This website uses cookies to various ends, as detailed in our Privacy Policy. You may accept all these cookies or choose only those categories of cookies that are acceptable to you.

Loading paragraph markers

R. v. Steen, 2019 BCPC 99 (CanLII)

Date:
2019-04-09
File number:
93560-3C
Citation:
R. v. Steen, 2019 BCPC 99 (CanLII), <https://canlii.ca/t/j0c5p>, retrieved on 2024-03-29

Citation:

R. v. Steen

 

2019 BCPC 99 

Date:

20190409

File No:

93560-3C

Registry:

Port Coquitlam

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

     

 

 

 

 

 

REGINA

 

 

v.

 

 

GARRICK WILLIAM STEEN

 

 

BAN ON PUBLICATION - SECTION 486.4(2) and 517(1) C.C.C.

 

 

     

ORAL REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE P. JANZEN

 

 

 

Counsel for the Crown:

C. McPherson, Q.C.

Counsel for the Defendant:

A. Glouberman

Place of Hearing:

Port Coquitlam, B.C.

Date of Hearing:

March 18, 19, 26, April 9, 2019

Date of Judgment:

April 9, 2019

 

 


[1]           THE COURT:  Garrick William Steen has applied for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (the "Charter"). He claims that his right under s. 11(b) of the Charter as a person charged with an offence to be tried within a reasonable period of time has been breached. The only remedy available for such a breach is a stay of proceedings.

[2]           The Information before me is 93560-3-C. It is comprised of nine counts and was sworn on April 26, 2017. The Crown has elected not to proceed with Counts 3 and 5.

[3]           Mr. Steen was initially charged on March 6, 2015, with one count of possessing child pornography and one count of committing extortion (Information 93560-1). These counts concerned the complainant R.S. The Crown agrees with the defence that the court should enter a stay of proceedings on these counts as they lie well outside the reasonable time to trial.

[4]           Counts 4, 6 and 7 are two counts of possession of child pornography and a count of extortion, all involving the complainant H.G. and all occurring between March 31 and April 8, 2014.

[5]           Mr. Steen was initially charged with these counts on April 15th, 2016 (Information 93560-2-C).

[6]           The defence asserts that the date when these charges were initially brought is irrelevant. They form part of one Information and one trial will deal with all counts on the 3-C Information. Hence, the period of delay begins on March 6, 2015, when the initiating Information (93560-1) was sworn, not April 15th, 2016 when Information 2-C was sworn.

[7]           The Crown takes the position that the time to trial for these counts is neither April 26, 2017, when the 3-C Information was sworn, nor March 6, 2015, when Mr. Steen was initially charged with any offence included in the 3-C Information. It is April 15, 2016, when Mr. Steen was first charged with the specific offences that became Counts 4, 6 and 7.

[8]           Regardless of whether I consider the delay to run from March 6, 2015 or April 15, 2016, I have concluded that the delay is unreasonable and I will be entering a stay on Counts 4, 6 and 7 for the reasons that follow.

[9]           On April 26, 2017, Information 93560-3-C was brought. It included two new charges (Counts 1 and 2) involving a new complainant, C.T., and allegations of sexual assault and sexual touching on October 18, 2013.

[10]        Whether these charges should be stayed turns on when the time to trial begins. Because I have concluded that the time to trial starts on April 26, 2017, not March 6, 2015, for the reasons that follow I will be dismissing the defence application under s. 11(b) respecting Counts 1 and 2.

The Legal Framework

[11]        Section 11(b) of the Charter says that:

Any person charged with an offence has the right to be tried within a reasonable time.

[12]        In the case of R. v. Jordan, 2016 SCC 27, published on July 8, 2016, the Supreme Court of Canada established a new framework for determining whether the rights of a person under s. 11(b) have been violated. In doing so, it replaced an earlier framework established in the case of R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771. At paragraph 20 the court set out the principles underlying the s. 11(b) right and I quote:

Trials within a reasonable time are an essential part of our criminal justice system’s commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.

[13]        At paragraph 105 the court set out its own summary of the new framework and how it was to be applied, and I quote:

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

Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

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

[14]        The court stated that this framework was and was meant to be a significant shift from past practice. The court identified two components of defence delay that needed to be subtracted from when the accused was charged with the offence to when the accused was tried for the offence. The first was delay waived by the defence. Such waiver could be explicit or implicit but had to be clear and unequivocal. The second was delay caused solely by the conduct of the defence.

[15]        At paragraph 63 of R .v. Jordan, the court described it:

This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay. . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28).

[16]        As to the argument available to the Crown that this case was particularly complex, the Crown described this case as only moderately complex, not particularly complex, and clarified that it would not be arguing that the delay in this case was reasonable as a result of complexity. I agree with the Crown's characterization.

Chronology

[17]        The defence set out a detailed chronology in its written argument that was accepted by the Crown. I reproduce it with some modifications below.

March 6, 2015

[18]        Mr. Steen is arrested and a search warrant is executed on his residence. Information 93560-1 is sworn, alleging offences against one complainant, R.S. The police release Mr. Steen on an Undertaking to Appear containing various terms and conditions.

March 26, 2015

[19]        March 26, 2015 is the first scheduled court date in Port Coquitlam Provincial Court. Mr. Steen has already retained counsel, Ms. P. Initial disclosure is not yet available. The proceedings are adjourned to April 9, 2015.

April 9, 2015

[20]        The parties appear in court. The proceedings are adjourned from time to time.

April 26, 2015

[21]        The parties appear in court. Ms. P advises the court that she is having resolution discussions with the Crown. The matter is adjourned to July 25, 2015.

July 25, 2015

[22]        The parties appear in court. Both Ms. P's articling student and Mr. S appearing for the Crown advise the court the resolution discussions are active and ongoing. The matter is adjourned to August 13, 2015.

