IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Hunter asserts his right to be tried within a reasonable time was violated. In response, the Crown argues Mr. Hunter waived delay, in the alternative, the Crown argues discrete events created the delay and in the further alternative, the Crown argues the actions of the defence created the delay.

[2]           On April 7, 2017, Mr. Hunter was charged with drug offences. Thereafter, he retained counsel and a trial was scheduled for February 26, 2018. Months before the date scheduled for trial, counsel withdrew. Accordingly, on the first day of trial Mr. Hunter appeared without counsel, therefore and with the help of duty counsel, he and duty counsel appeared in court and applied for an adjournment.

[3]           During the adjournment application, duty counsel informed the court that he had explained what waiving delay was and that Mr. Hunter was prepared to waive delay. The Crown informed the court that they were ready to start the trial and they opposed the adjournment. Significantly, there remained outstanding disclosure, specifically; the expert materials, the certificates of analyst and an officer’s notes (“disclosure material”). At no time did the Crown advise Mr. Hunter, duty counsel, or the court that there was outstanding disclosure. The court granted the adjournment.

[4]           A second trial date was scheduled. Nine weeks before this date the Crown tried to serve Mr. Hunter with the disclosure material. Six days before the trial, the Crown ultimately managed to serve Mr. Hunter. On this date and after discussing the matter with the Crown, Mr. Hunter spoke to duty counsel. Mr. Hunter decided he wanted to adjourn his trial so he could retain counsel.

[5]           Mr. Hunter’s matter was added to the court’s list at which point Mr. Hunter and duty counsel applied to adjourn the trial. During this application, duty counsel informed the court that Mr. Hunter was waiving his Jordan rights and the Crown indicated they were not taking a position on the application given the waiver. The Crown also indicated they were ready to proceed if the adjournment was not granted. The court granted the adjournment and the matter was scheduled for a third trial date.

[6]           The court heard Mr. Hunter’s s.11 (b) application on the first day of the third trial date.

[7]           Counsel agree the total delay at that time was 22 months, 23 days thus exceeding the presumptive reasonable ceiling of 18 months.

[8]           This court must determine if any delay should be deducted from the total delay. Then, and if delay is deducted, it must be determined if the net delay falls below the presumptive ceiling. These determinations will be guided by resolving the following:

[9]           In R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31, the court established a framework for determining if a delay violates the right to be tried within a reasonable time as guaranteed by s.11 (b) of the Charter. In R. v. Coulter, 2016 ONCA 704, the court summarized the Jordan framework and at paras. 32-41 the court stated:

[10]        Counsel filed various materials, including affidavits from Mr. Hunter and Rashieka Thillainadarajh, legal assistant with the Public Prosecution Service of Canada. The Crown cross-examined Mr. Hunter. Finally, and attached to these reasons is Appendix 1 which is an agreed chronology.

[11]        Once charged, Mr. Hunter retained counsel and at Mr. Hunter’s instructions a trial date of February 26, 2018 was scheduled. Prior to this date, Mr. Hunter’s counsel withdrew leaving him without representation.

[12]        Mr. Hunter had not retained new counsel by the first day of trial, so, on the first day of trial, he decided to adjourn his trial. Mr. Hunter therefore approached duty counsel and asked for assistance. Duty counsel informed Mr. Hunter that there was a possibility that he would have to waive his “Jordan rights”. It was explained to him that there was a set period of time for a matter to be brought before a judge and Crown’s failure to do so can cause the judge to throw the case out. Duty counsel told Mr. Hunter that the only way he could get an adjournment was likely to waive this right.

[13]        Mr. Hunter and duty counsel appeared in court and duty counsel informed the court that he had explained to Mr. Hunter what waiving delay meant and specifically that Mr. Hunter could not come back six, seven, or eight months later, and say, “Hey it took too long to get to my trial.” In response, the Crown informed the court they opposed the adjournment and they were ready to proceed. The court granted the adjournment.

[14]        Months after the adjournment, Mr. Hunter learned that disclosure had been outstanding when he adjourned his trial. Had Mr. Hunter known this when he applied to adjourn his trial he would not have waived delay.

[15]        As for the second adjournment, 6 days before trial Mr. Hunter met with the Crown who provided him with the outstanding disclosure. Mr. Hunter informed the Crown that he did not have a lawyer and the Crown suggested that he speak to duty counsel for the purpose of obtaining an adjournment. Mr. Hunter then met with duty counsel. He explained that the Crown had just given him disclosure and duty counsel told him that the Crown had an obligation to disclose the materials in advance of trial. Thereafter, Mr. Hunter and duty counsel spoke for approximately one minute. Duty counsel told Mr. Hunter that he would apply for the adjournment but he would be required to waive delay.

[16]        Duty counsel and Mr. Hunter then appeared in court and applied for an adjournment. During this application, duty counsel informed the court that Mr. Hunter was waiving his Jordan rights. The Crown informed the court that they had just given Mr. Hunter disclosure. In light of the waiver the Crown took no position on the adjournment application and they informed the court that they were ready to start the trial. The Crown also acknowledged the complexity of the matter for a self-represented accused.

