 4 months and 2 days commencing September 23, 2015 and ending January 24, 2016.

[85]        After deducting 124 days of delay waived by the Defence, the time from the charge to the end of trial is reduced to 912 days (approximately 30 months 12 days).  I find this remaining period unreasonable, and therefore will continue with a balancing of the reasons for the delay and any prejudice to the accused caused by the delay to determine if the remaining period of time constitutes unreasonable delay.

[86]        The reasons for delay requires the Court to take into consideration: (a) inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources, and (e) other reasons for delay: Morin, p.26.

[87]        Under Morin, the Court recognizes there are inherent time requirements to prepare the case for trial.  The inherent time requirements are threefold: (i) the intake period; (ii) the court time required; and (iii) the complexity of the case.

[88]        Inherent time requirement is “neutral”.  It does not count against either the Crown or the Defence in assessing unreasonable delay.  It simply is deducted from the operative period of delay.

[89]        Inherent delay involves case preparation and “intake requirements” such as retention of counsel, bail hearings, disclosure, pre-trial conferences and administrative paperwork: Morin, paras. 41 & 42.  The intake period starts when the Information is sworn and ends when the parties are ready to fix a date for trial.  The Crown’s disclosures to the Defence were complete on August 20, 2014, 14 days after the information was sworn.  This suggests the initial intake period ought to have been relatively short given the nature of the charge and the fact the police had completed their investigation.

[90]        In Morin, the SCC held that the fewer the activities which are necessary and the simpler the form each activity takes, the shorter the delay.  There may be a significant variation between those cases where the accused is summoned to court and those where the accused, like Mr. Hammer, was arrested and detained:  Morin, p. 26-28.  I accept in his circumstances, it would take Mr. Hammer some time and effort to secure his judicial interim release.

[91]        In Morin the Court held the length of time for inherent time requirements “will be influenced by local practices and conditions and should reflect that fact.  No doubt the intake period in a particular region will tend to be the same for most offences”:  Dass, at para. 73, citing Morin.

[92]        The intake period in this case was lengthened by the local practice of delaying arraignment and fixing trial dates until an accused’s bail status is resolved.  In this case it was not until October 2, 2014 Mr. Hammer was able to cobble together a bail plan and it took until October 8, 2014, before he was able to perfect its terms.  I have determined that the appropriate intake period was from August 6, 2014 to October 8, 2014, a period of 63 days or 2 months and 2 days.

[93]        At the outset, the Crown and defence anticipates this matter would take two days for trial; instead it took approximately 5 days of court time (assuming 5 hour days) spread over 10 days commencing January 25, 2016 and concluding on June 7, 2017: January 25, 2016: 1 hour; January 26, 2016: 4.5 hours; May 2, 2016: 3.5 hours; July 7, 2016 : 0 hours; July 8, 2016: 3 hours; September 15, 2016: 2.5 hours; January 6, 2017: 3.5 hours; April 6, 2017: 3.5 hours; May 16, 2017: 1 hour; June 7, 2017: 2.5 hours.

[94]        In Morin, the SCC held that in more complex cases requiring a preliminary inquiry and or multiple accused, the Court will accept a longer inherent time period: Morin, p. 28.  Accordingly, inherent time requirements will vary depending on the complexity of the case.

[95]        This was not a complex case.  It did not involve a preliminary inquiry and after November 18, 2015, it proceeded against Mr. Hammer alone.  The Defence advanced no Charter challenges beyond this application.  The Defence did not call evidence.  There were two voir dires, one relating to the admissibility of the Certificate of Analyst and the other to expert opinion.  These were not lengthy or unduly time consuming.  The Crown had to present evidence on the service of the notice of intention to adduce certificate evidence and on the expert’s qualifications in any event.

[96]        In considering the intake requirements, the court time required and the complexity of the case, the inherent time requirement would be 2 months + 2 days (or 63 days) had this matter proceeded on the first trial dates, April 16 and 17, 2015. Because the parties were required to seek new trial dates at least three occasions, there is also some additional inherent time requirement associated with scheduling additional dates mid-trial.