August 13, 2015

[23]        The parties appear in court. Ms. P's articling student seeks a further adjournment to September 3, 2015, to fix a date. The Crown consents.

September 3, 2015

[24]        The parties appear in court. Information 93560-1 is arraigned. A three‑day trial is scheduled for April 20 to 22, 2016. These are the first dates offered by the Judicial Case Manager (“JCM”).

December 28, 2015

[25]        A.A., a civilian police employee, is assigned to analyze the hardware seized from Mr. Steen's residence on March 6, 2015. Evidence led at trial establishes that the first forensic analysis/inspection of the contents of any of Mr. Steen's hardware occurs on this day.

March 16, 2016

[26]        A.A. prepares a 55-page Technical Examination Report containing an analysis of the data extracted from Mr. Steen's Acer laptop and Hitachi hard drive. The forensic analysis of Mr. Steen's hardware is reassigned to Cpl. H.

March 23, 2016

[27]        The Crown either mails or provides to Ms. P the Technical Examination Report of A.A.

March 30, 2016

[28]        Cpl. H prepares a 527 page Supplemental Technical Examination Report involving further analysis of the data extracted from Mr. Steen's Acer laptop and Hitachi hard drive. This report will result in the Crown charging Mr. Steen with all additional offences. It is unclear on what date this report is disclosed to defence counsel.

April 2, 2016

[29]        Cst. O meets with H.G. and obtains a statement from her.

April 14, 2016

[30]        Information 93560-1, which is set for a three-day trial on April 20 to 22, 2016 is called ahead into court by the Crown. The Crown seeks an adjournment of the trial, indicating that new charges will be laid on the basis of new disclosure. The court accedes to the Crown's request, noting that "because of the late disclosure and the late charges you're not able to proceed on that date and that would be prejudicial to Mr. Steen, in any event, to try to force Ms. P on at that time." The April 20 to 22, 2016 trial dates are vacated and Information 93560-1 is adjourned to April 20, 2016 for scheduling purposes.

April 15, 2016

[31]        The Crown lays Information 93560-2-C, adding three counts and one complainant, H.G., to the existing charges. The Crown proceeds by indictment and issues a warrant for Mr. Steen's arrest. Mr. Steen attends court voluntarily and the warrant is deemed executed. Mr. Steen is released on an Undertaking To Appear containing various terms and conditions. Informations 93560-1 and 93560-2-C are adjourned to April 20, 2016 for scheduling purposes.

April 20, 2016

[32]        The parties appear in court. The Crown notes that by virtue of the newly laid charges, a substantial amount of new disclosure will need to be provided to Mr. Steen's counsel. Ms. P withdraws as counsel. The proceedings are adjourned to May 20, 2016 for Mr. Steen to retain new counsel.

May 16, 2016

[33]        A third Technical Examination Report, 581 pages in length, is prepared by Cpl. H, containing an analysis of the data extracted from Mr. Steen's iPhone 4S. This report is not provided to defence counsel until August 31, 2018, four days before the trial on Information 93560-3-C is scheduled to begin and more than two years and three months after the report was prepared.

May 20, 2016

[34]        Mr. Steen retains new counsel immediately, Ms. N. Ms. N attends court and the Crown provides her with additional disclosure materials which likely include the March 30, 2016 Technical Examination Report. The matter is adjourned to June 20, 2016.

June 16, 2016

[35]        Ms. N sends written correspondence to the Crown office requesting disclosure of the March 5, 2015 search warrant, executed on Mr. Steen's home on March 6, 2015, and the March 5, 2015 Information to Obtain filed in support of the search warrant application.

June 20, 2016

[36]        The parties appear in court. The matter is adjourned to July 11, 2016.

July 8, 2016

[37]        The Supreme Court of Canada releases its decision in R. v. Jordan.

July 11, 2016

[38]        The parties appear in court. Proceedings are adjourned from time to time.

July 24, 2016

[39]        Cst. O meets with L.R. and obtains a statement from her.

September 2, 2016

[40]        Cst. O meets with C.T. and obtains a statement from her.

September 15, 2016

[41]        The parties appear in court. Ms. B for the Crown indicates that the matter is "getting kind of old."  The Crown advises the court that she and Ms. N are discussing a possible disposition but before those discussions can continue, the Crown will be providing defence counsel with additional disclosure. To that end, the Crown will be applying to vary a March 5, 2016 order sealing all records, including the Information to Obtain ("ITO") pertaining to the search warrant issued in relation to Mr. Steen's residence. This is presumably in response to the request made by Ms. N three months earlier on June 16, 2016. The Crown advises the court that she will disclose the unsealed materials to Mr. Steen's counsel when she files an application for variance of orders after which resolution discussions can continue. The proceedings are adjourned to October 12, 2016.

October 12, 2016

[42]        The parties appear in court. The Crown advises that she has yet to apply to unseal the above-noted materials indicating, "I've been very busy."  The matter is adjourned to November 3, 2016.

October 21, 2016

[43]        The Crown files an application for a variance of orders and affidavit requesting the unsealing of the above-noted materials. The requested order is granted that day.

November 1, 2016

[44]        Ms. N is sent new disclosure, including the recently unsealed ITO and related materials.

November 3, 2016

[45]        The parties appear in court. Ms. N advises that she has been provided additional disclosure. She asks that the proceedings be adjourned to November 28, 2016. The Crown agrees. The Crown PNI's Information 93560-1 to Information 93560-2-C.

November 28th, 2016

[46]        The parties appear in court. Ms. N's articling student asks that the matter be adjourned to December 19, 2016, as Ms. N has recently received disclosure, has "just received the particulars in full in this matter" and will be meeting with Mr. Steen to obtain further instructions. The matter is adjourned to December 19, 2016 with the consent of the Crown.