[17]        When Mr. Hunter waived delay on this occasion he did not know that the Crown was required to disclose all relevant expert reports at least 30 days before trial. Had he known this he would not have waived delay.

[18]        The affidavit filed by Ms. Thillainadarajh, legal assistant for the Crown, speaks to the efforts the Crown made in trying to serve Mr. Hunter with the disclosure materials. In this regard, on February 13, 2018, (thirteen days) before the first scheduled trial, the Crown began trying to serve Mr. Hunter with documents. The first attempt was not successful because Mr. Hunter’s name did not appear on the building directory where the Crown believed that he was living.

[19]        Although, Mr. Hunter appeared in court on February 26, and March 22, the Crown did not serve him with the disclosure materials. Rather, on July 12, 2018, and despite having received a new Burnaby address for Mr. Hunter, the Crown couriered the disclosure materials to Mr. Hunter’s old address. The efforts to serve Mr. Hunter on this occasion did not succeed.

[20]        On July 18, 2018, the Crown tried to serve Mr. Hunter at the Burnaby address. Unfortunately, Mr. Hunter had moved to Vancouver and although, the Crown did not know his new address, Mr. Hunter had given his new address to his bail supervisor. When service was attempted in Burnaby, arrangements were made for Mr. Hunter’s ex-roommate to sign for the disclosure. Although, Mr. Hunter’s ex-roommate signed for the disclosure he did not give it to Mr. Hunter.

[21]        On July 30, 2018, the Crown contacted Mr. Hunter in order to confirm that he had received the disclosure. Mr. Hunter informed the Crown that he had not received the disclosure. Mr. Hunter then provided the Crown with his Vancouver address.

[22]        On July 31, 2018, the Crown tried to serve Mr. Hunter but they were unsuccessful. Arrangements were then made to serve Mr. Hunter on August 3, 2018 however, Mr. Hunter’s son had a medical incident thus attempts to serve Mr. Hunter on this date were unsuccessful and in the result the package was returned to the Crown on August 6, 2018.

[23]         Thereafter, efforts to serve Mr. Hunter remained dormant until August 28, 2018 at which point Mr. Hunter contacted the Crown via email and the Crown responded by emailing the disclosure to Mr. Hunter.

[24]        Defence delay has two components, delay waived by the defence and delay caused solely by the conduct of the defence. At paragraph 61 of Jordan, the court made the following comments regarding delay waived the defence:

[25]      In R. v. S.D., 2017 ONSC 4565, the court canvassed issues related to the waiver of a right. At paras. 43 – 46 the court observed:

[26]      In R. v. Giles, 2017 BCSC, Madam Justice Ross commented on the components of a valid waiver. At paragraph 7 she stated:

[27]        Dealing with Mr. Hunter’s first waiver. I am satisfied that Mr. Hunter clearly and unequivocally waived delay; however, I am not satisfied that the waiver was fully informed. The transcript shows that duty counsel did not fully explain the principles related to the right to trial within a reasonable time. Specifically, duty counsel advised Mr. Hunter that Crown had a set period of time within which to bring a matter before a judge or the judge could throw the case out. The correct information is, it is not when the case is brought before a judge, rather, it is when the case is anticipated to conclude that forms the delay calculation. I also observe that Mr. Hunter was not told that the presumptive ceiling was 18 months, or how waiving delay would affect the presumptive ceiling. Without this information, it would have been impossible for Mr. Hunter to appreciate how waiving delay affected his right to a trial within a reasonable time.

[28]        In addition to the above, I note Mr. Hunter waived delay without knowing that there was outstanding disclosure. Had Mr. Hunter known about the Crown’s disclosure obligations he would not have waived delay. Not being told about the outstanding disclosure is significant, this is because Mr. Hunter would have likely received the adjournment without waiving delay.

[29]        I now turn to the second waiver. I am satisfied that the waiver was clear and unequivocal. I am not satisfied that the waiver was fully informed. This is because duty counsel told Mr. Hunter that he was required to waive delay in order to get the adjournment. There is nothing to suggest that a waiver was a condition precedent to obtaining an adjournment. Moreover, I observe that duty counsel was aware that Mr. Hunter had just been handed disclosure material, thus, at a minimum and given the 30 day advance service requirement of expert information, the trial could have commenced but not concluded. Hence, waiver of delay was not an absolute requirement for an adjournment.

[30]        For the above reasons, I find that Mr. Hunter’s waivers were not fully informed. Specifically, he did not know the impact that waiving delay would have on his right to be tried within a reasonable time. I also find that that Mr. Hunter was wrongly led to believe that he had to waive delay in order to adjourn his trial. Given the state of the disclosure, the complexity of the matter, and the Crown’s involvement in failing to timely disclose the materials, Mr. Hunter should not have been (on the first occasion) presented with the scenario that he had to waive delay without the Crown informing the trial judge that the late disclosure was the fault of the Crown.

[31]        Discrete events fall under the category of exceptional events. These events are reasonably unforeseeable or reasonably unavoidable. They are events that are outside of the Crown’s control and events that the Crown cannot reasonably remedy when they occur: Jordan, para. 69.