[97]        In considering the reasons for delay, the Court must consider whether the accused acted inconsistent with a desire to proceed with the trial and are therefore inconsistent with an assertion of an s. 11(b) violation.  Voluntary actions of the accused that fall short of waiver but nevertheless contribute to delay will be taken into account in evaluating the reasonableness of the delay:  Morin, pp. 28-29.  This may include change of venue motions, change of counsel, applications to re-elect, attacks on wiretap authorizations, adjournments which do not amount to waiver, challenges to search warrants, etc.:  Morin, para. 44.  While the accused is not required to do anything to expedite his trial, action or inaction which is inconsistent with a desire for a timely trial is something that the court can take into account in assessing prejudice: Morin:  para 62.

[98]        In R. v. McDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, where the Court observed:

[99]        As set out above under delay caused by defence conduct, I have found the defence responsible for approximately 129 days or 4 months + 9 days delay by its conduct:

[100]     In addition to those periods set out above, the Defence also shares responsibility for delay arising from the need to schedule additional trial dates as a result of underestimating the time required for trial.  When he set the third trial date (January 25 and 26, 2016) Defence Counsel agreed two days was a “fair estimate” of the time required for trial based on his review of the file: Transcript, September 18, 2015, p. 3, ll. 14-23.  This initial underestimation is one of the reasons the Crown and Defence were having to seek continuation dates mid-trial.

[101]     In addition to the particularized Defence’s delay inducing conduct referred to above, I do not find the Defence was particularly proactive in bringing this matter to trial.  In Cody, the Supreme Court held (at para. 33) that “Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently.”  In this case, there is scant evidence of Defence counsel raising the issue of delay with the Crown or the court or taking active steps to move the matter forwards expeditiously by inquiring into early trial dates.  Other than the Admissions of Facts comprising Exhibit 22, there is little evidence of the Defence meeting with the Crown in advance of the trial dates in an attempt to streamline the process.

[102]     Included under this heading are adjournment requests by the Crown, failure or delay in disclosure, and change of venue applications:  Morin, p. 29.  These must be actions within the control of the Crown which are not a necessary consequence of the charging decision.

[103]     The Crown adjourned the first trial date scheduled from April 16 and 17, 2015 to September 23 and 25, 2015.  Mr. Hammer was self-represented and did not actively oppose the adjournment.  Judge Callen ordered the trial would proceed on a date to be set whether or not Mr. Hammer had legal counsel.  Judge Callen ordered the delay arising from the Crown’s adjournment (5 months + 7 days or 160 days) attributable to the Crown: Transcript, April 10, 2015, p. 5.

[104]     One action on the part of the Crown which contributed to the delay in these proceedings arose from its underestimation of the time required for trial.  When setting the first and second and third trial dates, the Crown estimated two full court days were required for the trial, although it had six police witnesses, one expert and 32 exhibits for which continuity was not admitted.

[105]     The trial was scheduled to complete on January 27, 2016, but did not do so until June 7, 2017, 497 days or 16 months + 11 day later.  Both the Crown and Defence contributed to this delay, as did the Court.  In my view, however, the Crown bears a slightly greater responsibility for properly estimating the time it would take to try this case in circumstances where it intended to tender into evidence numerous exhibits seized at the scene with no admissions as to continuity or expert evidence.

[106]     Notwithstanding my preceding comments, I find the Crown worked reasonably efficiently and effectively to advance its case before the court, in terms of pre-trial disclosure, trial preparation, witness management and the flow of evidence.  Other than underestimating the time required for trial at the outset, I find the Crown made a reasonable effort to move things along, for example, by requesting the September 9, 2016 pre-trial conference to explore earlier trial dates than the January 6, 2017 date proposed by the Defence.

[107]     This category in the delay lexicon is often referred to as systemic or institutional delay and encompasses those time periods between the fix date where a trial date is arranged and the actual trial date less any periods waived by the defence or actions attributable to the defence.  It is the Court’s practical recognition that there is a limit on the number of courtrooms, judges and court staff available in any jurisdiction.  This factor comes into play when the parties are ready for trial but the system cannot accommodate them.  In Morin, (at p. 31) the Supreme Court recognizes that some allowance must be made for institutional delay, but there comes a point when the courts will no longer tolerate delay based on a plea of inadequate resources.

