IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The applicants Corporal Michelle Rene Lebrun (Cpl. Lebrun) and Constable Mick Donald White (Cst. White) together with Constable Scott Kennedy Jones (Cst. Jones) are members of the RCMP charged with assaulting Trevor Ryan Vandervalk (Mr. Vandervalk) with a weapon, pepper spray. The charge arises from an incident which occurred when Mr. Vandervalk was in custody at the Oceanside RCMP detachment in Parksville, B.C. on June 10, 2013. The officers were all on duty.

[2]           A 12 day trial for Cpl. Lebrun and Cst. White is scheduled to commence on May 14, 2018 and to finish on May 31, 2018. A trial for Cst. Jones is set for the fall of 2018.

[3]           More than 39 months will have a lapsed from the date when the charge was sworn to the date the trial for Cpl. Lebrun and Cst. White is anticipated to end.

[4]           Cpl. Lebrun and Cst. White have made application for a declaration that their rights as guaranteed by sections 7 and 11 (b) of the Canadian Charter of Rights and Freedoms have been violated, and an order pursuant to section 24(1) of the Charter staying the prosecution against them.

[5]           The charge was sworn February 18, 2015.

[6]           A summons was issued requiring the accused to attend for a first court appearance on March 17, 2015.

[7]           On March 17, 2015 the case was put over to April 14, 2015 by consent.

[8]           The Crown provided initial disclosure before the date of the first appearance.

[9]           Before the second appearance defence counsel requested further disclosure, a list of Crown witnesses and a trial time estimate.

[10]        On April 14, 2015 the matter was adjourned to April 28, 2015 when the matter was adjourned again to May 19, 2015.

[11]        On May 19, 2015 Crown counsel advised the Court that the Crown was proceeding summarily. Not guilty pleas were recorded on behalf of the three accused. By agreement, the matter was put over until June 9, 2015 to fix a date for trial.

[12]        Defence counsel requested further disclosure on May 19, 2015.

[13]        On June 9, 2015 16 days were set for trial, commencing May 24, 2016 and ending July 22, 2016. The Court was to sit for four days in each of four weeks.

[14]        A pre-trial conference was set for March 22, 2016.

[15]        On June 30, 2015 and July 24, 2015 Crown counsel provided additional disclosure to defence counsel. The Crown declined to provide the PRIME reports and jail logs requested by defence counsel.

[16]        On March 22, 2016 the pre-trial conference was adjourned by Judge Saunders to April 5, 2016.

[17]        A pre-trial conference was held before me on April 5, 2016.

[18]        On April 8, 2016 defence counsel served a first party disclosure application seeking documents in respect of Mr. Vandervalk including PRIME records, PIRS records, Forensic psychiatric reports, Nanaimo Hospital records, police officer notes and RCMP policies. The disclosure application was returnable on May 24, 2016, the first day scheduled for trial.

[19]        The Crown opposed disclosing some of the material sought by defence counsel and advised that it believed that an O’Connor third-party disclosure application was required.

[20]        On May 6, 2016 defence counsel filed and served an amended disclosure application returnable on May 24, 2016 seeking the documents on a first party and third-party basis.

[21]        On May 19, 2016 a second pre-trial conference was held before me during which counsel requested, by consent, that the trial be adjourned to July 12, 2016 to allow time for resolution discussions and to deal with disclosure issues.

[22]        On June 30, 2016 Crown counsel suggested that, given the outstanding disclosure applications, the trial on the merits be adjourned. Defence counsel agreed that this was necessary.

[23]        On July 7, 2016, defence counsel filed a second amended disclosure application in which they sought additional documents including reports to Crown counsel relating to convictions of Mr. Vandervalk, BC Sheriff Services records respecting the detention of Mr. Vandervalk at the Nanaimo courthouse, the complete Independent Investigations Office file and Abbotsford and Victoria police department file materials respecting Mr. Vandervalk.

