IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Mr. De Boer and Mr. Martin have brought applications pursuant to s. 11(b) of the Charter for judicial stays of proceedings on the basis that their right to a trial within a reasonable time has been infringed (commonly referred to as a “delay application”). This is their second such application. I heard the first on September 22, 2020, and dismissed it from the bench. The trial proceeded on September 22 and 23, but did not finish.

[2]         After the trial did not conclude on September 23, 2020, Mr. De Boer and Mr. Martin filed new applications for judicial stays of proceedings on the basis that their right to a trial within a reasonable time has been infringed. All parties filed written submissions, and Mr. De Boer and the Crown filed affidavits. I heard submissions on the second applications on December 24, 2020, for the better part of a day.

[3]         The information in this matter was sworn January 18, 2019. Both accuseds’ are charged that on September 26, 2018, they produced cannabis and possessed it for the purpose of trafficking. The first trial dates were scheduled for December 11 and 12, 2019. That trial was adjourned at the request of Mr. De Boer because his previous counsel withdrew. Mr. De Boer obtained new counsel by November 25, 2019. New trial dates were scheduled for September 22 and 23, 2020. As of December 24, 2020, the trial was scheduled to continue on June 15 and 23, 2021.

[4]         On December 24, 2020, after hearing submissions on these applications, I advised counsel that I would communicate with the judicial case manager to determine whether earlier continuation dates could be found. Through that consultation process, new continuation dates have been scheduled for March 17 and 18, 2021. One date was offered in January, and two in February, 2021, but one or the other defence counsel were not available for those dates.

[5]         I heard facts and submissions about the various events and communications between the parties, and with the judicial case manager, that led up to the September 2020 trial date. I have considered all of the filed materials and submissions, but the facts as I have just outlined them suffice for the purposes of my decision.

[6]         In particular, I have considered defence submissions that I should conclude that the Crown was not ready to proceed on earlier trial dates. I do not draw that conclusion from the evidence before me. There was late disclosure in this case, but that does not mean the Crown was not prepared to proceed on earlier trial dates without that evidence. In any event, this conclusion does not affect my ultimate decision on these applications.

[7]         Similarly, I have read and heard the submissions on how to treat co-accused delay, but it is not necessary for me to consider that law, in light of the reasons for my decision.

[8]         It is helpful to review the principles underlying the legal framework for the accuseds’ applications for judicial stays of proceedings pursuant to s. 11(b) of the Charter. That section reads: Any person charged with an offence has the right to be tried within a reasonable time.

[9]         The first fundamental principle to bear in mind is that the Charter provides rights to an accused person as against the state, which, in a s. 11(b) case, refers to Crown resources (meaning Crown counsel and their witnesses), and the court. The right is not to a trial within a given time frame, or a right to a trial at the earliest date an accused or their counsel are available. It is a right to have Crown and court resources available to an accused person within a reasonable time.

[10]      Next, it is important to remember that this is the accuseds’ application for a remedy, pursuant to s. 24(1). That section reads: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[11]      This leads to the second fundamental principle: the accused bears the onus of proof. Because it is the accuseds’ application, the onus is on them to prove, on a balance of probabilities, that their rights have been infringed or denied.

[12]      The onus is stated by the Supreme Court of Canada, and referred to in legions of subsequent cases, in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, at paragraph 21:

[13]      I highlight the following points: the accused bears the initial burden of presenting evidence. Where the evidence does not establish whether or not the accused’s rights were infringed or denied, the court must conclude they were not. In short, the accused has an evidentiary burden. If they do not meet that burden, their application must be dismissed.

[14]      This is the third fundamental principle: if the evidence is insufficient to establish whether or not the accused’s rights were infringed, the application must be dismissed.

[15]      Bearing in mind these fundamental principles, I now turn to the framework for s. 11(b) applications, as established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, R. v. Cody, 2017 SCC 31, and cases which follow them.

[16]      In Jordan, the Supreme Court of Canada summarized the appropriate analysis under s. 11(b) in paragraphs 66 to 68. In these three paragraphs, the court sets out three sequential steps:

[17]      The Supreme Court of Canada is clear: the first step is to determine the total delay, and defence delay must be deducted. Step one takes place before the court can determine whether the presumptive ceiling has been passed.

[18]      The Court in Jordan makes it equally clear, consistent with the fundamental Charter principles outlined above, that the onus does not shift to the Crown until after a court has determined that the presumptive ceiling has been exceeded.

[19]      Much of counsels’ submissions in this case were based on the false premise that the presumptive ceiling has been exceeded, based on the 29 month total delay between the swearing of the information (January 18, 2019) and the anticipated end of trial (which, at the time of submissions, was June 23, 2021). In short, they skipped directly from step one to step two.