[108]     In Morin, the Supreme Court (at p. 34) set an institutional delay of between eight and ten months as a guide for Provincial Courts.  This guideline, however, was not a limitation period or ceiling on delay.  It was not intended as a precise or scientific formula.  The applications judge must consider the institutional resources in his or her jurisdiction, the strain imposed on them, statistics from comparable jurisdictions, the opinions of other courts and judges as well as expert opinion:  Morin, p. 35.

[109]     Sopinka J. held that the guideline set out in Morin (at p. 34) would be influenced by the presence or absence of prejudice in the individual circumstances under consideration: 

[110]     In this case the institutional or systemic delay between the arraignment date (November 12, 2014) and the first offered trial dates (February 22 and 24, 2015) was not significant: 3 months + 10 days (102 days).  I have already determined the period between February 22, 2015 and January 25, 2016, was either Defence or Crown delay. The more troubling periods of institutional delay arose after the trial began on its third trial date, January 25, 2016.

[111]      After the trial commenced on January 25, 2016, the Crown and Defence had to repeatedly return to the JCM to schedule additional trial time because they had originally underestimated the amount of time required for trial and because other matters scheduled into court took up significant portions of the trial time that was scheduled.  Of the two full days scheduled for the third trial date (January 25 and 26, 2016), only 5.5 hours were spent on this matter (January 25, 2016: 1 hour; January 26, 2016: 4.5 hours).  Counsel then scheduled three more full days of trial on May 2, 2016, July 7 and 8, 2016, during which only 6.5 hours were spent on the trial of this matter (May 2, 2016: 3.5 hours; July 7, 2016: 0 hours; July 8, 2016: 3 hours).  This pattern carried on long after the release of Jordan.  Of the 5 hours scheduled for trial on September 15, 2016, only 2.5 hours were spent on this matter; of the 5 hours scheduled for trial on January 6, 2017, 3.5 hours was spent on this matter.  Similarly, on April 6, 2017, the court spent 3.5 hours on this matter instead of the scheduled 5 hours.  On some of the scheduled trial days the Crown and the Defence had other matters they had to deal with; however, the record suggests that much of the lost time was due to institutional delay arising from the lack of judicial resources.

[112]     This category encompasses any other reason for the delay, including actions of the trial judge: Morin.  I have already addressed the time spent on other matters under the rubric of institutional delay.

[113]     In allocating delay, not all of the time not characterized as Crown or Defence delay can be considered systemic or institutional delay because there is always some inherent time requirement when additional trial dates must be fixed.  As set out above, the reason additional days were required arose from the Crown and Defence’s underestimation of the time required for trial and because the court often had to deal with unrelated matters scheduled in the same court room on the trial date.  It is, however, generally expected that incomplete cases will be given priority over other matters in court.

[114]     In my view the delay arising from the need to re-schedule trial time is a combination of (a) inherent delay; (b) institutional delay; (c) Crown waiver or delay; and (d) Defence waiver or delay.

[115]     Upon considering the materials filed and the Court record, I have allocated delay as set out below.

[116]     The total delay arising from institutional delay and Crown delay totals 574 days or approximately 19 months + 4 days.  This is well above the Morin suggested guidelines of 8 to 10 months for a Provincial Court trial.

[117]     The Crown points out that Northern B.C. is particularly vulnerable to the type of institutional delay which arose in this case.  The sparsity of judges means that a trial judge often has to deal with matters other than the trial before the Court.  Where a judge of the Court becomes unexpectedly unavailable, as was the case July 2016, the entire Provincial Court calendar is disrupted.

[118]     Under the Jordan framework the role of prejudice is set out in para. 54:

[119]     Under the Jordan framework it is presumed that an accused person will have suffered prejudice to their Charter-protected liberty, security of the person and fair trial interests when that person’s trial takes longer than 18 months to complete in Provincial Court.  This principle informed the setting of the presumptive ceiling.

