Citation:	R. v. Irwin
	2018 BCPC 94
Date:		20180419
File No:		243262-1
Registry:		Vancouver

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

Criminal

 

 

 

 

 

REGINA

 

 

v.

 

 

CHRISTOPHER IRWIN

 

 

 

 

RULING ON CHARTER VOIR DIRE

OF THE

HONOURABLE JUDGE G. RIDEOUT

 

 

 

 

 

Counsel for the Crown:	M. Myhre
Counsel for the Defendant:	V. Williams
Place of Hearing:	Vancouver, B.C.
Dates of Hearing:	Sept. 25, 28, 29, Oct. 2, 3, 4, 5, Dec. 5, 2017; Jan. 26, Mar. 28, 2018
Date of Judgment:	April 19, 2018

I. INTRODUCTION

II. LEGAL FRAMEWORK

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

11. Any person charged with an offence has the right

…

(b) to be tried within a reasonable time;

•                    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, and 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

(iii) Defence - Waived Delay

(iv) Defence - Caused Delay

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 with the defence is not ready to proceed or available, where 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

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;

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

(vi) Defence Onus

III. CHRONOLOGY OF THE CASE

Date	Appearance		Timeline
2015.12.31	Date of alleged offence.
2016.06.28	Information sworn (Tab 1). Arrest warrant issued for Mr. Irwin.		0 days
2016.06.29	Mr. Irwin is arrested in Sechelt and subsequently granted judicial interim release. The other accused are arrested and dealt with at Vancouver Provincial Court.		1D
2016.07.08	Supreme Court of Canada releases its decision in Jordan.
2016.07.13	Appearance in Court 307 at 222 Main Street for Mr. Irwin only. Mr. Irwin receives the initial disclosure materials from Crown Counsel (Tab 2). The co-accused had been adjourned to a different date, so Mr. Irwin was adjourned to that date to reunite the files.		15 D
2016.07.26	Ms. Williams, for Mr. Irwin, sends a letter for further disclosure (Tab 3). All accused appear in courtroom 307. The matter is adjourned due to outstanding disclosure.		28D
2016.07.28	Report to Crown Counsel v1 sent to all counsel. It includes police statements from Det. Jaswal and Cst. van Eerd detailing their recognition of Mr. Irwin (Tab 4). Cst. van Eerd stated that she had never seen or met Mr. Irwin in person. Det. Jaswal’s report indicated a single interaction from 2015		30D
2016.08.15	Ms. Williams contacts Crown Counsel and advises that Mr. Irwin intends to set this matter for trial. Crown Counsel Ms. Carmichael advises that the Crown would require until after Labour Day to assign a trial Crown.		48D
2016.08.17	Appearance in courtroom 307. The matter is adjourned to September 7, 2016, for trial Crown to be assigned.		50D
2016.08.25	By email, Crown Counsel Ms. Turnbull, requests an adjournment of the September 7, 2016, date as no trial Crown has been assigned yet. Ms. Turnbull advises that the trial Crown would need time to review the file and have discussions with counsel. All counsel “acquiesced to the inevitable” to the Crown’s request. The matter is adjourned from September 7 to September 15 by consent requisition.		58D
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 the matter is for trial. Ms. Tomasson estimates 12 days would be required for the Crown case and seeks admissions. The Crown is prepared to arraign the file from this date. Ms. Williams is also in a position to arraign the matter.		79D
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.		85D
2016.09.27	Pre-trial conference #1 in chambers before Judge Galati. Crown Counsel advises that new video evidence has been created (“the circle video”) and should be provided to the defence shortly. Counsel are invited to arrange an appointment to attend Crown Counsel’s office to view the circle video; Ms. Williams attends. The pre-trial conference is adjourned as the disclosure has not been provided		91D
2016.09.28	The circle video is disclosed to the defence.  (Tab 5)		92D
2016.10.05	Discussions between Ms. Williams and Ms. Tomasson regarding outstanding disclosure. Ms. Williams forwarded her July 26, 2017 letter to Ms. Tomasson. Both Ms. Williams and Ms. Tomasson are in a position to set the matter for trial.		99D
2016.10.12	Pre-trial conference #2 in chambers before Judge Galati. There are ongoing resolution discussions involving three of Mr. Irwin’s co-accused, and so the pre-trial conference is adjourned again.		106D
2016.10.24	Pre-trial conference #3 in chambers before Judge Galati. All accused send agents to appear on their behalf. Agent for Mr. Irwin indicates Mr. Irwin intends to proceed to trial. The Crown expresses concern about the lack of admissions. The defence expresses concerns over the general nature of the wording of the admissions.  Crown Counsel advised that she would send written admissions to the defence for consideration. Galati J. orders that all counsel attend for another pre-trial conference.		118D