[20]      Critically, included in step one is deduction of defence delay. One example of defence delay is set out in Jordan at paragraph 64:

[21]      This statement from Jordan was confirmed in Cody at paragraph 30. It was also recently restated emphatically by the British Columbia Court of Appeal in R. v. Balogh, 2020 BCCA 96, at paragraph 29:

[22]      The obvious question arising from this statement of the law is, what was the availability of Crown and court resources when the trial dates were set? Specifically, at the time the first trial date was set, what was the first date that Crown and the court were available? What were the first dates available to Crown and the court when the second and third trial dates were set?

[23]      Counsel before me were unable to answer these questions.

[24]      Instead, defence counsel provided the court with trial scheduling memos which show the trial dates, and the dates on which the trial dates were fixed. They asked me to rely on these trial scheduling memos as evidence of the first available dates for Crown and court resources. As I will explain, such evidence is inadequate to meet the accuseds’ burden of proof.

[25]      Both Jordan and Cody refer to trial judges being “uniquely positioned” to gauge defence actions when considering how to deduct defence-caused delay (paragraph 65 Jordan and paragraph 31 Cody). In Cody, the Court also pointed out that trial judges play a role in changing courtroom culture, including scheduling practices (Cody, paragraph 37).

[26]      As a Provincial Court judge, I regularly communicate with the local judicial case managers, who are responsible for the court’s scheduling. I am familiar with how trials are set in this court in British Columbia. I cannot speak for any other province, nor for the Supreme Court of this province. Mr. Chesterley, counsel for Mr. De Boer, provided an affidavit that confirms my understanding of the criminal trial scheduling process in the British Columbia Provincial Court.

[27]      When asked to schedule a trial, the judicial case manager uses a computer software program. She enters into the program the names of the Crown police witnesses and the name of defence counsel. Civilian witness availability must be provided by Crown or defence manually, or it is not considered. More recently, the system permits the consideration of an assigned Provincial Crown’s schedule, but not Federal Crown. Federal Crown must provide their availability manually.

[28]      The important point is this: when the judicial case manager sets a trial date, the first date offered, as shown on the trial scheduling memo, is one when the Crown resources, the court and defence counsel are available. It is not the first date that Crown and court resources are available. If defence counsel has a busy schedule, as they often do, the first date offered may be later than what is available to the Crown and court.

[29]      This brings me back to the onus of proof: the accused must provide me with the evidence upon which I can undertake step one in Jordan: calculation of total delay, minus defence delay. I must be able to subtract defence delay before advancing further through the Jordan framework. And defence delay includes, according to the Supreme Court of Canada, any time that Crown and court resources were available but defence was not.

[30]      By providing me with only the trial scheduling memos, I cannot determine the first date Crown and court resources were available when the first, second, and third trial dates were set.

[31]      This point was brought home in particular in this case, when, at the end of submissions on December 24, 2020 (the second delay application), I asked what was the first date Crown and court resources were available for the continuation of the trial. Counsel could not answer this question. I asked the Crown to request that information from the judicial case manager over the lunch break. The response received was that the court had one, and possibly two, dates available in January 2021.

[32]      I also asked counsel whether any of them had considered bringing the matter before me to seek an earlier date once they had secured the June 2021 dates. None had done so.

[33]      Before we adjourned on December 24, 2020, I told counsel I would be speaking with the judicial case manager to determine whether there were dates, other than those identified in January 2021, that court and Crown resources could be made available earlier than June 2021. Within a week I was advised by the judicial case manager that the court had two days available in February 2021. As set out earlier in these reasons, one or the other defence counsel were not available for the January or February dates. However, we have now secured continuation dates on March 17 and 18, 2021.

[34]      My point, in recounting the above communications, is that no one asked the judicial case manager for the first available date for Crown and court resources before the first, second and third trial dates were set. My inquiries after December 24, 2020 produced significantly earlier available dates than June 2021. As a result of nobody asking about availability of court and Crown resources at the time the first, second, and third trial dates were set, I have no idea what earlier dates might have been available. 

[35]      At this juncture, I return to first principles: this is an application by the accuseds, to the court, for a judicial stay of proceedings, on the basis that the state, meaning Crown and court resources, have not been provided to them within a reasonable time. How could a court possibly determine whether those resources have been provided to the accuseds within a reasonable time without knowing the dates those resources were available?

[36]      To put it more strongly, as the British Columbia Court of Appeal did in Balogh, at paragraph 37:

[37]      Nor should the state be rebuked because an accused or their counsel has not provided evidence of when the state’s resources were available to them.