December 19, 2016

[47]        Information 93560-2-C is arraigned. Ms. B for the Crown advises the court that, "There was a previous trial date and what happened was that there was a bunch of disclosure that was discovered. I think that the disclosure would add days to the trial time estimate. The Crown estimates that the trial will take five days."  Ms. N's articling student agrees with the Crown's time estimate of five days and elects Provincial Court Judge on Mr. Steen's behalf. A five-day trial is scheduled for September 25 to 29, 2017. These are the first dates offered by the JCM.

April 25, 2017

[48]        The Crown mails new disclosure to Ms. N, including a CD containing 409 pages of materials, a DVD of audio files and two DVDs of video statements. A large component of these materials relate to additional charges that will soon be approved against Mr. Steen.

April 26, 2017

[49]        The Crown lays Information 93560-3-C adding four additional counts and two new complainants, L.R. and C.T., to the outstanding charges. The new offences predate the offences charged on Information 93560-2-C. The Crown issues a warrant for Mr. Steen's arrest.

May 3, 2017

[50]        Mr. Steen is arrested while en route to work. He makes his first in-custody appearance in Port Coquitlam Provincial Court the following day.

May 4, 2017

[51]        Mr. Steen makes his first in-custody appearance in Port Coquitlam Provincial Court. His counsel is not in attendance. The Crown indicates that she will be seeking Mr. Steen's detention on Information 93560-3-C, given that several new counts involve contact sexual offences which are different in nature from the previous charges. The Crown also indicates that Mr. Steen's counsel has advised that she is reviewing the various recently disclosed materials which are relevant to the newly laid charges. Mr. Steen is remanded in custody and the proceedings are adjourned to May 11, 2017 to set a date for Mr. Steen's contested bail hearing.

May 11, 2017

[52]        Mr. Steen appears in court and is further remanded in custody until May 18, 2017 for his contested bail hearing.

May 18, 2017

[53]        The Crown seeks Mr. Steen's detention. Mr. Steen seeks his release. The court reserves its decision until the following day, May 19, 2017.

May 19, 2017

[54]        The parties appear in court. Mr. Steen is released from custody on a recognizance with a cash deposit and a surety, as well as various terms and conditions including restriction on accessing the Internet outside of work and a curfew. Upon bail being pronounced, Ms. B for the Crown asks that the proceedings be adjourned back to the scheduled September 25 to 29, 2017 trial dates. Ms. N expresses a concern that, given the new charges, the trial will not complete within the scheduled five-day period and that a continuation will likely be required. The outstanding Informations 93560-2-C and 93560-3-C are adjourned to the dates previously set for the five-day trial scheduled to begin on September 25, 2017.

June 1, 2017

[55]        The parties appear in court. Ms. B for the Crown advises the court that Mr. Steen's bail supervisor is creating a lot of difficulties for Mr. Steen in requiring him to report on a daily basis. The Crown describes this as "oppressive."  The Crown suggests that the reporting term be amended to require Mr. Steen to report to his bail supervisor once per week on Mondays and by 4:00 p.m. of the next business day following any statutory holiday that falls on a Monday. The court endorses the proposed variation. The proceedings are adjourned to the September 25 to 29, 2017 trial dates.

September 13, 2017

[56]        Ms. N seeks an adjournment of the five-day trial scheduled to begin on September 25, 2017, waiving delay. She advises the court that "in order to make full answer and defence" the defence will be seeking the assistance of a forensic expert. She also suggests that the trial estimate should be increased, given the new counts in Information 93560-3-C. The Crown consents to the adjournment and the court grants the adjournment. The Crown PNI's Information 93560-2-C to Information 93560-3-C. A seven-day trial is scheduled for June 4 to 8 and 18 to 19, 2018. These are the first dates offered by the JCM.

November 2, 2017

[57]        Ms. N seeks an adjournment of the seven-day trial scheduled to begin on June 4th, 2018. She cites the fact that Mr. Steen's mother is unavailable on the scheduled dates and Mr. Steen, who is autistic, requires his mother's support during the trial. Defence counsel waives delay. The Crown consents to the application and the court grants the application. The proceedings are adjourned to the following day to confirm the new trial dates. A new seven-day trial is scheduled for September 4 to 7 and 10 to 12, 2018. This is the second set of dates offered by the JCM. The first dates offered beginning on August 13, 2018, are unavailable to Ms. N.

November 3, 2017

[58]        Ms. B appears in court to confirm the seven-day trial.

March 2, 2018

[59]        Ms. N appears in court to withdraw as counsel, having been hired by the Surrey Crown Counsel office. She advises the court that Mr. Steen has already retained new counsel, Ms. G, who is available for the scheduled trial dates.

June 26, 2018

[60]        Ms. G and Mr. Steen attend court seeking a variation of his Recognizance of Bail, by consent of the Crown, to add an exception to condition 9, the prohibition against using the Internet outside of work to permit Mr. Steen to access the Internet either in the continuous presence of a person approved of by his bail supervisor or in the continuous presence of legal counsel.

August 22, 2018

[61]        The Crown serves the defence with notice of its intention to call expert evidence at the upcoming trial scheduled to commence in 13 days. The late notice does not conform to the mandatory 30-day notice period required by s. 657.3(3)(a) of the Criminal Code. Section 657.3(4)(a) of the Code specifies that if the notice requirement is not complied with, the court "shall, at the request of any other party, grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross‑examination of the expert witness." Instead of availing itself of this statutory entitlement to an adjournment and thereby padding the delay record, the defence, wanting the trial to proceed without interruption, accepts the late notice and gives up its entitlement to an adjournment of Cpl. H's evidence.