2016.11.07	Pre-trial conference #4 in chambers before Judge Galati. Irwin is prepared to set the matter for trial. Counsel proceeding to trial indicate that the requested admissions can be made. The time estimate is reduced from 12 days to 8. The matter is adjourned to November 10, 2016, for formal arraignment.		132D
2016.11.10	The matter is arraigned. All counsel attends the JCM’s office.  The first trial date offered by the court is September 11, 2017. This date was available to all except for counsel, except for Mr. Nathanson, counsel for Mr. Nguyen. The trial is scheduled for September 25, 26, 28, and 29; and October 2-5, 2017 (Tab 6).		135D
2017.08.17	Ms. Williams requests a witness list and trial plan from Crown Counsel. (Tab 7)		1Y 50D
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, with a witness list to come no later than September 19. Ms. Williams follows up with Mr. Myhre and again requests a witness list and trial plan. Mr. Myhre responds by giving a general time frame for the categories of witnesses, but declines to provide a final list until witnesses had been interviewed.		1Y 70D
2017.09.14	Mr. Nathanson gives notice seeking to exclude certain evidence relating to Mr. Nguyen under s. 24(2) of the Charter.		1Y 78D
2017.09.15 and 2017.09.19	Mr. Myhre provides will-says obtained from the trial preparation interviews from several of the intended trial witnesses, including Cst. van Eerd and Det. Jaswal  Included within the will says of the witnesses are newly disclosed information relating to identification of Mr. Irwin which Crown Counsel seeks to introduce into evidence at trial.  Cst. Van Eerd and Det. Jaswal purported to have interacted with Mr. Irwin on some ten occasions each.  None of the PRIME reports, notes, or specific details relating to those interactions are disclosed at that time.  Det. Jaswal then provided a second will say intending to replace the first one), which differed significantly in the purported recognition evidence related to Mr. Irwin.		1Y 79D and 1Y 82D
2017.09.20	Mr. Myhre advises all counsel that he is in agreement with the Charter application filed by Mr. Nathanson and that therefore there would be a stay of proceedings against Mr. Nguyen.		1Y 83D
2017.09.21	Mr. Fowler, counsel for Mr. Manj, 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 the recognition witnesses and Mr. Manj.		1Y 84D
2017.09.24	Ms. Williams requests further disclosure related to a traffic stop on Mr. Irwin in which Cst. van Eerd was involved (Tab 8).		1Y 88D
2017.09.25	Trial commences. Mr. Myhre forwards Ms. Williams’ disclosure request to Cst. van Eerd. Cst. van Eerd responds to the request the same day and provides the dates of the interactions, but no reports or notes of the same. The time frame of the interactions with Cst. van Eerd and Mr. Irwin is from July 19, 2016 to July 6, 2017.		1Y 89D
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. Due to the outstanding disclosure requests, continuation dates of September 28 and 29 are dropped and the trial is adjourned to October 2.	1Y 90D
2017.09.28	Mr. Myhre sends Ms. Williams some of the disclosure provided by Cst. van Eerd, which is a recently drafted will say only. Ms. Williams advises that she believes more is required, including radio communication related to the traffic stop. Mr. Myhre passes disclosure request on to Cst. van Eerd.	1Y 92D
2017.10.01	Cst. van Eerd advises that radio communications have been requested and provides a statement regarding her role in the traffic stop of Mr. Irwin.	1Y 95D
2017.10.02	Trial continues. Mr. Myhre provides Ms. Williams with Cst. van Eerd’s statement and advises that the timeline for the disclosure of radio communications is uncertain. Mr. Myhre writes to all counsel seeking formal Charter notice and canvassing ideas for moving the trial forward. Although the recognition voir dire is a Crown application, Ms. Williams advises seeking to exclude the evidence of Det. Jaswal and Cst. 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.	1Y 96D
2017.10.03	Trial continues. Mr. Myhre provides Ms. Williams with the notes forwarded by Det. Jaswal.	1Y 97D
2017.10.04	Trial continues. Vukelich hearing with respect to whether the remedy of exclusion of evidence is an available remedy. Court finds that it is an available remedy.	1Y 98D
2017.10.05	Trial continues. Severance application is made by Mr. Myhre to sever Mr. Johnson from the other accused, as the evidence related to him has concluded. The application is denied.	1Y 99D
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.	1 Y 99 D to 1Y105D
2017.10.23	The dates for the voir dire are scheduled: May 23, 24, and 25, 2018 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. Irwin was available for all of the dates offered. (Tab 9)	1Y 117D
2017.11.01	A trial conference is held in order to confirm the scheduled continuation dates.	1Y 126D
2017.11.20	Ms. Williams files s. 11(b) notice on behalf of Mr. Irwin.	1Y 145D
2017.12.26	Jordan presumptive ceiling of 18 months	1Y 180D
2018.01.02	Radio communications of the motor vehicle stop of Mr. Irwin involving Cst. van Eerd are disclosed to Ms. Williams.	1Y 187D
2018.06.26	Prospective end of the voir dire.	1Y 363D
2018.11.20	Trial set to end.

