IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Mr. St. Martin is charged with “using an electronic device while he was driving” contrary to s. 214.2(1) of the Motor Vehicle Act. The date of the alleged offence is March 8, 2021. The matter is currently scheduled for trial on January 25, 2023, almost two years after the date of the incident. Mr. St. Martin applies to this Court pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms for a judicial stay on the basis that his right to be tried within a reasonable time has been infringed, as protected by s. 11(b) of the Charter.

[2]         As with all applications of this nature, the timeline of the relevant events is of vital importance. In this case, there is no dispute with respect to the following:

[3]         In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set out the framework for the analysis to be undertaken in the application at bar. The court must first calculate the total amount of delay by considering the period between the laying of the charge, to the anticipated conclusion of the trial. From this period, the court must then subtract any delay that is attributable to the defence. Defence delay could either be any period that was waived, or any delay caused solely by the conduct of the defence.

[4]         If the resulting delay is greater than 18 months for proceedings in a provincial court, then the amount of delay is presumptively unreasonable. This presumption is, however, rebuttable if the Crown is able to show that there were exceptional circumstances. If the result is below the 18-month ceiling, then the delay is not presumptively unreasonable. In that case, it remains open to the defence to establish that it is nevertheless unreasonable by demonstrating that it took meaningful, sustained steps to expedite the proceedings.

[5]         Here, the Jordan clock started ticking when Mr. St. Martin received his violation ticket on March 8, 2021. The first trial date offered to him was October 27, 2022. This latter trial date was adjourned at Mr. St. Martin’s request because his witness was not available. As such, in my view, the clock “stopped ticking” on October 27, 2022 because any period thereafter was caused solely by the conduct of the defence. Before October 27, 2022, there was no defence waiver, nor did defence conduct result in any delay. Accordingly, the total passage of time under consideration is 19.5 months (from March 8, 2021 to October 27, 2022). This is still above the presumptive ceiling.

[6]         The Crown does not disagree with this calculation, but says that there was a discrete and exceptional event, namely the COVID-19 pandemic. In particular, because of a resurgence in cases during the latter months of 2021, the court had to cancel and adjourn traffic court proceedings between January 4 and 28, 2022. Numerous courts have found the COVID pandemic to be a discrete exceptional event as that term was used in Jordan (see for example R. v. Drummond, 2020 ONSC 5495; R. v. Folster, [2020] M.J. No. 187; R. v. Ali Ismail, 2020 BCPC 144; R. v. Khattra, 2020 ONSC 7894, R. v. Singh, Richmond Registry EA00047971, Sept 14, 2021 BCPC; R. v. Tan, 2021 BCPC 198; R. v. Gharibi, 2021 ONCJ 63). Cavanagh J. put it this way in Folster, supra, at para. 28:

[7]         Consequently, as a starting point, the period between January 4 to 28, 2022 (24 days) should be deducted from the overall delay. Because of the resurgence of cases of COVID-19, it was necessary for the court to delay hearing traffic matters during that time for public safety and health reasons. But the impact of this health crisis should not be restricted only to those 24 days. As other judges have observed, it cannot be expected that, on the very first day the courts resume operation, everything would return to normal. There is a backlog of cases to administer, and the parties need some notice to organize themselves for trial. In R. v. Tan, my sister Judge Vandor said this at para. 23 in reference to the first period of time when the court suspended operations in 2020:

[8]         These comments were adopted in R. v. Singh, (Richmond Registry EA00047971 Sept 14, 2021 BCPC) by my brother Judge Mah at para. 21.

[9]         Accordingly, the jurisprudence dictates that the court considers, on a more systemic level, the impact of the pandemic and court closures. It would be an error to look narrowly at the period during which the court suspended its operation. The question then, is how much delay is properly attributable to COVD-19 in this case. While the exercise does not lend itself to a precise mathematical formula, I note that Judge Vandor attributed a delay of just over 6 months to COVID-19 in reference to a suspension of court operations of 4 months (see para. 34). Judge Mah attributed a delay of 6 months in reference to the same suspension.

[10]      In the case at bar, Mr. St. Martin allegedly committed this infraction on March 8, 2021. At the time, traffic court was operational and had resumed operation since July 13, 2020 in Kelowna. It is reasonable to think that, by March 2021, the system would have caught up with most of the backlog from the first suspension. Any residual effect from the first suspension would have been modest.

[11]      However, in reaction to another wave of COVID-19 cases, the court suspended operations again for 24 days in January 2022. Under these circumstances, I am prepared to attribute 40 days of the overall delay to the exceptional and discrete event of the COVID-19 pandemic. Proportionally, it is comparable to what Judge Vandor and Judge Mah found in relation to the first 4-month suspension. I note also that the system was likely in a better position to handle the second suspension since there would have been existing protocols, equipment, and procedures in place. Any effect arising from the second suspension of operations was naturally less dramatic as the system had already dealt with the situation once before.

[12]      The Crown had asked the court to attribute 3 months of delay in this case to the discrete and exceptional event of the COVID-19 pandemic. Mr. Schroeder says that this is a shorter period than the other cases cited. However, all of the other cases cited (understandably) reference the court closure between March and July of 2020 – a period of 4 months. As mentioned above, by the time Mr. St. Martin received his ticket, traffic court in Kelowna had already resumed operation for 7.5 months from the first closure. It could be, and should be, expected that the system will have mostly recovered from the backlog by that time. The first closure cannot justify an ongoing delay of 4 months ad infinitum. That proposition would result in a permanent heightening of the Jordan presumptive ceiling to 22 months. There is no rational basis to come to that conclusion. Indeed, both Judge Vandor and Judge Mah assessed the delay occasioned by the first suspension at 6 months. By implication, both judges concluded that any backlog or residual effect had been essentially resolved by September 2020 (6 months after March 2020). As such, I disagree with the Crown’s position that 3 months ought to be attributed to COVD-19. In my view, that overestimates the effect the second court closure would have had.

[13]      I pause to say that the assessment of delay attributable to this discrete and exceptional event is particular to the facts of this case. Jurisprudence arising out of other jurisdictions, or even other levels of court in this province are of limited value since the operational constraints those courts faced, and the manner in which they reacted to the crisis, were necessarily different. As such, cases coming out of the Provincial Court of BC are infinitely more relevant.

[14]      Returning then to the calculation, the total delay is 19.5 months, which is over the presumptive ceiling. Reducing that period by 40 days as a result of the court closure due to the COVID-19 pandemic, that leaves a period of just over 18 months. This still remains over the presumptive ceiling. The Crown made no further argument as to additional deductions from the overall delay. This is not a complex case that requires any further adjustment to the time calculation. Consequently, I find the delay occasioned in this case to be unreasonable.

[15]      Mr. St. Martin was given a violation ticket on March 8, 2021. He was given a trial date of October 27, 2022. In January 2022, the court suspended the hearing of traffic tickets for 24 days due to a resurgence of COVID-19 cases. This Court assesses the delay arising from that exceptional and discrete event to be 40 days. There was otherwise no waiver of delay or any defence conduct that caused the delay. The remaining delay is just over 18 months, which is still above the presumptive ceiling. There is no further justification for this passage of time. The delay, therefore, is unreasonable in this case and Mr. St. Martin’s right to be tried within a reasonable time has been infringed. The proper remedy is that of a judicial stay and I so order.