[24]        The disclosure application proceeded before me on July 12, 13 and 14, 2016. I gave my ruling on July 15, 2016.

[25]        With some restrictions, I ordered the production of all of the six categories of records sought by defence counsel. Of these, I ordered that five categories of records be disclosed as third party records.

[26]        Third-party O’Connor disclosure applications are generally in two parts to allow the Court to review documents produced and redact privileged portions.

[27]        The second part of the O’Connor application was adjourned to October 20, 2016. Sufficient time was necessary for the third parties to disclose the information to the Court and to counsel for Mr. Vandervalk. In particular, considerable time was needed for counsel for the RCMP to obtain past reports to Crown counsel relating to a large number of Mr. Vandervalk’s criminal convictions.

[28]        Not all defence counsel were available for October 20, 2016 so the second part of the disclosure application was adjourned to December 5, 2016.

[29]        The Order for disclosure which I made on July 15, 2016 was not filed for entry by the defence until November 17, 2016. It was then served on all third party record holders.

[30]        As of December 5, 2016 the Court had not yet received records from the Abbotsford and Victoria police departments or from the Forensic Psychiatric Services Commission. The second part of the O’Connor application was, therefore, adjourned to December 13, 2016.

[31]        On December 7, 2016 counsel for Mr. Vandervalk advised that he was withdrawing as counsel. As a result, the December 13, 2016 hearing of the second part of the O’Connor application was postponed.

[32]        On December 16, 2016, the continuation for the second part of the O’Connor application was rescheduled for February 9, 2017.

[33]        On February 9, 2016 new counsel for Mr. Vandervalk appeared by telephone and advised that he had just recently been retained through Legal Services and had not yet received the disclosure material. As a result, the hearing was then adjourned to March 7, 2017 at which time it was concluded. The third party material ordered disclosed was delivered to counsel shortly thereafter.

[34]        On July 22, 2016 the Judicial Case Manager offered the following second dates for trial:

[35]        While Crown counsel was available on these dates, collectively, defence counsel were not.

[36]        On December 5, 2016 defence counsel jointly provided the following available 2017 dates for trial:

[37]        The Court could not accommodate all of these dates.

[38]        In March 2017 counsel for each of the accused provided further available dates for trial as follows: Mr. Klein for Cst. White: Weeks of May 1, 8, 2017; June12, 2017; July 31, 2017 and from March 26, 2018 onwards except the week of April 23, 2018.

[39]        On March 29, 2017 defence counsel suggested that Cst. Jones be severed and tried separately from Cst. White and Cpl. Lebrun. In April 2017 this was done with the consent of the Crown.

[40]        On June 1, 2017, 12 days for trial were set over the period May 14 - 31, 2018 for Cpl. Lebrun and Cst. White. The Court is scheduled to sit for four days in each of three weeks.

[41]        On July 8, 2016 the Supreme Court of Canada rendered its decision in R. v. Jordan 2016 SCC 27.

[42]        In Jordan, the Supreme Court established a new legal framework for assessing delay.

[43]        The Court emphasized the importance of the right to trial within a reasonable time as guaranteed by section 11(b) of the Charter.

[44]        The majority of the Court set a presumptive ceiling of 18 months for trials in Provincial Courts. The majority held that if the delay from the day the charge is laid until the time the trial is expected to conclude is over 18 months it is presumptively unreasonable.

[45]        A delay exceeding 18 months is presumed to cause prejudice to the accused.

[46]        In calculating the net period of delay, delay solely attributable to the accused must be deducted from total delay. Defence delay is either delay waived by the defence or caused solely by the conduct of the defence. If the total delay minus the defence delay exceeds the 18 month presumptive ceiling the Crown may rebut the presumption of unreasonableness on the basis of exceptional circumstances.

[47]        The Supreme Court identified two categories of exceptional circumstances: discrete exceptional events and particularly complex cases. Discrete exceptional events include unforeseeable or unavoidable developments that cannot be mitigated.