IV. POSITION OF THE PARTIES

(i) Irwin

•                    That the primary cause of the delay turns on the late disclosure of relevant particulars from Cst. Van Eerd and Cst. Jaswal central to the issue of identification.

•                    She received initial particulars relating to Cst. Van Eerd and Cst. Jaswal in early July 2016.

•                    That in the initial disclosure package there was a narrative dated May 22, 2016, by Cst. Van Eerd in which she notes that she recognizes Irwin from an identification poster and “from seeing his mug shot on numerous occasions due to his affiliation with gang members and organized crime figures I have investigated.”

•                    That in the initial disclosure package there was a narrative dated May 17, 2016, by Cst. Jaswal in which he notes that he can identify Irwin, “as I am a police officer and Christopher Irwin has been subject of numerous police encounters. I met Christopher Irwin when he was associating with members of organized crime.” His narrative notes that he last saw Irwin on July 19, 2015, during a restaurant watch check.

•                    That in correspondence to the Crown dated July 26, 2016, she advises that her initial particulars did not include notes and reports from Cst. Van Eerd and Cst. Jaswal. She requested that those materials be provided at the Crown’s earliest convenience.

•                    The Crown responded in an email to Irwin’s counsel dated October 5, 2016. In the email, the Crown confirmed receiving the request for notes and reports from Cst. Van Eerd and Cst. Jaswal. The email goes on to confirm that Irwin’s counsel had received disclosure in relation to Cst. Van Eerd’s and Cst. Jaswal’s notes and reports.

•                    On September 15, 2017, Cst. Van Eerd was interviewed by the Crown. Following her interview, the Crown sent a “will say” statement to Irwin’s counsel that reads in part:

o        Since poster came out, I have done roughly 10 interactions with [Irwin], all curfew checks except one traffic stop with PC Charles; curfew checks almost always last five seconds, but one was a five-minute chat; traffic stop lasted 5-10 minutes.

o        Recognize [Irwin] from short cropped light hair, shorter on sides; distinctive long face with pointed jawline almost jutting; slender/medium/athletic build.

•                    On September 20, 2017, Cst. Jaswal was interviewed by the Crown. Following his interview the Crown sent a “will say” statement to Irwin’s counsel that reads in part:

o        Prior to seeing the video, had only seen mug shots of Irwin;

o        Have had about 10 interactions with him: curfew checks and bar watch (interactions ranged from 2 to 10 minutes);

o        Most recent contact was either when he ran away when I was doing a bar watch, or a curfew checks; those were around beginning 2017.

•                    The existence of Cst. Van Eerd’s late disclosure only came to light 13 days prior to the commencement of the trial. The existence of Cst. Jaswal’s late disclosure only came to light 9 days prior to the commencement of the trial

•                    No explanation has been provided to her for the failure of the Crown, which includes the police, to disclose in a timely way the existence of the identification evidence that is over and above the initial disclosure materials.

•                    This is particularly concerning as it will be the intention of the Crown to use Cst. Van Eerd’s and Cst. Jaswal’s prior contacts with Irwin to bolster their identification from the nightclub CCTV evidence and still photographs downloaded from the nightclub CCTV.

•                    As of mid-January of 2018, when Irwin’s counsel filed written submissions on this application, she was still awaiting disclosure in relation to an interaction of Cst. Van Eerd had with Irwin in relation to a motor vehicle stop on April 20, 2017.

