IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT: This is my ruling on a delay application under file number 85636-1, R. v. Tyson Gamberg.

[2]           On March 12, 2019, I convicted Mr. Gamberg of committing theft from his employer, High Calibre Services Corp., contrary to s. 334(a) of the Criminal Code. A sentencing hearing was set for May 6, 2019, but that sentencing was adjourned to allow Mr. Gamberg's delay application to be heard.

[3]           Mr. Gamberg seeks a stay of proceedings in this matter, asserting that his right to be tried within a reasonable time pursuant to s. 11(b) of the Charter has been violated. The total delay between the laying of the Information on March 17, 2017 to the end of the trial on March 12, 2019, is 23 months and 26 days, by my calculation. The defence has asserted a slightly longer total delay of 24 months and 25 days, but this figure is not supported by the timelines provided.

[4]           Mr. Gamberg concedes that four months and two days of delay are attributable to the defence, bringing the net delay to some 19 months and 24 days. This net delay is above the presumptive ceiling of 18 months for matters heard in Provincial Court as established in R. v. Jordan, 2016 SCC 27. The defence, therefore, submits that the delay is presumptively unreasonable and the Crown has the burden of rebutting the presumption by showing exceptional circumstances, if any.

[5]           However, the Crown submits that the delay properly attributable to the defence is approximately 10 months, bringing the net delay to some 14 months, which is well below the presumptive ceiling. Alternatively, the Crown argues that even if the court finds that the presumptive ceiling of 18 months has been attained, a period of 42 days ought to be subtracted from the net delay due to exceptional circumstances because a judge was ill for the first day of trial.

[6]           The critical time period in dispute runs from June 15, 2017 to December 4, 2017, when the file was adjourned some six times while Mr. Gamberg sought legal counsel. This period totals five months and 19 days. I should indicate that I have a limited record upon which to assess this issue of defence delay. I do have all the necessary transcripts (plus a digital audio recording of one appearance) and the Record of Proceedings, but I have no affidavit evidence.

[7]           In a typical s. 11(b) application, the accused provides transcripts of every appearance before the court, as well as an affidavit explaining the chronology and any reason for the delays. Courts have held that unless the judge hearing a delay application has full information in order to consider the drastic remedy of a stay of proceedings, it is unlikely that these applications will be given consideration (R. v. Baldini, 2012 BCCA 206, paras. 56 - 62).

[8]           As stated above, I have all the necessary transcripts but for the third day of trial which ended with an adjournment to hear closing submissions. I do have the digital audio recording for that third day of trial being September 27, 2018. I also have the Record of Proceedings.

[9]           However, I have no affidavit from Mr. Gamberg or anyone else explaining any reasons for the many adjournments between June 15 and December 4, 2017, totalling five months and 19 days. During this period, I can see from the transcripts that Mr. Gamberg was seeking legal aid funding, considering an appeal of legal aid's decision not to provide funding, considering a Rowbotham application and sourcing funds to retain a lawyer privately.

[10]        In this case, I will be assessing the reasonableness of Mr. Gamberg's steps taken during this period without the benefit of any affidavit. I will conduct this assessment of any possible defence delay without any evidence other than the court appearances themselves.

[11]        This situation is somewhat akin to what occurred in R. v. Muhammed, 2018 ONSC 4463. In that case, Mr. Muhammed went through a legal aid application, review and appeal process. Mr. Muhammed then took about seven months to bring on a Rowbotham application. At paragraph 85 the court explained that Mr. Muhammed did not file an affidavit to explain the delay so the court was left to draw inferences. I am in a similar situation. I must rely on reasonable inferences from the court record in conducting any analysis.

[12]        The Supreme Court of Canada in R. v. Jordan, cited above, developed a new framework for the application of s. 11(b) of the Charter. For a trial in Provincial Court there is a presumptive ceiling of 18 months from charge to end of trial. If the total delay, minus defence delay, exceeds the ceiling, the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

[13]        The case of R. v. Coulter, 2016 ONCA 704, provides a clear summary of the Jordan framework from paragraph 34 onwards:

[14]        The Jordan framework requires the efforts and coordination of all participants in the criminal justice system. Both parties should focus on making reasonable admissions, streamlining the evidence and anticipating issues that need to be resolved in advance.

[15]        Defence delay has two components: first, delay waived by the defence and secondly, delay caused solely by the conduct of the defence (Jordan, para. 61).

[16]        The burden for establishing delay attributable solely to the defence rests with the Crown on a balance of probabilities (R. v. McConnell, 2018 BCSC 2258). However, as discussed above, I will be assessing whether any delay is attributable to the defence using a limited record in this case.

[17]        As to waiver of delay by the defence, any such waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his rights and the effect of the waiver on those rights (Jordan, paras. 61 and 63).