[48]        If the net delay is less than 18 months, or the Crown establishes that exceptional circumstances reduce the net delay below 18 months, the delay is presumptively reasonable. The defence then has the onus of showing that the delay was unreasonable in the circumstances.

[49]        If the Crown and the Court are able to proceed to trial on a particular date and the defence is not, then the delay flowing from the defence unavailability is attributed to the defence.

[50]        Counsel filed written submissions and then made oral submissions before me beginning on March 9, 2018 and concluding on April 3, 2018.

[51]        All counsel agree that the total delay in the present case is 39 months 14 days. The Crown submits that there are four time periods which should be characterized as periods of defence delay. In the Crown’s written submissions the periods are set out as follows:

[52]        In its written submissions the Crown submits that the four time periods of defence delay total 21 months 28 days leaving a net delay of 17 months 14 days.

[53]        Following the first day of oral submissions I reviewed the written submissions submitted by counsel. When doing so I carefully considered the four time periods of delay which the Crown submits are defence delay and should be deducted from the overall delay of 39 months 14 days.

[54]        I considered the four time periods and calculated the length of each. My calculations differed somewhat from those set out in the Crown’s written submissions. I calculated the first three periods of delay identified by the Crown to be 113 days, 49 days and 212 days respectively. I found that the length of the fourth period depended on what date that period should properly start.

[55]        After doing so I prepared an email which I sent to the Judicial Case Manager and asked to be forwarded to counsel. I stated in my email that I had not yet decided whether I agreed with the Crown’s submissions that the four periods of delay should all be characterized as defence delay. I said that the numbers set out in my email were the numbers which I believed should apply if, after hearing full submissions from counsel, I accepted the Crown’s characterization of the delay. I invited counsel to check my calculations and consider my comments and to respond. All counsel did so. 

[56]        In their respective written responses to my email the Crown and the defence agree as follows:

[57]        The defence responded that they intended to argue that the four periods of delay identified by the Crown should not all be characterized as defence delay.

[58]        In their written responses, the Crown and the defence disagree as to how much delay was caused by defence counsel’s unavailability for the second trial dates offered.

[59]        In my email I stated that it seemed to me that it would not be correct to conclude that had the trial proceeded on the dates offered for 2017 it would have taken just three weeks. That is because the five weeks offered in 2017 were for a trial of all three accused. I stated that I would expect that a trial for all three accused in 2017 would have taken longer than the three weeks presently scheduled for the trial of two of the accused. I noted that at one of the pre-trial conferences counsel for Cst. Jones stated that he believed that six weeks would be required for trial.

[60]        In its response to my email, the Crown states that the fourth period of delay should be measured from when the trial of all three accused could have been concluded. The Crown submits that the Court should not rely on the defence estimates of trial not used in scheduling. Rather, it says that the Court should use as a baseline the time set aside for the first trial set for the three accused. It noted that when the first trial dates were set for the three accused the defence estimate ranged from four to six weeks and counsel agreed to set the four weeks for trial and see whether it can be done in that time.

[61]        In its written response, the Crown noted that the first trial was scheduled for 16 days. That is, four days in four separate weeks.

[62]        The Crown submits in its written response that had the trial of the three accused proceeded in 2017 as offered it could have been completed by August 25, 2017. It says that there would have been five days available from May 29 to June 2, 10 days available from August 14-25 and additional day available on August 11, 2017.

[63]        In response to my email, the defence submits that given that defence counsel estimated that six weeks would be required for a trial for the three accused that any calculation of the delay resulting from defence unavailability for the second trial dates should start on November 3, 2017. That is the end date of the five weeks of trial time offered by the Judicial Case Manager.

[64]        As I stated earlier, I heard a second and final day of oral submissions on April 3, 2018.

[65]        Having heard complete submissions from the Crown and the defence I will now review and consider the four periods of time which the Crown submits are periods of defence delay.