•                    That there is a high onus on the Crown to make proper and timely disclosure of all details of the recognition evidence that it intends to produce at trial. In this case, they have not done so.

•                    The right to make full answer and defence, particularly through cross-examination, are key pillars in the principles of fundamental justice as enunciated in cases such as R. v. Lyttle, 2004 SCC 5 and R. v. Oslin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595.

•                    That it is incumbent on the respondent to ensure there is proper and timely disclosure of all of the relevant recognition evidence, upon which it will rely to prevent any unwarranted constraint in her ability to cross examine.

•                    She submits that it is significant that the onus to establish the admissibility of the recognition evidence rests on the Crown. It is not for Irwin to advise that he is challenging the evidence; rather, it is for the Crown to establish admissibility. As the Crown intends to rely upon the recognition evidence, it was incumbent upon it to ensure that proper and complete disclosure is made to Irwin in a timely way.

•                    There has been no defence delay or defence waiver, and that there are no other exceptional circumstances to justify the delay and, therefore, a Judicial Stay of Proceedings should be directed by this Court pursuant to s. 24(1) of the Charter for the breach of Irwin’s s. 11(b) Charter right.

(ii) The Crown

•                    That the vast majority of the delay falls at the feet of the Crown. However, the Crown takes the position that the delay between the first scheduled trial date and the currently scheduled trial date was triggered by untimely disclosure requests and Charter applications, and exacerbated by the difficulty of co-ordinating busy counsel schedules.

•                    That all counsel for the defendants were well aware that recognition evidence formed a significant portion of the respondent’s trial time estimate.

•                    It was not until September 25, 2017, while in court, that counsel for Manj raised the prospect that there would be a Charter challenge in relation to the admissibility of the recognition evidence. At no time prior to September 24, 2017, did Irwin’s counsel request further disclosure relating to the recognition witnesses’ prior familiarity with Irwin.

•                    That despite four pre-trial conferences, the complaints about failure to disclose and anticipated Charter applications came into play just days before, and developed during the trial in September of 2017.

•                    That the Charter challenges being advanced by Irwin, Manj and Jiang are novel applications. The Crown is unaware of any case law that would render inadmissible some of the witnesses’ prior interactions with any of the accused as being in breach of any Charter right.

•                    An inference can be drawn that Irwin’s counsel did not consider any possible Charter remedy until the issue was raised by counsel for Manj. The Crown submits that Irwin’s disclosure request and subsequent Charter Notice filed October 3, 2017, are late by any standard.

•                    What happened in this case is not markedly different than the circumstances in R. v. Nazarek, 2017 BCSC 2340. In Nazarek, counsel for the accused made a disclosure application two weeks prior to the commencement of his trial. The application was granted which resulted in the trial being adjourned to a later date.

•                    In Nazarek, at paras. 92 - 93 and 98, the Court ruled that the late disclosure application exhibited a marked inefficiency and a marked indifference towards delay and, therefore, the delay fell at the feet of the defence.

•                    That the time to arraign the file from September 27, 2016, to November 10, 2016, would fall into the exceptional circumstance category. The time period from September 11, 2017, to September 25, 2017, would fall into the exceptional circumstance category as counsel for Nguyen was not available.

•                    Otherwise the vast majority of the delay between arraignment and the commencement of the trial was institutional and should count against the Jordan ceiling.

•                    That it is the time period between October 5, 2017, and the anticipated last day of trial of November 20, 2018, which is the most significant delay. This, the Crown submits, is entirely due to the inaction or unavailability of counsel for Irwin’s co-accused, and supported by the JCMs’ scheduling memos.

•                    It is this period of delay that it submits should be categorized as an exceptional circumstance as it was entirely out of the control of the Crown.  The delay was the cost of doing business.

•                    It does not submit that Irwin’s counsel was inactive or unavailable to establish continuation dates. Indeed, in the Crown’s Supplemental Chronology it notes that between November 1, 2017, and January 2, 2018, there were “email communication between counsel regarding time required, and the dates available, for closing arguments. In general, Ms. Williams responds promptly with her time estimate and availability, but as of January 2, 2018, counsel for Johnson had still not provided his availability.”

•                    It took proactive steps to move the file forward after October 5, 2017, through repeated efforts to discuss potential delays with all counsel and with the Court.