August 31, 2018

[62]        Four days before the trial is scheduled to begin, defence counsel is provided with a third Technical Examination Report, 581 pages in length, which had been prepared by Cpl. H over two years and three months earlier on May 18, 2016. The report includes hundreds of pages of Kik discussions. Despite the late disclosure which would justify an adjournment of the trial, the parties agree that Cpl. H will not testify until September 11, 2018 and the complainant R.S., to whom the May 18, 2016 report relates in part, will not testify until September 10, 2018 in order to provide the defence with an opportunity to digest the report. It is intended that the proceedings will begin on September 4, 2018, as planned, even though the defence will now need to review the lengthy material in a short time frame, as without doing so it is unknown whether or how the materials will impact the trial preparations.

September 4, 2018 to September 12, 2018

[63]        Mr. Steen's Provincial Court trial begins in Port Coquitlam. The trial does not conclude within the scheduled seven-day period.

[64]        On September 7, 2018, Ms. G receives a fourth Technical Examination Report, 100 pages in length, dated September 7, 2018. This report comprises a 50 page expert report of Cpl. H, consolidating the three previous 2016 reports, including the recently disclosed report and also containing new revelations flowing from a further very recent inspection of Mr. Steen's hardware and a further evaluation of the data extracted from it and a 50‑page Kik communication between Mr. Steen and the complainant L.R., recently discovered by Cpl. H, and the recent and further review of the data extracted from Mr. Steen's iPhone 4S. The analyst's notes are not provided with the report and are requested by defence counsel. The analyst's notes are later provided to defence counsel on September 11, 2018.

September 7, 2018 and September 10, 2018

[65]        Ms. G makes submissions in court regarding the impact of the new materials on the defence case. Ms. G expresses her position and the need for an adjournment in order to preserve Mr. Steen's right to a fair trial until at least October of 2018, of the evidence of the complainant L.R., and of the cross‑examination of Cpl. H. The Crown consents and the court accedes to these requests.

[66]        On September 7, 2018, three trial continuation dates are set as follows: October 18 and 29 and November 13, 2018.

September 11, 2018

[67]        The trial continues. The judge orally and on the record canvasses the prospects of the additional sooner continuation dates of September 14 and 18, 2018. The Crown indicates that she is not available on these dates. Ms. G indicates that she is prepared to accommodate these dates.

September 12, 2018

[68]        The trial continues. The proceedings are suspended mid-morning and adjourned to October 18, 2018 when Cpl. H will continue his evidence in chief. It is understood from comments made by the Crown on the record that she will not be prepared to elicit certain testimony from Cpl. H regarding a comparison of the timing of various electronic communications until he conducts a new comparison of the data and prepares a new report in the interim period, leading to the October 18, 2018 trial continuation date. Additional trial continuation dates are set.

September 27, 2018

[69]        Defence counsel files its Notice of Application for Constitutional Remedy, Section 11(b) Delay.

October 9, 2018

[70]        Defence counsel receives by email a new 44-page statement of the complainant L.R. taken by the police on September 14, 2018.

October 15, 2018

[71]        The Crown emails defence counsel, three days before the trial is scheduled to continue, a fifth Technical Examination Report, 14 pages in length, dated October 14, 2018, prepared by  Cpl. H. The Crown had directed Cpl. H to conduct a new and further analysis of the data previously extracted from Ms. Steen's hardware and to prepare a report responding to three specific queries.

October 18, October 29 and November 13, 2018

[72]        The trial continues.

November 15, 2018

[73]        Mr. Steen's direct examination is suspended as the parties agree that the proceedings should be put over to the December 20, 2018 continuation date, in fairness to Mr. Steen, so that defence counsel can await receipt of an impending sixth Technical Examination Report that Cpl. H is preparing for the purposes of rebuttal evidence and so that Mr. Steen's direct examination does not conclude before defence counsel has had an opportunity to canvass with Mr. Steen in his direct examination any matters that may arise from the new report and from other new materials the Crown intends to rely upon in cross‑examining Mr. Steen. Additional continuation dates are set.

November 21, 2018

[74]        On October 18, 2018, a trial continuation date was scheduled for today, however, after reserving the date, the Crown advises that she is unavailable. The October 29, 2018 court appearance, today's date, was struck.

December 14, 2018

[75]        The Crown discloses to defence counsel a 46-page supplemental report authored by Cpl. H, the sixth Technical Examination Report in the proceedings to date, that it intends to introduce in rebuttal. The report is later redacted and re‑dated January 31, 2019 and is introduced at trial when Cpl. H testifies in rebuttal on February 1, 2019.

December 20 and 21, 2018 and January 21, 22 and 31 2019

[76]        The trial continues. On January 31, 2019, the Crown completes its cross‑examination of Mr. Steen and the defence closes its case.

February 1, 2019

[77]        Arguments are made on the Crown's proposed rebuttal evidence. The defence concedes several proposed areas. The court rules that the Crown may call some but not all of its proposed rebuttal evidence. Rebuttal evidence is called and completes today by way of Cpl. H's testimony and the filing of the January 31, 2019 Technical Examination Report. The trial evidence thereby concludes.

March 6 and 7, 2019

[78]        I reserve for Mr. Steen's delay application. The scheduled continuation date of February 15, 2019 is struck orally in court.

March 18 and 19, 2019

[79]        The two-day delay application is scheduled to be heard. On April 29 and April 30, 2019, oral submissions on closing argument are scheduled to be heard. After hearing closing submissions the court will need time to render a determination on the trial proper.

Issues

1.         What is the date on which Mr. Steen is charged with the offences that are Counts 1 and 2 and Counts 4, 6 and 7 on the 3-C Information for the purpose of determining whether the time to trial is unreasonable?