[38]      Defence counsel submit that they have no way of knowing when Crown and court resources were available at this late date. This is true. The schedules of the court, Crown, and Crown witnesses change daily. One cannot go back and capture a picture of resources available at the time trials were set. Accordingly, defence counsel submit that I must rely on the evidence available to me. In short, they submit that I should make my decision on a lack of evidence. This submission fails to recognize the onus of proof as stated in Collins. The evidentiary burden is on the accused. If the evidence does not establish whether or not the accused’s rights were infringed, the court must conclude that they were not.

[39]      Defence counsel further submit that knowledge about Crown and court resources is not available to them in any event, since they don’t have access to that information, even at the time the trial dates are set. This submission fails to account for the obvious: defence counsel can, and should, if they want to be able to make a s. 11(b) application in the future, ask for the first available date for Crown and court resources at the time the trial date is set. They could then record this information for a future affidavit, or ask the judicial case manager to make a note on the trial scheduling memo and provide them with a copy.

[40]      One might argue that a self-represented person, unaware of how the scheduling system works, would not know that they need to preserve this evidence for a potential s. 11(b) application. However, they would not need to know this, because the first available date for Crown and court resources would be offered to them. If rejected, that would, in the usual course, be noted by the judicial case manager. In any event, the delay of concern here, which is defence counsels’ schedules, would not be a factor.

[41]      It is fair to say that defence counsel in this case were taken by surprise when I dismissed their first s. 11(b) application from the bench because they had not met their evidentiary onus. It seems that it did not occur to them, or the two original defence counsel in this case, to ask the judicial case manager for the first date available for Crown and court resources.

[42]      Having said that, it seems to me that it should have occurred to them. First, defence counsel are familiar with the scheduling system. As Mr. Chesterley’s affidavit makes clear, defence counsel know that their availability is automatically taken into account when the judicial case manager sets a trial.

[43]      Second, Jordan has been the law since 2016, and it could not be clearer about what constitutes defence delay: “…the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.” (paragraph 64).

[44]      Third, while it is the responsibility of all justice partners to be proactive in bringing trials to their conclusion in a timely manner, it is only an accused person who will ever make an application for a judicial stay of proceedings. It is only defence counsel who will be privy to their schedules, beyond what is in the judicial case manager’s computer system. It is the accused who bears the evidentiary burden. It is up to them to secure evidence of the first available date for Crown and court resources, so a court will be in a position to determine whether their rights have been infringed or denied.

[45]      To decide the accuseds’ applications on a lack of evidence would encourage accused persons to decline to preserve evidence that is to their detriment. The court cannot condone that. It allows the accused to take advantage of a situation they deliberately create, to the detriment of the administration of justice as a whole.

[46]      This raises the issue of legitimacy of defence conduct as discussed in Jordan and Cody.

[47]      I want to be clear that I do not mean to be critical of the two defence counsel in this case. They both appear before me regularly and are senior and respected members of the bar. Their conduct, as evidenced in this s. 11(b) application, appears to be no different than that of defence counsel elsewhere in the province. It is apparent from the case law that it has become routine for delay applications to proceed on the basis of transcripts and trial scheduling memos without looking behind that documentation. Indeed, even Crown counsel in this case did not raise the issues of onus of proof and the actual availability of Crown and court resources. As far as I know, this issue, in the context of how the British Columbia Provincial Court scheduling system works, has not been raised squarely by this court prior to this case.

[48]      Nevertheless, the Supreme Court of Canada in Cody, picking up on language used in Jordan, stated at paragraph 31:

[49]      In subsequent paragraphs, the court in Cody goes on to say, at paragraphs 32 and 33:

[50]      I conclude that if defence counsel does not ask, at the time they set a trial date, for the first date when Crown and court resources are available, they do so at their client’s peril. If they do not secure that evidence, they run the risk that the court will dismiss a s. 11(b) application for lack of evidence.

[51]      Finally, the Supreme Court of Canada’s commentary at paragraph 36 of Cody is apt:

[52]      I have not been provided with evidence of the availability of Crown and court resources at the time the first, second, and third trial dates were scheduled. The burden of providing this evidence is on the accused. Without that evidence, I cannot get past the first step in the Jordan analysis: deducting defence delay from the total delay. I have no way of knowing what that defence delay might be. It would be contrary to fundamental Charter principles and the law as set out in Jordan and Cody to base my decision on the evidence available to me. Since the evidence does not establish whether or not the accuseds’ right to a trial within a reasonable time has been infringed or denied, I must dismiss their applications for judicial stays of proceedings.