[18]        As to defence-caused delay, it is comprised of situations where the acts of the defence either directly caused the delay or the acts of the defence are shown to be a deliberate and calculated tactic employed to delay the trial (Jordan, para. 63).

[19]        I must bear in mind that defence actions taken legitimately to respond to the charges will fall outside the ambit of defence delay. Likewise, defence applications and requests that are not frivolous will also generally not count against the defence.

[20]        Defence counsel are expected to actively advance their client's right to trial within a reasonable time, collaborate with Crown where applicable, and use court time efficiently (Jordan, para. 138). Crown counsel and the courts must take efforts to ensure justice is delivered in a timely manner.

[21]        Some of the delay in the present case relates to seeking counsel and applying for legal aid. In R. v. Isaacs, 2016 ONSC 6214, the court distinguished between delay attributable to the accused bringing a legal aid application and delay caused by legal aid's processing of the application. Time spent between when the legal aid application is brought and when it is adjudicated would not be defence delay, but defence "foot dragging" during the legal aid process should be considered defence delay.

[22]        At paragraph 90 in Isaacs, the court ruled that if a case cannot be moved forward because the accused has not retained a lawyer and is unable or unwilling to bring a Rowbotham application, then that is defence delay. If the Crown and the court are ready to proceed and the defence needs time to consider bringing a Rowbotham-type of application, then the delay is solely defence delay. Of course, legitimate applications concerning legal aid and Rowbotham will not constitute defence delay (see McConnell above).

[23]        I agree with Crown counsel that the case of R. v. Mahenthiranathan, 2017 ONCJ 497 sets out the principles succinctly. In considering delays attributable to the accused's application for legal aid funding and the obtaining of legal representation, one should consider: (1) whether, in the circumstances, it is fair and reasonable to conclude the applicant was guilty of dragging his feet; and (2) whether the applicant's actions, viewed as a whole, could be characterized as demonstrating indifference to the progress of his case or a design to delay.

[24]        Exceptional circumstances are those that lie outside the control of the Crown and that they are reasonably unforeseen or reasonably unavoidable. In order for the Crown to rely on exceptional circumstances, they must establish that they took reasonable steps to avoid and address the problem before the delay reached the ceiling (Jordan paras. 69 to 70).

[25]        Generally speaking, exceptional circumstances fall under two categories:  discrete events and particularly complex cases. Discrete events are unforeseeable or unavoidable developments that cause a trial to go awry. They would include medical or family emergencies, extradition issues, witness recantations and trials that go longer than expected where the parties made a good-faith effort to establish realistic time estimates (Jordan, paras. 71 to 74).

[26]        My analysis is based on a review of the transcripts provided and reasonable inferences to be drawn from those transcripts.

[27]        Crown and defence agree that this period of nearly three months properly counts towards the 18-month Jordan ceiling.

[28]        On March 17, 2017, the Information was sworn and Mr. Gamberg was issued a summons.

[29]        Mr. Gamberg's first appearance before a judicial case manager was on April 27, 2017. Mr. Gamberg did not have the assistance of duty counsel and he was provided with disclosure. With the full agreement of the Crown, the matter was adjourned to May 25, 2017 to allow Mr. Gamberg to review the particulars and get legal advice or see if he was eligible for legal aid.

[30]        On May 25, 2017, Mr. Gamberg explained to the court that he did not have a lawyer and he needed an adjournment. He said, "My legal aid wasn't quite ready.” The matter was adjourned to June 15, 2017.

[31]        I certainly agree that it was reasonable for Mr. Gamberg to receive a couple of adjournments to pursue legal representation. I accept that this entire three months counts towards the Jordan ceiling.

[32]        The characterization of this five month and 19 day period is a major dispute in this case. The Crown submits that the entire period qualifies as defence delay, whereas the defence contends that such a characterization has not been established.

[33]        On June 15, 2017, Mr. Gamberg appeared before the judicial case manager with the assistance of duty counsel. Duty counsel advised the court that Mr. Gamberg did not qualify for legal aid, so he wanted to file a Rowbotham application. Crown counsel asked some questions and was told that Legal Services suggested that Mr. Gamberg take the route of a Rowbotham application. Crown counsel indicated that Legal Services may require Mr. Gamberg to challenge Legal Services' decision first by way of an appeal.

[34]        On that same appearance, Mr. Gamberg stated that he just got rejected yesterday (i.e. June 14, 2017) and was informed he had 30 days to appeal. Crown counsel reiterated that an appeal may be a required first step but said, "I'll leave it up to you.” The court proposed an adjournment to July 27, 2017 to allow time for the Legal Services appeal.