•                    To mitigate delay it applied to sever Johnson, one of the other accused, in an effort to eliminate his counsel’s schedule from the mix. The application was opposed by all counsel and denied by the Court. In particular, it noted that Irwin’s counsel took the position that “the interests of justice in having the trial proceed together was far greater than the 11(b) rights of the accused”: para. 41 of Crown Submissions.

•                    That the chronology of this case demonstrates that it, “responded promptly and cooperatively to the late disclosure requests, made considerable efforts to keep the trial going during the dates scheduled for trial, and when that failed, to minimize the delay that would follow”: ibid., at para. 44.

•                    Finally, while this case does not involve an inordinate amount of trial or preparation time, complexities arose as contemplated in Jordan because the delay was reasonably unavoidable and the facts would establish that it did everything it could to mitigate the delay.

V. ANALYSIS

(i) Calculation of Overall Delay

(ii) Calculation of Waived Delay by Irwin

(iii) Calculation of Delay Caused by Irwin

In the Van Eerd interview summary provided on September 15, 2017, she refers to a traffic stop of Mr. Irwin. Please provide complete disclosure of this incident including all notes, reports, and dispatch logs, so then I can determine what, if any, position to take with respect to the admissibility of this identification evidence.

MS. WILLIAMS:  With respect to the possibility of a Charter application for Mr. Irwin, My Lord, it depends upon the disclosure that I'm going to receive from my friend.  As I stated earlier, I just received a will say about a week ago which provided a new observation of which there had been no disclosure made.  So I need to see that disclosure first before I can advise whether there will be a Charter application.  And that relates directly to witness number five, P.C. Van Eerd.

(Transcript, September 25, 2017, p. 89, ll. 29-38)

[14] … The Crown's obligation to disclose all relevant information in its possession to an accused is well established at common law and is now constitutionally entrenched in the right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms. The necessary corollary to the Crown's disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown.

[84] The duty to disclose the fruits of the investigation into the alleged criminal conduct of Irwin rests with the Crown and the police. Counsel for the applicant could not have requested that which he did not know previously existed and yet ought to have been disclosed as part of the disclosure package.

[85] The Crown and the police have a duty to disclose. These obligations, including defence counsel’s corresponding responsibility to request disclosure, were thoroughly canvassed by Arnold J. in R. v. Apostol, 2016 NSSC 241. In summary, those obligations include:

•                    The duty of the Crown to disclose all information reasonably capable of affecting an accused’s ability to make full answer and defence at an early stage: para. 59;

•                    These disclosure obligations extend to all material in the hands of the prosecuting entity. There is a corollary duty on police investigators to disclose to the Crown all relevant material in their possession: para. 60;

•                    It is widely acknowledged that the Crown cannot explain the failure to disclose relevant materials on the basis that the investigating police force failed to disclose it to the Crown: ibid;

•                    Recognizing the importance of an accused in seeking disclosure, an accused will often be justified in seeking an adjournment, or refusing to proceed to the next step in the proceeding, where outstanding disclosure consists of material that is relevant and significant to the Crown’s case: para. 64;

•                    The Crown is not a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. As such, when the Crown is put on notice of the existence of relevant information they simply cannot disregard the matter: para. 65;

•                    As officers of the Court, defence counsel have an obligation to pursue disclosure diligently. When defence counsel becomes aware of a failure to disclose, from other relevant material produced by the crown, then defence counsel must not remain passive in the face of that information. They must diligently pursue disclosure: para. 66.

[86] There is no suggestion in this case that counsel for the applicant became aware from other disclosure material of the existence of ITO #2. Rather, it was the Crown whom ought to have known of the existence of ITO #2 in their preparation for trial.

(iv) Exceptional Circumstances

[87] This was not a simple proceeding. It contains many of the badges of complexity noted in Jordan. The charges concerned a multi-party conspiracy over several months in British Columbia, Ontario, and California. The parties reserved five weeks for pre-trial voir dires and four weeks for the jury trial. Disclosure was voluminous, consisting of 60,000 pages of material, plus 250,000 pages of wiretap conversations. Many of the conversations were in Cantonese or Punjabi. Each accused was individually represented.

[94] I find that exceptional circumstances arise from the complexity of this case. The time the case has taken was justified. I find the delay to be reasonable and would not issue a stay. I need not therefore consider the transitional provisions.

(v.) Extraordinary Events

(vi.) Transitional Exceptional Circumstances

VI. CONCLUSION

_____________________________

The Honourable Judge G. Rideout

Provincial Court of British Columbia