2.         Should any time be subtracted as defence delay, either defence waiver or waiver caused solely by the defence?

3.         If the delay of 18 months from charge to end of trial is exceeded, can the Crown rebut the presumption that the delay is unreasonable by establishing exceptional circumstances?

Analysis

Issue #1: What is the date on which Mr. Steen is charged with the offences that are Counts 1 and 2 and Counts 4, 6 and 7 on the 3-C Information for the purpose of determining whether the time to trial is unreasonable?

[80]        April 26, 2017 was the date on which Information 93560-3-C was sworn but the parties agreed that the delay does not begin to run from that date for all of the counts that are included on the 3-C Information. The parties agreed that, for those counts that were included in the original Information that was sworn on March 6, 2015 (3-C Information Counts 8 and 9) the March 6, 2015 date should be used as the date when Mr. Steen was charged. That is why the Crown conceded that Counts 8 and 9 of the 3-C Information should be stayed because Mr. Steen was not tried for those offences within a reasonable time of being charged.

[81]        As for the charges that form Counts 4, 6 and 7 of the 3-C Information, the Crown took the position that the delay runs from the date on which Mr. Steen was charged with these offences. That was April 15, 2016, as part of the 2-C Information. The defence argued that because Counts 4, 6 and 7 were added to the amended original Information and were to be tried at the same time as the original charges, delay runs from the original charging date of March 6 2015. It follows that the parties disagree as to whether delay for Counts 1 and 2 of the 3-C Information runs from the date on which the original Information was filed on March 6, 2015, or from the date when Mr. Steen was charged with these offences on April 26, 2017.

[82]        To answer this question, I first examined s. 11(b) in the context of s. 11. That section reads, and I quote:

Any person charged with an offence has the right

(a)  to be informed without unreasonable delay of the specific offence;

(b)  to be tried within a reasonable time;

(c)  not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d)  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e)  not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g)  not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h)  if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i)  if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[83]        I first note that s. 11(a) confers the right "to be informed without reasonable delay of the 'specific offence' ". This section makes clear that the Information is a means by which the accused is informed of the specific offence. Section 11(b) then bestows the right to be tried for "the offence," not an offence or all of the offences, within a reasonable time.

[84]        The accused also has the right not to be denied reasonable bail, again for "the offence," not all offences which might eventually be included on a single information. And that is what happened in this case.

[85]        The defence argued that when charged with the new offences, the accused did not get a new opportunity to change his release conditions. With respect, the original release conditions were determined to be appropriate to the offences with which he was originally charged. However, when Mr. Steen was charged for the first time in April 26, 2017, with Counts 1 and 2 involving the complainant C.T., the Crown sought his detention on the new offences. A new bail hearing was conducted on those new offences and new terms of release were imposed. In other words, the parties and the court treated these counts as new offences under s. 11.

[86]        The language in s. 11 supports that the right to be tried within a reasonable time dates to when the accused is charged with and informed of a specific offence, not any offence.

[87]        I also note that if I decide that I must go back to March 6, 2015 for all charges, then I must examine delay and the time to trial of the 2-C and 3-C charges as transitional exceptional circumstances in the application of the Jordan framework. This seems highly contrived.

[88]        The fundamental argument of the defence is that the right of Mr. Steen is to a trial within a reasonable time of any offence with which he is charged and for which he has not yet been tried. By filing additional charges but using the same information, the Crown seeks the benefit of one trial for a number of similar charges. The Crown has the discretion to proceed in that way but must ensure that the time for that one trial is reasonable.

[89]        I agree with the defence that by proceeding with one trial, the Crown cannot thereby unreasonably delay a trial of the specific offences with which he was charged on March 6, 2015, but I do not agree that it follows that by using an amended Information to first inform Mr. Steen that he was charged with other specific offences on April 15, 2016 and with additional specific offences on April 26, 2017, that the trial of those offences was thereby required to be conducted within 18 months of March 6, 2015. That date would be September 6, 2016, a date that, in the case of the new charges that were laid in April 26, 2017, preceded Mr. Steen first being charged with and informed of those specific offences.

[90]        The defence relied on a large number of cases in support of its argument. I have placed these cases into three groups and reviewed all of them very carefully.

The pre-charge delay cases

[91]        In the case of Rourke v. the Queen, [1978] I SCR 1021, the Supreme Court of Canada held that, absent an ulterior motive, courts could not and should not monitor how an investigation is carried out.

[92]        In R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 SCR 863, Chief Justice Lamer said that pre-charge delay was relevant to s. 7 and s. 11(d) of the Charter but not to the right of a person who has been charged with an offence under s. 11(b). The s. 11(b) right belongs only to a person who has been charged with an offence and who has been informed of the specific offence.

[93]        In the recent case of R. v. Moosomin, 2017 SKQB 182, the Saskatchewan Court of Queen's Bench reiterated in the Jordan context that total delay runs from when the charge is laid and that pre-charge delay must not be counted in calculating the length of the delay.

Cases with similar facts but no analysis of this issue

[94]        The originating Information in the Jordan case was dated December 18, 2008 and contained four counts that involved Mr. Jordan. The December 24, 2018 2-C Information contained two additional counts that named Mr. Jordan. The 3-C Information, dated February 20, 2009, included six additional counts that named Mr. Jordan. Delay was calculated as running from the date that the first Information was laid for all counts. The total delay from the original charge date of December 18, 2008 to the end of the trial was found to be 49.5 months. The date from which delay should be counted for all counts was not discussed by the B.C. Court of Appeal or the Supreme Court of Canada but they implicitly accepted the decision of the trial judge.

[95]        A review of the decision of the trial judge who heard Mr. Jordan's application for a stay because of unreasonable delay, R. v. Jordan, 2012 BCSC 1735, indicates that the length of the delay was calculated to run from the date of the first Information, December 18, 2008, to the date when the trial was scheduled to complete, February 1, 2013. That was the period of 49.5 months that was confirmed by the Supreme Court of Canada.