[35]        I appreciate that by June 15, 2017 the Crown had complied with its disclosure obligations and the matter had been adjourned twice so Mr. Gamberg could consult legal counsel. However, I disagree that the June 15th adjournment must fall at the feet of Mr. Gamberg as defence delay. Mr. Gamberg had just learned that he did not qualify for legal aid and, based on the transcript, this was the first time he had appreciated that he now likely needed to appeal the legal aid decision before commencing a Rowbotham application.

[36]        Time taken to consider a Rowbotham application or legal aid appeal has been held to constitute defence delay but, as of June 15, 2017, Mr. Gamberg had just learned of the legal aid rejection and that the best approach was an appeal. I see no foot dragging at this juncture. Mr. Gamberg needed just over a month to carry out an appeal of the legal aid decision if he were to take those steps. Of course, I have no evidence of what steps he actually took to appeal legal aid.

[37]        Based on my analysis, the period from June 15, 2017 to July 27, 2017, a total of 43 days, properly counts towards the Jordan ceiling.

[38]        On July 27, 2017, Mr. Gamberg appeared in court again with duty counsel. Duty counsel advised the court that Mr. Gamberg had "just received a notice that he -- he doesn't qualify for legal aid.” Of course, Mr. Gamberg knew he did not qualify for legal aid over a month ago, but I appreciate that the word "just" is a relative term.

[39]        On July 27, duty counsel requested an adjournment so that Mr. Gamberg had time to collect funds for a lawyer. Duty counsel said that, "Some money is going to come in in five weeks. If he can have five weeks, he's expecting to be able to have counsel.” The court acceded to Mr. Gamberg's request for an adjournment and the matter was adjourned to September 7, 2017.

[40]        As of July 27, 2017, I am much more inclined to characterize the delay as defence delay. I have no information about any attempt by Mr. Gamberg to appeal legal aid and he is then requesting to retain a lawyer privately. Under the Jordan framework, the adjournment from July 27, 2017 constitutes defence delay. The delay is solely to allow Mr. Gamberg to acquire funds to retain a lawyer, and the court cannot go forward with setting a trial until the counsel issue is resolved.

[41]        On September 7, 2017, Mr. Gamberg again appeared before a judicial case manager with the assistance of duty counsel. Duty counsel advised that Mr. Gamberg needed time to put funds together to retain counsel. The court observed that Mr. Gamberg, "Probably already had a little bit of time to do that.” In my view, that is an understatement. Mr. Gamberg responded that he just needed, "A little more time.” The matter was adjourned to October 2, 2017. Again, the sole reason for the delay was to allow Mr. Gamberg more time to retain counsel, and I have no evidence about his concrete attempts to acquire funds for counsel. This is defence delay.

[42]        On October 2, 2017, Mr. Gamberg did not appear in court and his non-appearance was noted with an application for a bench warrant being adjourned to October 16, 2017. Mr. Gamberg had earlier attended at the Crown office to say that his wife had a medical appointment on October 2^nd, and he needed a bit more time to get a lawyer. Mr. Gamberg was diligent in notifying Crown counsel about his wife's medical appointment but the delay here is clearly defence delay. By October 16, 2017, Mr. Gamberg had close to three months since the July appearance to retain counsel and had not done so. The delay since July 27th is at least defence inefficiency, if not total foot dragging.

[43]        On October 16, 2017, Mr. Gamberg again appeared in court with duty counsel. Duty counsel states that, "He's had notice from his employer that he won't be working there anymore, so he wants to make another legal aid application.” Duty counsel herself sought an adjournment saying, "Mr. Gamberg will have to waive delay on that.” Mr. Gamberg made no comments or agreement on the record.

[44]        I consider the waiver to be clear and unequivocal, and I have no evidence to the contrary. In any event, the delay is again solely for the accused's benefit as he floundered in his efforts to retain counsel either privately or through legal aid. Neither the court nor the Crown could move forward until defence counsel was established.

[45]        On November 20, 2017, Mr. Gamberg appeared next in court with duty counsel. Duty counsel states, "I understand this matter has been dragging on a little bit as Mr. Gamberg has sought counsel. He's recently had a change to his personal circumstances and it appears that he's likely going to be approved for legal aid.” The Crown advised the court that Mr. Gamberg had been trying to get a lawyer for "quite some time" and she requested a shorter adjournment.

[46]        At this November appearance, the Crown noted that Mr. Gamberg had waived delay before and inquired if he would be willing to do that again. Duty counsel indicated that he did not consult Mr. Gamberg on that issue but said, "It seems that this sort of delay would be on him, in any case, at this point.” The matter was adjourned to December 4, 2017 when Mr. Gamberg finally retained counsel.

[47]        I agree with duty counsel's comments entirely. Whether or not there was a specific waiver of s. 11(b) rights, this delay was caused by Mr. Gamberg. Again, the adjournment was solely for Mr. Gamberg's benefit, and the justice system was put on hold.

