IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         On March 11, 2024, I heard Mr. Bhoot's application urging me to find that the Court is without jurisdiction to hear the allegation that he breached his Conditional Sentence Order, as the hearing of the allegation has not commenced within 30 days or as soon as practicable after his arrest, as prescribed by the Criminal Code.

[2]         On that date, I reserved my decision, and these are my reasons on the Application.

[3]         If a transcript of these reasons is ordered, I will provide the full citations of the cases referred to, and I may make minor edits not affecting the substance of my decision.

[4]         The Applicant, Mr. Bhoot, provided an affidavit in support of the Application, written submissions, and six case authorities.  The Crown also provided written submissions and four case authorities.

[5]         I have had the opportunity to thoroughly review all the materials that have been filed, although I do not refer to all the cases I have been provided in these reasons.

[6]         On February 24, 2023, I sentenced Mr. Bhoot after he pled guilty to one count, trafficking a controlled substance contrary to s. 5(2) of the Controlled Drugs and Substances Act, to a Conditional Sentence Order for a duration of two years less a day.

[7]         On June 21, 2023, Mr. Bhoot was arrested after Abbotsford Police Department members executed a search warrant on his residence and released him without charges or process.  On August 30, 2023, a warrant for arrest was issued for Mr. Bhoot with respect to three breach allegations as outlined in Information 93207-2S.

[8]         On September 1, 2023, Mr. Bhoot was arrested, appeared before the Honourable Judge Harris on the same day, and the matter was adjourned to September 8, 2023.

[9]         The matter was adjourned on four subsequent occasions until it went before Judge Harris for a Judicial Interim Release hearing on September 19, 2023.

[10]      On September 26, 2023, Judge Harris delivered her reasons on the Judicial Interim Release hearing, and Mr. Bhoot was detained.  The issue of outstanding disclosure was canvassed, and Crown counsel advised the Court that he was expecting the "full package from Abbotsford police by the end of the week, and it will be expedited."  The matter was put over for an update regarding disclosure.

[11]      On October 10, 2023, the matter came back for an appearance in front of the Honourable Judge Sidhu.  The issue regarding disclosure remained outstanding and the matter was adjourned again.  When Judge Sidhu asked Crown counsel if the next date would be a fix date for a hearing, the Crown confirmed it was.

[12]      On October 24, 2023, the matter came back before the Court in front of the Honourable Judge Nadon.  The issue regarding disclosure remained outstanding, and Crown counsel advised the Court that defence counsel "wishes to have that info before we set down how long we need for the CSO breach hearing."

[13]      On November 7, 2023, the matter came back before the Court in front of the Honourable Judge Young.  The issue of disclosure remained outstanding.  Judge Young inquired of Crown counsel if it was the intention to set the breach hearing, and he agreed.

[14]      On November 24, 2023, the matter came back before the Court in front of me.  Defence counsel stated that the matter was still waiting to be set for hearing and Crown counsel confirmed this information.  The issue of outstanding disclosure remained outstanding.

[15]      On November 29, 2023, the matter was again before me.  The concerns raised were the delay in the disclosure and the concern that my schedule may cause a delay in the hearing dates being set expeditiously.  Crown counsel put on the record that he was "not opposed to any judge hearing the CSO hearing."

[16]      The parties were directed to set the earliest possible dates and were invited to bring the matter back before me if concerns were identified about my periods of unavailability.  A three-day hearing was set for March 11^th, 12^th, and 13^th, 2024.

[17]      On February 16, 2024, the matter came back before me for an application with respect to outstanding disclosure and a corresponding application to adjourn the hearing as a result of the outstanding disclosure.

[18]      I granted the application to adjourn the hearing, given the Crown's acknowledgment that over 1160 documents had not been vetted for disclosure.  I adjourned the application for an order for disclosure to March 1^st, and on March 1^st, counsel advised disclosure had been provided.

[19]      The disclosure application went over to March 11, 2024, the day I reserved for the purposes of this preliminary application.

[20]      The last update that I received is that the hearing dates have not been reset.

[21]      The issues before me are as follows:

[22]      Section 742.6(3) of the Criminal Code states as follows:

[23]      The Crown advanced alternative arguments as to why Mr. Bhoot's application should be dismissed: one is that the hearing did commence on either the first day Mr. Bhoot appeared before the Court on September 1, 2023; or the first day he appeared before me, the sentencing judge, on November 24, 2023.

[24]      Crown counsel, Mr. Lepine, acknowledged that in his experience, it is common for a court to be asked to declare a breach hearing to be commenced at a bail hearing or at a fix date.  Evidence and submissions are then heard in what is formally a continuation of the hearing that has already commenced.  He stated, "that avoids running afoul of s. 742.6(3)."

[25]      This did not occur in Mr. Bhoot's case on any of the 17 court appearances from the date of his arrest to March 11, 2024.  If that had happened, it would be an entirely different factual background.

[26]      The issue of commencement was square before the Court in our province in R. v. Hauser, [2007] B.C.J. No. 3068.  Before Justice Joyce was an application for judicial review of a Provincial Court Judge's decision to dismiss a conditional sentence breach allegation.  Mr. Justice Joyce considered the Ontario Court of Appeal case of R. v. Greville, 2002 CanLII 44901 (ON CA), 158 O.A.C. 183.  In Greville, the judge, before which the appellant appeared in the lower court, stated that he would "take jurisdiction of the matter" and adjourned the case without evidence being called.  The Court of Appeal in that case found that the hearing had commenced.