[120]     Under the Morin framework, even if there has been unreasonable delay, a Court would not stay proceedings absent real and irremediable prejudice.  Where the accused suffered little or no prejudice, Morin held the consistently important interest of bringing those charged with criminal offences to trial outweighs the accused's and society's interest in obtaining a stay of proceedings on account of delay.

[121]     The nature of the prejudice of concern is that which arises as a result of trial delay, not because the accused is charged with a criminal offence.  The Court must draw a distinction between prejudice arising merely from being charged with a criminal offence and prejudice arising from delay.  It is only when there is delay under s. 11(b) that prejudice from being charged can be transformed into prejudice from the delay.

[122]     Under Morin, when assessing whether an accused suffered serious prejudice, the Court examines the effect of the delay on the three main interests that s. 11(b) protects: (1) security of the person, which can be adversely impacted by the anxiety and stigma of criminal proceedings; (2) the liberty of the accused, which may be impaired by delay when the accused is subject to restrictive bail conditions or kept in custody pending trial; and (3) the right to a fair trial and to make full answer and defence, which is given full effect when the proceedings occur while the evidence is fresh and still available: Godin, para 30.

[123]     Under Morin, as under Jordan, lengthy delay may give rise to an inference of prejudice:  Morin, p. 23, Godin, para. 30.  The “longer the delay the more likely that such an inference will be drawn:  Godin, para. 3.  However, unlike the Jordan analysis, inferred prejudice under Morin was not an irrebuttable presumption:  Morin, p.39. Moreover, a court is not obliged to infer prejudice if drawing the inference would be inconsistent with the other evidence:  Morin, p. 38.  Prejudice is more likely to be inferred from a lengthy delay where the accused’s actions did not in any way contribute to the delay.

[124]     In the instant case, the accused was in pre-trial custody for a significant period of time and then subject to onerous bail conditions which kept him under house arrest and far from Prince George, which was his home at the time of his arrest.

[125]     Mr. Hammer was arrested, incarcerated for 2 months + 2 days and then subject to onerous bail conditions.  At the time of his arrest on Information 39585-2-C, Mr. Hammer was subject to a Promise to Appear and a Form 11.1 Undertaking on Court File 40401-1.  The Crown sought to revoke bail on 40401-1 and detain Mr. Hammer on both matters.  The Recognizance of Bail which was ultimately imposed related not only to this matter, but also Court File 40401-1.

[126]     The Crown points out that it was Mr. Hammer’s proposal that he reside in Grand Forks.  This was not a condition requested by the Crown or unilaterally imposed by the Court.  Nevertheless, I am confident that if the Crown or the Judge believed the condition that Mr. Hammer reside in Grand Forks was unnecessarily restrictive, less onerous conditions would have been imposed.

[127]     In Morin, Sopinka J. stated the right to security of person is protected by s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings.  This right is not diminished because the accused is subsequently convicted of the offences.

[128]     In considering security of person in R. v. Hammer, Hammer, Malcolm, 2011 BCPC 234 (CanLII), RAJ Brecknell cites Justice Lamer’s comments in R. v. Mills 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 on the issue of prejudice and security of the person said:

[129]     Mr. Hammer asserts prejudice to his business interests arising from his banishment from Prince George while on bail.  Since 2007, Mr. Hammer has earned an income from rental units he owned and managed.  When he was prohibited from living in Prince George by the terms of his Recognizance of Bail, he lost one trailer unit to bailment by the landlord and another he had to sell.

[130]     In cross-examination in his affidavit, Mr. Hammer admitted that he sold one of his trailers to pay outstanding bills.  Although I do not find Mr. Hammer’s business losses were all due to the terms of his recognizance, I do accept he suffered financial hardship and losses because he was unable to attend to his residential properties in an effective or timely manner.

[131]     Mr. Hammer also sets out in his affidavit the expense he incurred having to travel back and forth from Grand Forks to Prince George to attend court.  He did this by Greyhound bus and estimates he did this six to eight times. I note the fares range from $100 to $163 each way.  He estimates that each trip to attend court in Prince George and return to Grand Forks cost him $500.  It was not until April 2017, that Mr. Hammer was given permission by the bail supervisor to remain in Prince George until the end of his trial (June 7, 2017) so he did not have to travel back and forth between Prince George and Grand Forks.