[32]        Medical or family emergencies will typically qualify as discrete events, as will cases requiring extradition from foreign jurisdictions. Similarly, trial events such as the unexpected recanting witness, or circumstances where despite the best efforts of all, the trial goes longer than reasonably expected: Jordan, paras. 72 – 73.

[33]        Finally, most delays caused by a discrete event should be subtracted from the net delay, except for those discrete events, wherein the Crown or the system could have reasonably mitigated the delay: Jordan, para. 75.

[34]        The Crown argues that the difficulty in serving Mr. Hunter was a discrete event and therefore the related delay should be deducted from the net delay. Counsel for Mr. Hunter disagrees; he argues the Crown was in control of the disclosure and that their lack of action created the delay.

[35]        I find the delay in serving Mr. Hunter was not a discrete event; rather, all of the problems were avoidable. Specifically, and despite having many opportunities to serve Mr. Hunter, the Crown chose to take no steps to serve him until approximately 6 weeks before the start of the second trial. The Crown bypassed several opportunities to serve Mr. Hunter, notably, before the first trial date, when Mr. Hunter attended his first day of trail, and when Mr. Hunter made various personal court appearances.

[36]        As for the Crown having difficulty locating Mr. Hunter’s address, if the Crown had served Mr. Hunter at the first opportunity there would not have been any issue finding his address. Moreover, I am surprised the Crown experienced difficulties finding Mr. Hunter’s address. In this regard, he was on bail with a condition requiring him to provide his residential address to a bail supervisor. All the Crown had to do was phone Mr. Hunter’s bail supervisor.

[37]        An example of defence delay is when the court and the Crown is ready to start the trial but the defence is not. In such circumstances, the resultant delay should be attributed to the defence: Jordan, para.64.

[38]        The Crown argues, that the Crown and the court were ready to start Mr. Hunter’s trial and that he adjourned to get counsel, thus, the delay incurred should be identified as defence delay. In stating their position the Crown concedes they failed to provide Mr. Hunter with the expert evidence information within 30 days of Mr. Hunter’s trial as required by s. 657.3 (3) of the Code. Despite this, the Crown argues the Crown and the court were ready to start Mr. Hunter’s trial and if necessary, a mid-trial adjournment could have been granted thus giving Mr. Hunter an opportunity to prepare for the expert witness. In support, the Crown points out s.657 .3 (4) (a) of the Code contemplates circumstances where the timelines for the disclosure of expert evidence information had not been complied with and permits an adjournment so the other party could prepare for cross-examination.

[39]        The Crown argues that, R. v. Ratneswaran, 2013 ONSC 667, R. v. James, 2018 BCSC 1114 and R. v. Hunter, 2018 ABCA 117 supports their position. Specifically, these cases demonstrate that a breach of the disclosure timeline does not automatically entitle the other party to an adjournment of the entire trial; rather the appropriate course is to start the trial and then permit an adjournment to allow preparation for cross-examination of the expert.

[40]        Counsel for Mr. Hunter acknowledges that s.657. 3 (4) (a) of the Code, permits the granting of an adjournment prior to the cross-examination of the expert, however, to have done so in the instant matter would have been unfair given that Mr. Hunter was unrepresented.

[41]        After considering all of the evidence, I am not prepared to find that the adjournments qualify as “defence delay.” On the first day of trial the Crown indicated to the court that they were ready to proceed. In my view “ready to proceed” means that the Crown is ready to start and able to complete the trial as scheduled. On the first trial date the Crown may have been ready to start the trial but because of the outstanding disclosure (one of the officer’s notes, the certificates, and the expert information) the Crown could not have completed the trial as scheduled. Hence, and although court was advised that the Crown was ready to proceed; in the truest sense the Crown was not ready to proceed with the matter through to completion.

[42]        As for the second adjournment, although the Crown stated that they were ready proceed, in my view if the trial had started it would have been unfair to Mr. Hunter. Specifically, the matter was complex and Mr. Hunter was unrepresented. Further, as for the Crown’s submission that the trial could have started with some evidence and then adjourned so Mr. Hunter could have prepared to cross-examine the expert, I find this would have also been unfair to Mr. Hunter. This is because, an effective attack on the expert’s opinion was linked to undermining the evidence upon which the opinion was based. Accordingly, a skilful cross-examination of all those police witnesses whose evidence was critical to the expert’s opinion was essential. In the circumstances, an adjournment was necessary to prepare for the expert and the supporting witnesses, hence, the trial was not ready to fairly proceed.

[43]        Finally, I have considered the authorities relied on by the Crown, however, they involved circumstances where the accused was represented by counsel and situations where the cross-examination of other witnesses was not critical to attacking the expert’s opinion.

[44]        I find that the total delay exceeds 22 months and 23 days. This delay is above the presumptive ceiling. The Crown has failed to rebut this presumption. Accordingly, Mr. Hunter’s right to be tried within a reasonable time was violated. Therefore, and pursuant to s. 24 (1) of the Charter, I direct that a judicial stay of proceedings be entered.