[27]      The Crown in Hauser was urging a similar approach, saying that a hearing can commence without submissions being made and evidence heard.

[28]      Justice Joyce then reviewed the facts before him and stated at paragraph 16:

[29]      The case before me is factually similar to Hauser.  The intention in Mr. Bhoot's case was always to fix a date for hearing before me.  At no time did a judge commence a hearing or was asked to commence a hearing.  Over the course of the many appearances, the phraseology was used by both Crown counsel and Mr. Bhoot to set the "hearing date".

[30]      The Crown takes the position that the Court had no jurisdiction to grant the adjournment on February 16, 2024, if the breach hearing had not commenced.  I disagree.

[31]      Section 742.6(1) of the Criminal Code, procedure on breach of a condition, states in part as follows:

[32]      The use of two different and distinct terms in subsection (1)(c), “proceeding”, and subsection (3), “hearing”, is purposeful.  The Court has jurisdiction over Mr. Bhoot as a result of the proceeding being commenced pursuant to s. 742.6(1)(c).  This is separate and apart from the hearing prescribed in s. 742.6(3).

[33]      In the proceeding before me, I granted the application for an adjournment of the hearing of the breach allegation.  I did not need to commence a hearing to do so, just like I would not need to commence a trial on a criminal matter in order to grant an adjournment of future trial dates.

[34]      I find that the hearing of the allegation that Mr. Bhoot breached his Conditional Sentence Order has not commenced.

[35]      The Crown argued that in the event that it is determined that the hearing had not commenced, then it will have commenced as soon as practicable.

[36]      I am told that the parties are actively working toward rebooking the hearing dates that were adjourned on February 16, 2024.

[37]      Mr. Bhoot concedes that it would not have been reasonable to expect a hearing on the breach allegation to have commenced within 30 days of his arrest.  The breach allegations arise as a result of a search warrant executed on June 21, 2023 at Mr. Bhoot's residence, a search warrant that Mr. Bhoot says raises Charter breach allegations.

[38]      The Crown was aware of Mr. Bhoot's intention to raise Charter challenges in the context of the breach hearing.

[39]      In an email to the Court on September 22, 2023, Crown counsel indicated that he expected to receive full disclosure, including the information to obtain the search warrants by "the end of next week."

[40]      On November 1, 2023, Mr. Bhoot's counsel received the search warrant for the residence, the information to obtain the search warrant for the residence, tracking warrant for a cell phone number, and the information to obtain for the cell phone number, which was well after the end of the next week.  No police notes or witness statements were provided.

[41]      On November 8, 2023, Mr. Bhoot's counsel sent out a further request for these materials.  Full disclosure was not provided until February 21, 2024.

[42]      There were seven court appearances with respect to disclosure, including as a result of a formal disclosure application after Mr. Bhoot was detained on September 26, 2023.

[43]      Upon detaining Mr. Bhoot, Judge Harris made the following comments to Crown counsel:

[44]      I note that at no time at any of the court appearances or any of the correspondence to defence counsel did Crown suggest the requests made for disclosure were inappropriate.

[45]      Given the allegations of breach arise solely from the execution of a search warrant, the Crown knew from the date of Mr. Bhoot's arrest that all disclosure related to the search would need to be disclosed as soon as possible.  It needed to be given the priority of expediency that it was not.

[46]      Allegations of breach of a Conditional Sentence Order do not often give rise to Charter arguments.  Mr. Bhoot's case did.  As such, it would not be reasonable for the commencement of the hearing to occur within 30 days of his arrest.

[47]      Even with this complexity acknowledged, I find that not commencing the hearing within seven months of Mr. Bhoot's arrest is not as soon as practicable.  The Crown and police had an obligation to provide the appropriate and required disclosure to defence counsel with priority.  I reject the argument that the hearing will have commenced as soon as practicable.

[48]      The Crown further argued that failure to comply with s. 742.6 does not result in a loss of jurisdiction over the offender.  I agree.

[49]      The Court as a sentencing court retains jurisdiction over Mr. Bhoot.  However, I cannot embark upon a hearing that is prohibited by the Criminal Code.  I note the comments made in R. v. Luu, [2106] O.J. No. 1150, a case out of Ontario.  In that case, Justice Forestell said that if he had not found that 60 days was "as soon as practicable " to commence the breach hearing, he would have found that it would have not resulted in a loss of jurisdiction, suggesting it is akin to a procedural technicality.

[50]      I do not find the delay in Mr. Bhoot's case to be akin to a procedural technicality.  To the extent that Luu stands for this proposition, I decline to follow the same approach.  I prefer the approaches of the Honourable Judges Challenger and Chettiar in our Provincial Court in R. v. Felton, 2005 BCPC 227 and R. v. Lajoie, 2020 BCPC 281 respectively, where they refused to hear the breach hearing for failing to comply with the requirement to commence the proceedings as soon as practicable.

[51]      I further note that the delay in all of Luu, Felton and Lajoie is significantly less than in the case before me.

[52]      I find that the hearing cannot proceed because it did not commence as required by s. 742.6(3).  I do not accept that I somehow maintain jurisdiction to hear the breach allegation after concluding that the hearing did not commence as required.

[53]      I will address the Crown's remaining submission that jurisdiction can be regained.  This is more of a statement than an argument.  I acknowledge that it is permissible and such a decision may attract further applications.

[54]      The fact that the Crown can submit a new breach allegation does not change my interpretation of 742.6.

[55]      I find that the Court has lost jurisdiction to hear the impugned allegations of breach of the Conditional Sentence Order.