[96]        Before the trial judge, the Crown argued that all the period from December 18, 2008 to February 20, 2009 should not factor into the analysis at all and proposed that the time period for all charges should run from the later February date. The argument that was expressly rejected by the trial judge was that the delay for all charges should have run from the date of the 3-C Information. The argument that is being made by the Crown in this case was not made or considered in the Jordan case.

[97]        In the case of R. v. Cooper, 2017 BCPC 11, the accused was charged with seven counts on November 29, 2013 that included one count of possession of marihuana for the purpose of trafficking and six counts involving the possession of  restricted or prohibited weapons.

[98]        On January 9, 2015, he was charged with an eighth count on a 2-C Information. It was for trafficking in marihuana on October 25, 2013.

[99]        I note that the accused had been charged with seven of the eight counts on the much earlier date and that the accused had already been charged with possession of marihuana for the purpose of trafficking on the earlier date. The new charge was the related offence of trafficking in marihuana and the date when the offence was alleged to have been committed preceded the date of the original charges.

[100]     The trial judge utilized the November 29, 2013 date as the start date for calculating delay for all counts without any discussion of whether a different date should be used for the eighth count. It appears from a review of the reasons for decision that the Crown did not argue that the eighth count should be treated differently when calculating the period of delay.

[101]     In the case of Kidd v. the Queen, 2014 ONSC 2393, the Morin test was applied to the defence application under s. 11(b) and s. 24(1) of the Charter. The accused was charged with a large number of sexual offences involving children, including sexual contact and possession of child pornography. The original Information containing 16 counts was sworn on November 8, 2012. A further Information was sworn in December 2012, adding 14 counts that included creating and possessing child pornography and voyeurism. The exact date of the December 2012 Information is not identified in the decision. On January 31, 2013, a replacement Information was sworn that included a total of 34 sexual offence charges and one count of criminal harassment.

[102]     The total delay from November 8, 2012 until the completion of the trial was eight days short of two years with defence attributing 21.5 months to Crown and institutional delay. The court calculated delay from the earliest date but it was still found not to be unreasonable and the defence application for a stay of proceedings was dismissed.

[103]     Again, it appears from the decision that the Crown did not challenge that the earliest date should be utilized to calculate delay for all offences and the court utilized the earliest date without any discussion of different dates for different offences.

[104]     I note that the court dismissed the application utilizing a calculation of delay that most favoured the defence. In other words, the calculation of the date from which delay should run had no impact on the outcome.

[105]     I also note that the time from when the first to the last charges were laid was eight days short of three months.

[106]     Finally, the exact calculation of total delay is far less consequential when applying the Morin framework than the Jordan framework.

The stay cases

[107]     In support of its position that total delay should be calculated from March 6, 2015 for all offences, the defence also relied on a number of cases in which the Crown stayed charges and laid the same charges at a later date. Courts consistently included the stay in their calculation of total delay and held that it ran from the date of the original charge to the end of the trial.

[108]     I accept that to not do so allows the Crown to defeat the right of a person charged with an offence to be tried within a reasonable time because the stay period of up to a year is added to what is reasonable time to trial without being counted.

[109]     In the case of R. v. Lanteigne, 2010 NBCA 91, the New Brunswick Court of Appeal concluded that if it permitted the Attorney General to stay a charge and lay the same charge later and then allowed the Crown to count the delay as running from the later charge date, it would effectively be allowing the Attorney General to use s. 579 to avoid the responsibility to bring accused persons to trial within a reasonable period of time. It found that, in these circumstances, the stay would operate as an adjournment of the trial for the benefit of the Crown without the period of the adjournment being included in the calculation of the delay to trial. To not include the stay as part of total delay would undermine the Charter rights of the accused.

[110]     The period of the stay has been included in the calculation of delay from the original charge to the conclusion of the trial in these cases despite the fact that during the stay the accused was not "a person charged with an offence" (to quote the language of s. 11(b)).

[111]     Courts have recognized that during the period of the stay the accused knew that the Crown could swear another information provided that it did so within a year of the stay. As a result, the accused continued to live his life for a year under the cloud of being charged again, a situation that undermined his right to security.

[112]     In the case of R. v Curry, 2016 BCSC 1435, Justice Holmes applied the Jordan analysis to whether a stay of proceedings should be included in the presumptive period of 30 months. At paragraph 87 she quoted from paragraph 20 of Jordan respecting the primary interest to be protected by s. 11(b). Paragraph 20 is quoted earlier in this decision.

[113]     The Crown argued that the period of the stay should not be included in the period of total delay in the application of the Jordan framework because the accused was no longer “a person charged with an offence” and his security and liberty were no longer affected. Justice Holmes pointed out that a stay was not the same thing as a withdrawal of the charges or a request that the charges be dismissed because the charges could be re-laid within a year after the stay. She found that in the case before her this was, in fact, the expectation and that, as a result, the accused continued to suffer the anxiety, distress and stigma of a person charged with an offence. Justice Holmes calculated the period of delay from the date of the original charge to the date when the verdict was rendered.

[114]     The case of R. v. A.S., 2008 CanLII 8150 (ON SC) involved the robbery and shooting of a man on April 19, 2005. Two young men were arrested and charged on May 3, 2005. A third young man was not arrested and charged until 2007. The applicant, who was a youth, was charged two weeks after the shooting with attempted murder, armed robbery and possession of a firearm.

[115]     On August 28, 2006 Crown counsel stayed the charges against the applicant.

[116]     On May 2, 2007 the Crown reinstated the stayed charges against the applicant.