[48]        In short, the period from July 27, 2017 to December 4, 2017 qualifies as defence delay. This period totals four months and seven days. Mr. Gamberg's professed inability to retain counsel was the only impediment to moving the matter forward. I appreciate that no trial Crown was yet assigned to the case, but neither the Crown nor the court could move forward until Mr. Gamberg had retained counsel. He had over four months to accomplish this step.

[49]        The Crown and defence agree that the period of time from retaining counsel to the completion of evidence at trial properly counts towards the 18-month Jordan ceiling. During this period, Mr. Gamberg retained Mr. Derksen as counsel and the time from December 4, 2017 to the arraignment on February 1, 2018, was a reasonable delay to allow defence counsel to review the Crown disclosure. I also note that as of January 8, 2018, trial Crown was not yet assigned.

[50]        This matter was arraigned on February 1, 2018 and adjourned to the judicial case manager to fix a four-day trial. The trial was set for September 24 to September 27, 2018. There is no evidence that the court offered earlier dates.

[51]        On September 24, 2018, the trial could not begin because a judge had become ill. This matter appeared before me briefly that day and then I heard the trial on September 25, 26 and 27. All the evidence was heard during those three days of trial but there was no time for closing submissions.

[52]        This total period from the retaining of Mr. Derksen to the completion of the evidence at trial amounts to some nine months, 23 days and counts towards the 18‑month Jordan ceiling.

[53]        For this 42-day period there is no suggestion of defence delay. However, the Crown submits that exceptional circumstances exist due to the illness of a judge. As discussed above, the trial could not begin on September 24, 2018, due to the illness of a judge. If the trial had started on that day it would likely have completed that week without the need to adjourn for closing submissions. Of course, I still would have had to reserve my decision.

[54]        Due to the illness of a judge, I adjourned the first day of trial on September 24 and I heard all the trial evidence on September 25, 26 and 27. I should add that the Crown and defence were ready to proceed on September 24. I also note that when the Crown led its case, defence made no admissions.

[55]        On September 27, 2018, I adjourned the trial to the judicial case manager to set a one-hour continuation for closing submissions. On October 4, 2018, defence counsel attended at the judicial case manager to set the continuation for November 8, 2018. The continuation on November 8th did not actually happen because Mr. Gamberg was mixed up about the date and I deal with that issue in the next section.

[56]        Based on my findings concerning defence delay, there may be no need for me to rule on the Crown's argument about exceptional circumstances due to the illness of a judge. Nevertheless, I must say that I agree with the Crown's general submission that the delay during this period was attributable to the unexpected illness of a judge on September 24, 2018. The Jordan framework does identify medical emergencies as an example of a discrete, unforeseeable event that ought to be subtracted from any remaining delay. Simply put, were it not for the unexpected illness of a judge, all the trial evidence and closing submissions would have occurred within the four days of trial originally set. However, I still would have reserved on my decision and that small delay would have counted towards the Jordan ceiling.

[57]        There is really no issue that most of this period is defence delay. Unfortunately, Mr. Gamberg was not present on November 8, 2018 for closing submissions due to a mix up on his part. Closing submissions were delayed until January 25, 2019. My decision was set to be delivered February 19, 2019 but Mr. Gamberg could not appear on that date as a result of some family medical appointments. I finally delivered my decision on March 12, 2019.

[58]        For each of the adjournments during this period, the defence expressly waived Mr. Gamberg's s. 11(b) rights. This delay totals four months and four days. In fairness, however, I would not have had my decision ready the very instant closing submissions had finished whether that occurred on November 8, 2018 or January 25, 2019. Although this case was relatively straightforward, I would have reserved my decision for about 14 days, taking into account my other obligations. Consequently, I am reducing the defence delay from four months and four days to three months and 20 days.

[59]        In the Gamberg matter, the total delay from the charge on March 17, 2017 to my decision on March 12, 2019, is 23 months and 26 days.

[60]        I am to subtract from the total delay any defence delay. Based on my analysis, the defence delay includes the period from July 17, 2017 to December 4, 2017 (four months and seven days) and the period from November 8, 2018 to March 12, 2019, less 14 days (three months and 20 days). The total defence delay is almost eight months, i.e., seven months and 27 days.

[61]        When I subtract the defence delay of nearly eight months from the total delay of 23 months and 26 days, the net delay is about 16 months, or 16 months less one day, to be precise. This net delay is below the Jordan ceiling of 18 months, and I have not yet deducted anything for the discrete event involving the illness of a judge.

[62]        Accordingly, I find that the presumptive ceiling of 18 months has not been reached. The defence has not demonstrated that a net delay of about 16 months is unreasonable in these circumstances.

[63]        In conclusion, Mr. Gamberg's delay application is dismissed and the conviction on March 12, 2019 stands.

[64]        A sentencing date should be set as soon as practicable, as a Pre-Sentence Report has already been prepared.