[66]        The first period is the delay in fixing the first trial date. This delay of 113 days assumes that the Court could have set a trial commencing on February 1, 2016 and that there was sufficient time for the trial to conclude before May 24, 2016.

[67]        The evidence before the Court is a scheduling note made by the Judicial Case Manager on June 8, 2015 which states “Nanaimo has time available in Feb. onward”. I find that it is not clear from this note whether the trial could have started on February 1, 2016 or on some later date in February 2016. I also find that it is not clear from the scheduling note whether the Court had four weeks of trial time before May 24, 2016. I have now confirmed with the Judicial Case Manager that the trial could have started on February 1, 2016 and concluded before May 24, 2016. In Jordan, the Supreme Court of Canada makes it clear that if the Court has available time and the Crown is available but the defence is not, then the delay caused is defence delay. Accordingly, I find that the delay in fixing the first trial date is 113 days and is defence delay.

[68]        Next is the delay resulting from the consent adjournment of the first trial. The Crown submits that the defence waived this period of delay and that it should, therefore, be characterized as defence delay. The defence disagrees. I agree with the defence that there is no evidence before the Court that the defence explicitly or expressly waived this delay. The defence argues that the fact that they agreed to the adjournment from May 24 to July 12, 2017 for the purpose of having time for resolution discussions does not constitute waiver.

[69]        The Crown submits that waiver can be implicit or explicit provided that it is informed, clear and unequivocal. In this case the three defence lawyers are all very senior, experienced and capable. I find that although the defence did not expressly waive the delay, waiver is implicit. Had the defence wished to avoid a finding of waiver, I believe that they would have stated so in writing or on the record. Accordingly, I find that the delay of 49 days from May 24 to July 12, 2016 is to be deducted from the total delay.  

[70]        Whether or not I am correct in finding that the defence implicitly waived the delay resulting from the consent adjournment of the first trial, I note that, given the outstanding defence disclosure applications, there is no way that the trial could have started before July 12, 2016.

[71]        Next is the period of delay resulting from the defence disclosure applications.

[72]        On July 24, 2015 the Crown advised the defence in a letter that it would not agree to provide all of the disclosure then sought by the defence. I would expect that it would have been clear to the defence by that date or sometime soon after, that if they wished to receive all of the disclosure that they believed was appropriate and necessary to conduct a full defence, that a formal disclosure application would likely be required.

[73]        The trial was set to begin on May 24, 2016; however, the defence did not serve its first disclosure application until April 8, 2016. This application was an application for first party disclosure.

[74]        The defence notes that this application was served just two days after the defence had received disclosure of the JUSTIN conviction list setting out Mr. Vandervalk’s entire criminal record. The JUSTIN conviction list contains 12 criminal convictions and three peace bond recognizances from 2012 to 2016 which are not contained in the CPIC criminal record provided to the defence on July 24, 2015.

[75]        While I find that these additional convictions are relevant to the particulars of the defence disclosure requests, I also find that the defence could have requested disclosure of the JUSTIN conviction list for Mr. Vandervalk at an earlier time.

[76]        The defence served an amended disclosure application, for both first party and third party disclosure on May 6, 2016. This was in response to the Crown taking the position that much of the disclosure sought was third party disclosure and that an O’Connor application was necessary.

[77]        All things considered, I find that the defence could have filed their disclosure applications much earlier than they did. I find that if they done so, the disclosure process would very likely have been concluded before May 24, 2016 when the trial was first set to begin. If, for example, the defence had filed their disclosure application in September 2015, there would have been eight months before trial for the disclosure process to complete.

[78]        On July 15, 2016 I made a ruling on the disclosure application. With some restrictions, I ordered the production of all 6 categories of records sought by the defence. Of these, I found that all documents, but for the Independent Investigations Office file, were third party records.