[132]     Mr. Hammer claimed the curfew interfered with his ability to obtain employment, even though he was entitled to seek permission for an exemption for employment purposes.  Mr. Hammer testified however, that he has not worked since 2007.  His Probation Officer did not reside in Grand Forks and Mr. Hammer never inquired into permissions for exemptions to his curfew to better facilitate his ability to find employment.  I understood that despite applying for jobs, Mr. Hammer never received any offers so the need to leave his residence for employment purposes did not arise.

[133]     Mr. Hammer also said that after he was released on bail on the $5,000 cash deposit he had no money to retain legal counsel and was refused legal aid because he owned property.  It was only in July 2015, after winning his appeal that he was able to secure legal counsel: Transcript April 10, 2015, pp. 4-5; Hammer Affidavit, para. 9.

[134]     The accused has not argued trial delay adversely impacted his ability to make full answer and defence.  Under the Morin analysis, prejudice caused by impairment of a defendant’s right to trial due to failing memory is insufficient to show serious prejudice of the nature required to attract a judicial stay of proceedings.  Still, in Godin (at paras. 25, 27 and 40), the Court recognizes the quality of recollection and evidence in that case can deteriorate over time.  

[135]     In my view, the nature and preservation of the evidence in this case minimized the risk that trial delay prejudiced Mr. Hammer’s ability to make full answer and defence.  All witnesses in this case were police officers whose evidence was thoroughly documented through police notes, photographs, the Report to Crown Counsel and exhibits seized at the scene.

[136]     Under Morin, a finding of prejudice was not enough.  Even in the face of lengthy delay, the decision to grant a stay of proceedings rested on a balancing of the prejudice suffered by the accused against the societal interest in a trial on the merits.  The more serious the offence, the greater the weight that is given to society’s interest in a trial on the merits.  The Supreme Court of Canada noted in Godin:

[137]     Within the Morin framework, the applications judge is to consider the seriousness of the charges.  As the seriousness of the offence increases, so too does the societal demand and interest to make sure that the accused be brought to trial (paragraph 30).  The seriousness of the charges in this case can be gleaned from the fact the maximum sentence for a person charged under s. 5(2) of the CDSA is life imprisonment.

[138]     In Williamson (at para. 34), the Supreme Court cautioned that an accused’s right to trial within a reasonable time cannot be diminished based solely on the nature of the charges.  The public interest is best served by trying serious charges on their merits in a timely manner.  In Cody, however, the Supreme Court clarified (at para. 70) that its decision in Williamson, should not be read as discounting the important role the seriousness of the offence and prejudice play under the transitional exceptional circumstance.

[139]     In Cody, the Supreme Court held that where the balancing under Morin of the seriousness of the offence and the prejudice established would have weighed in favour a stay under the prior Morin framework, “we expect that the Crown will rarely, if ever, be successful in justifying the delay pursuant to the transitional exceptional circumstance under Jordan” (Cody para. 74).

[140]     In this case, upon balancing the seriousness of the offence and the prejudice to Mr. Hammer, I find it would have weighed in favour of a stay under the prior Morin framework.  In reaching this conclusion, I have considered all of the circumstances, including the length and nature of the Crown and institutional delay, the efforts by the parties to move the case along, the prejudice to Mr. Hammer, the seriousness of the charges and the interests of justice.

[141]     I find the Crown would have understood the delay to be unreasonable, given expectations under Morin, however, was unable to move the matter along expeditiously because of the lack of judicial resources.  Hence, the delay was not reasonable under the Jordan transitional exceptional circumstance.

[142]     I find the delay in this matter is not justified by the transitional exceptional circumstances under Jordan.  Hence, Mr. Hammer’s s. 11(b) Charter rights have been infringed.

[143]     A stay of proceedings is the minimum remedy for a breach an accused s. 11(b) right:  Jordan,  para.  76.  Consequently, I direct a stay of proceedings pursuant to s. 24(1) of the Charter.