[117]     On May 14, 2007, the applicant was re-arrested on the reinstated charges and three new charges: conspiracy, obstructing police and threatening. By then, the police believed the applicant was the ringleader who planned the robbery, forced one or more of the others to participate and supplied the gun. After the preliminary inquiry, the applicant was committed on charges of armed robbery, aggravated assault, possession of a firearm, conspiracy and threatening.

[118]     The court applied the Morin framework to the delay. The trial was scheduled to complete two or three weeks after the week of September 15, 2008 (between October 3 and 10, 2008). The delay was calculated to be three-and-a-half years from the date on which the original charges were laid. The time of the stay was included in the delay. No distinction was made between those charges that were laid on April 25, 2005 (armed robbery, possession of a firearm and aggravated assault) for which the accused was committed for trial and the charges that were not laid until the much later date of May 14, 2007 (conspiracy and threatening).

[119]     The parties and the court, again, only addressed the issue of whether the stay of eight months should be included in the delay. All of the charges arose out of the same incident, a planned robbery with the use of a firearm that resulted in the serious injury of a victim. It appears that the Crown did not argue that delay associated with the offences that were not charged until May 2007 should be treated differently from the initial charges. Nor did the court discuss or consider this point. However, after applying the Morin framework and utilizing the start date most favourable to the defence, the court still dismissed the application.

[120]     I do not see the period of a stay as analogous to the period from when the original charges were laid until additional charges were laid. I see the stay cases as supporting the proposition that the Crown cannot bring new charges in a 3-C Information and then argue that the delay in the case of the charges that were originally laid in the -1 information should run from the filing of the 2-C or the 3-C Information. The Crown has acknowledged that delay must be calculated from March 6, 2015 in the case of offences that were initially laid on March 6, 2015 and has invited this court to stay those charges as a remedy for the breach of Mr. Steen's Charter rights under s. 11(b).

[121]     In the case of R v. Vassell, 2016 SCC 26, the court wrote:

The Crown chose to prosecute all seven accused jointly, as it was entitled to do. But having done so, it was required to remain vigilant that its decision not compromise their s. 11(b) rights of the accused persons….

[122]     The Crown in this case chose to amend its Information and try all of these offences together at the same time. Doing so was within prosecutorial discretion. Doing so was also a sensible and efficient use of court time that ensured that the accused and all concerned were spared the additional time, expense and anxiety of a multiplicity of proceedings.

[123]     Having done so, the Crown was required to ensure that it did not compromise the s. 11(b) rights of Mr. Steen. The Crown acknowledged that it exceeded the reasonable time to bring to trial the offences that are Counts 8 and 9 on the 3-C Information.

[124]     I have concluded that, in considering whether the right of Mr. Steen has been breached under s. 11(b), I must calculate the delay as running from the date on which he was first charged with that specific offence until the conclusion of the trial.

[125]     In the case of the offences that are Counts 4, 6 and 7 on the 3-C Information, the delay runs from April 15, 2016, for a total delay of 36 months and 15 days. In the case of Counts 1 and 2 of the 3-C Information, the delay runs from April 26, 2017 for a total delay of 24 months and four days.

Issue # 2: Should any time be subtracted as defence delay, either defence waiver or delay caused solely by the defence?

[126]     Defence delay in this case included several periods of waiver.

[127]     The first period of defence waiver is the adjournment application brought by the defence two weeks before the trial was scheduled to start on September 25, 2017. The purpose of the adjournment was to allow the defence to seek the assistance of a forensic expert. Crown consented to the adjournment and the court granted the adjournment in reliance on defence counsel's explicit and unequivocal waiver in court in the presence of the accused. Waiver of delay by the defence resulted in the adjournment of the trial to June 4 to 8 and June 18 to 19, 2018.

[128]     The defence argued that this waiver was not fully informed and unequivocal. In my view, it was unequivocal. However, the defence argued that it is clear from what we know now that the Crown was, in fact, also not ready to proceed to trial. As a result, defence waiver was not fully informed and was, therefore, not unequivocal. I reject this argument.

[129]     Where the accused is represented by counsel and the accused provides counsel with instructions to waive delay and where those instructions are communicated clearly and without equivocation to Crown counsel and to the court in support of a defence application for an adjournment of the trial dates, the Crown and the court must be entitled to rely on defence waiver. The justice system must be able to hold an officer of the court to her word in any circumstance. That is particularly the case where the Jordan decision has placed so much weight on the role that defence waiver plays in the calculation of total delay.

[130]     The defence waiver in this case resulted in delay from September 25, 2017, when the trial was scheduled to commence, to June 4, 2018, the first day of the new trial dates. That is delay of eight months and 10 days.

[131]     The parties agree that defence waiver of the adjournment of the second trial dates from June to September 2018 is valid defence waiver of 92 days.

[132]     Finally, during the trial, defence counsel expressly waived the delay that flowed from vacating the reserved trial date of November 16, 2018. The trial resumed on December 20, 2018. The defence delay was 34 days.

[133]     The Crown argued that the period from December 20, 2018 until January 31, 2019 should be considered as delay caused directly by the defence. Trial time estimates for the trial on the 3-C Information were based on defence evidence taking a day. Defence evidence took roughly six days, including almost five days of cross‑examination.

[134]     I accept that several unexpected subjects were raised during the testimony of Mr. Steen that required more extensive cross‑examination than could have been anticipated.

[135]     One anticipated subject was the state of mind of the accused when he made his statement to the police and evidence of his earlier encounters with the police on which his state of mind was based. The voluntariness of Mr. Steen's statement to the police had not been challenged and the statement had been admitted into evidence.