[79]        As a result, the two stage O’Connor application process applied. I note that during the hearing of the first stage of the O’Connor application the Crown agreed that all but the reports to Crown Counsel and PRIME reports were likely relevant and should be provided to the Court and to counsel for Mr. Vandervalk. Counsel for Mr. Vandervalk opposed the disclosure of all of the documents sought by the defence.

[80]        I find that, in all of the circumstances, there is little more that the Crown could have done to speed up the disclosure process. Given that counsel for Mr. Vandervalk opposed disclosure and that I found that the two stage O’Connor process applied, further delay was inevitable.

[81]        I find that the time taken for counsel for the RCMP to obtain and provide the many reports to Crown counsel ordered disclosed was reasonable.

[82]        As of December 5, 2016 the Court had not yet received the disclosure from the Forensic Psychiatric Services Commission or from the Victoria and Abbotsford Police Departments. That may be because the Order for disclosure made on July 15, 2016 was not filed for entry until November 17, 2016 and was not sent out until shortly after that. 

[83]        Given the forgoing, and especially the fact that I have found that, if a disclosure application had been filed more promptly, the disclosure process could have been completed before May 24, 2016, the first date set for trial, I agree with the Crown and find that the period of 212 days from July 12, 2016 to February 9, 2017 is a period of defence delay.

[84]        The fourth period of delay which the Crown submits should be characterized as defence delay is that resulting from defence unavailability for the second trial dates offered on July 22, 2016 for 2017.

[85]        As I stated above, on July 22, 2016, the Judicial Case Manager offered the following five weeks in 2017 for the trial of all three accused Cst. Jones, Cpl. Lebrun and Cst. White:

[86]        The Crown notes that the first trial in 2016 was scheduled for a total of 16 days. That was four days in each of four separate weeks.

[87]        The Crown submits that a trial for all three accused could have been completed in 16 days and could have concluded by August 25, 2017.

[88]        The Crown submits that in considering this period of delay the Court should not rely on trial time estimates provided by defence counsel at the time the 2017 trial dates were offered in July 2016. The Crown argues that the Court should use as a baseline the time set aside for the first trial of the three accused. I respectively disagree. In my experience, defence counsel are often best placed to accurately estimate the time required for a trial. That is because, unlike the Crown and the Court, defence counsel know whether the defence will likely be calling evidence and, if so, how long it will probably take.

[89]        Counsel for Cst. Jones estimated that a trial for all three accused in 2017 would take six weeks. I believe that this estimate included time for the making of submissions by all four counsel. On July 22, 2016 the Judicial Case Manager offered five weeks of trial time in 2017. The six week time estimate and the dates offered are confirmed in an email from the Judicial Case Manager to all counsel sent on July 22, 2016.

[90]        As I stated earlier, the Crown submits that 16 days of trial could have been completed by August 25, 2017. It says there were five days available from May 29 to June 2, 2017, a single day available on August 11, 2017 and 10 days available from August 14 to August 25, 2017. This assumes five days of sitting per week with no judgment days. In my view, this is not a correct assumption. The standard practice is for the Judicial Case Manager, in any given week, to schedule the Court to sit for four days and to have one judgment day. The only exception is if the judge is asked by the Judicial Case Manager and agrees to sit for five days without a judgment day. That would be very unusual and did not occur in the present case. The Crown suggests that this could well have occurred had the defence been available for the 2017 trial dates offered. Given that five weeks of trial time were offered, I believe this to be very unlikely.

[91]        The Crown’s assertion that 16 days of trial could have been completed by August 25, 2017 also assumes that the court would sit for a single day on August 11, 2017. I question whether it would have been reasonable to expect out of town counsel to travel to Nanaimo for the single day of August 11, 2017. Especially, given that five weeks were reserved for trial. I note that the Judicial Case Manager did not offer August 11, 2017 when providing the available 2017 dates on July 22, 2016. The day of August 11, 2017 was not offered by the Judicial Case Manager until she did so by email sent on March 21, 2017.

[92]        If the Court sat for four days in each of the first three weeks offered in 2017, there would have been 12 sitting days up to and including August 25, 2017.

[93]        Given the established practice of sitting for four of five days in a given week, the fact that had the trial proceeded on the dates fixed in 2016, the Court would have sat for four days in each of four separate weeks and the fact that when the 2017 dates were offered the Court was not asked to consider sitting for five days in each of three weeks, I find that a 16 day trial would almost certainly have ended on October 27, 2017.

[94]        If I was to accept the Crown’s submission that the trial for all three accused could have been completed in 16 days, the period of delay due to defence unavailability for the second trial date would be from October 27, 2017 to May 31, 2018. This is 216 days.

[95]        Defence counsel submit that the appropriate start date to be used when calculating the delay due to defence unavailability for the second trial dates offered is the end of the five weeks offered. That is November 3, 2017.

[96]        Given that defence counsel estimated that six weeks would be required for a trial for the three accused and that upon having input from counsel the Judicial Case manager offered five weeks, I find that it is very unlikely that the trial could have been completed in less than the five weeks offered. That would be a total of twenty days with the Court sitting four days in each of the five weeks. In my experience as counsel and now as a judge, unless a case resolves itself by way of a change of plea or a stay during trial, it is very rare that a trial will complete in less time than is allocated.

[97]        I am not aware of any evidence before me that supports a conclusion that had a trial been able to proceed in 2017 that it would have taken significantly less time than was estimated by defence counsel and as was offered by the Judicial Case Manager.

[98]        Based upon the information before me, I agree with the defence and find that the period of delay due to defence unavailability for the second trial dates offered should start on November 3, 2017 and run to May 31, 2018. This is 209 days.

[99]        The Crown submits that if the Court finds that the net delay after deducting defence delay from the overall delay of 39 months 14 days exceeds 18 months, the Court should find that there are exceptional circumstances in this case. In particular, the Crown notes that on February 9, 2017 the Court could not proceed with the second stage of the O’Connor disclosure application because the new lawyer for Mr. Vandervalk had just been retained and had not received the disclosure and was, therefore, not prepared to proceed. As a result, the hearing was adjourned to March 7, 2017.

[100]     The Crown submits that this delay was not reasonably foreseeable and could not be remedied by the Crown. It says that, as consequence, this period of 26 days is a discrete exceptional circumstance outside the Crown’s control.

[101]     If I accept the Crown’s argument that this delay was caused by an exceptional circumstance, the delay of 26 days must be deducted.

[102]     Based on my assessment of the four periods of delay identified by the Crown, I find that the defence delay in this case is as follows: 113 days in fixing the first trial date; 49 days resulting from the adjournment of the first trial date; 212 days as a result of the disclosure application and 209 days because of defence unavailability for the second trial date. This defence delay totals 583 days or 19 months 5 days.

[103]     The Crown and defence agree that the total delay in this case is 39 months 14 days. If one deducts defence delay of 19 months 5 days from a total delay of 39 months 14 days the net delay is 20 months 9 days. This exceeds the 18 month presumptive ceiling set in Jordan.

[104]     I must, therefore go on to consider exceptional circumstances. If I accept the Crown’ submission that the delay of 26 days from February 9 to March 7, 2017 was caused by exceptional circumstances and should be deducted, this leaves net delay of 19 months 13 days. This delay exceeds the presumptive ceiling of 18 months by one month 13 days.

[105]     In my analysis I have not considered all of the arguments made by the defence that not all of the four periods of delay identified by the Crown should be characterized as defence delay. Given my finding that based on my analysis of the Crown’s submissions that the net delay exceeds the 18 month presumptive ceiling I have decided that it is not necessary for me to do so.

[106]     I find that the sections 7 and 11(b) Charter rights of Cpl. Lebrun and Cst. White have been violated. As a result, I order pursuant to section 24(1) of the Charter that the prosecution against each of them be stayed.