[136]     The accused also provided evidence that directly challenged some of the testimony of the Crown's expert. Because the defence had failed to raise these issues in cross‑examination of the Crown's expert, the defence agreed to the Crown calling some rebuttal evidence and the defence acknowledged that the need for the Crown to call rebuttal evidence amounted to defence delay of one day.

[137]     I have concluded that some of the time from December 20 until the conclusion of the trial on February 1 was delay that was caused directly by the defence. Cross-examination took place on December 21, January 21 and 22 and January 31, 2019 and rebuttal evidence was called on February 1, 2019. I conclude that delay directly caused by the defence was from January 22 to February 1, for a total of 10 days.

[138]     I calculate that the total delay that must be attributed to the defence is 12 months and 26 days.

Issue # 3:  If the delay of 18 months from charge to end of trial is exceeded, can the Crown rebut the presumption that the delay is unreasonable by establishing exceptional circumstances?

[139]     I turn now to whether the Crown has established any exceptional circumstances that were either unforeseen or beyond the control of the Crown - whether they be discrete events, an exceptionally complex case, or transitional exceptional circumstances.

[140]     The Crown conceded that this was a moderately complex case and that its complexity did not justify the presumptive period of 18 months being exceeded.

[141]     The parties agreed that the delay occasioned by hearing this s. 11(b) application was a discrete event. They disagreed as to whether the period should run from February 1, when the evidence in the trial was completed, until March 19, 2019, when the hearing of the delay application was scheduled to be completed, or until March 26, when the hearing of the application was, in fact, completed.

[142]     I have concluded that the period of delay associated with this discrete event concluded on March 26, 2019. Because part of the focus of the delay application was on Crown counsel's conduct of the case, it was reasonable for a different prosecutor to present the argument on behalf of the Crown in this application. The delay of one week to allow new Crown counsel to be available, prepare for and fully respond to a 125-page written argument and a case brief of 34 cases was not unreasonable. I attribute the period from February 1 to March 26 to this discrete event. That is a period of 53 days.

[143]     The Crown argued that because the April 15, 2016 charges preceded the publication of the Jordan decision on July 8, 2016, that four months should be deducted as transitional exceptional circumstances.

[144]     At the time the Jordan decision was published on July 8, 2016, less than three months of the 18 month presumptive period had passed. Although the accused changed counsel, by May 20, 2016 - a little over a month after the new charges were laid - new counsel appeared in court on behalf of the accused and the Crown provided disclosure to new defence counsel.

[145]     On June 16, 2016, defence counsel requested disclosure of the March 5, 2015 search warrant and the Information to Obtain the search warrant that was also filed on March 5. Only three weeks later the Jordan decision was published and all were put on notice of the new presumptive period after which delay would be considered to be unreasonable.

[146]     The clarion call of Jordan went unheeded by Crown counsel who did not file the application requesting the unsealing of the Information to Obtain or the search warrant until October 21, 2016, more than four months after the request was made.

[147]     On November 1, 2016, the Crown provided further disclosure, including the search warrant and the Information to Obtain.

[148]     The parties advised the court in September that discussion of a possible disposition was delayed until the defence had the opportunity to review this additional disclosure.

[149]     Arraignment occurred on December 19, 2016 and trial dates of September 25 to 29, 2017 were set. These trial dates were within the 18-month presumptive period, provided that the trial finished on time.

[150]     Most of the delay in reaching arraignment and the setting of new trial dates occurred after Jordan was published when the parties were fully aware of the new standard that they were required to meet. Most of that delay must be attributed to the Crown not getting around to filing an unsealing application, a routine application that is granted by a desk order, in this case, on the same day.

[151]     The Crown has not persuaded me that transitional exceptional circumstances exist in this case that rebut the presumption of unreasonable delay above the ceiling of 18 months.

Conclusion

[152]     The delay for the new charges that were first brought on April 15, 2016 through the 2-C Information (Counts 4, 6 and 7 on the 3-C Information) runs from April 15, 2016 until April 30, 2019, or a period of 36 months and 15 days. From that period of delay, I must subtract the delay attributable to defence of 12 months and 26 days and the delay attributable to a discrete event that amounts to an exceptional circumstance of one month and 23 days. The total delay to be deducted is 14 months and 19 days. The net period of delay is 21 months and 26 days. That is a period that exceeds the presumptive ceiling of 18 months after which the delay becomes unreasonable by almost found months.

[153]     I find that Mr. Steen's rights under s. 11(b) of the Charter have been breached by the delay from when he was charged with these offences until the conclusion of the trial.  I order a stay of Counts 4, 6 and 7 of Information 93560-3-C.

[154]     As for Counts 1 and 2, the offences with which he was charged on April 26, 2017, the total delay is 24 months and three days from which the period of 14 months and 19 days must be deducted. The trial will conclude well within the presumptive period of 18 months.

[155]     I was also urged by the defence to consider this to be a case where the delay was excessive in the circumstances of Counts 1 and 2 although it did not exceed 18 months. The Supreme Court of Canada stated that these cases would be very rare.

[156]     I accept that Mr. Steen is being tried for events that occurred in 2013; however, he was not charged with these offences until 2017. Case law supports that pre-charge delay must not be included in the calculation of delay from charge to the end of trial. It is my view that this argument depends upon pre-charge delay improperly being considered as delay between charge and the end of trial.

[157]     Mr. Steen's application respecting Counts 1 and 3 of Information 93560-3-C is dismissed.

[158]     To summarize, Mr. Steen's right under s. 11(b) of the Charter to be tried in a reasonable time of being charged has been breached respecting Counts 4, 6, 7, 8 and 9 of Information 93560-3-C and the remedy under s. 24(1) of the Charter is that these counts must be stayed.

[159]     His application respecting Counts 1 and 2 of Information 93560-3-C is dismissed.

(RULING RE SECTION 11(b) CHARTER APPLICATION CONCLUDED)