PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Bowser, 2016 NSPC 34 Between: Date: April 14, 2016 Docket: 2379172-73, 2379175-76 Registry: Dartmouth Her Majesty the Queen v. Joseph Wayne Bowser and Ricky Daniel Cameron DECISION ON CHARTER SECTION 11(B) APPLICATION JUDGE: The Honourable Theodore K. Tax DECISION: April 14, 2016 CHARGES: THAT they between the 21 st day of October, 2011 and the 24 th day of October, 2011 at or near Dartmouth, Nova Scotia did unlawfully have in their possession property of a total value exceeding $5,000.00, the property of Mather Freight Management, knowing that it was obtained by the Commission in Canada of an indictable offence, to wit, theft, contrary to section 355(a) of the Criminal Code. AND FURTHER that Ricky Daniel Cameron, at the same time and place aforesaid, did unlawfully steal property of a total value not exceeding $5,000.00, the property of Mather Freight Management, contrary to section 334(b) of the Criminal Code. AND FURTHER that Joseph Wayne Bowser at the same time and place aforesaid, did unlawfully break and enter a place, to wit, a business situate at 165 Burbridge Avenue, Dartmouth, Nova Scotia and did commit therein the indictable offence of theft, contrary to section 348(1)(b) of the Criminal Code. COUNSEL: Peter Craig for the Crown Bernard Thibault for the Joseph Wayne Bowser Patricia Jones for Ricky Daniel Cameron 1
By The Court (Orally): [1] Mr. Joseph Bowser and Mr. Ricky Cameron have been jointly charged with having possession of stolen property of the total value exceeding $5,000.00, namely, the property of Mather s Freight Management, knowing that it was obtained by commission in Canada of an indictable offence, to wit, theft, contrary to section 355(a) of the Criminal Code, between the 21 st day of October 2011 and the 24 th day of October 2011 at or near Dartmouth, Nova Scotia. [2] In addition, Mr. Bowser faces an individual charge that, at the same time and place, he did, unlawfully, break and enter a business place situate at 165 Burbridge Avenue, Dartmouth, Nova Scotia and did commit the indictable offence of theft from a business contrary to section 348(1)(b) of the Criminal Code. Mr. Cameron also faces an individual charge that, at the same time and place, he did unlawfully steal property of a total value not exceeding $5,000.00, the property of Mather s Freight Management contrary to section 334(b) of the Criminal Code. The Crown proceeded by indictment on all charges before the Court. [3] The issue to be determined on this application is as follows: a) Mr. Bowser and Mr. Cameron were charged with the offences before the Court in an Information which was sworn on October 28, 2011. They elected to have a trial in the Provincial Court and entered not guilty pleas on September 13, 2012. The trial evidence commenced on July 22, 2013 and concluded on July 27, 2015. Mr. Bowser and Mr. Cameron have submitted that their right to be tried within a reasonable 2
time as guaranteed by section 11(b) of the Charter has been infringed and they seek a stay of proceedings pursuant to section 24(1) of the Charter. The issue for the Court to determine is whether there was an infringement of that Charter right and, if so, whether in all the circumstances, it is appropriate and just to order a stay of proceedings Factual Overview of the Charter Issue [4] Mr. Bowser was arrested and brought before the Court on October 26, 2011, to be arraigned on an Information sworn October 26, 2011, which charged him with the break, enter and theft of property from Mather s Freight contrary to section 348(1)(b) of the Code and the possession of stolen property of Mather s Freight, contrary to section 355(a) of the Code on or about October 24, 2011 in Dartmouth, Nova Scotia. At the time of his arrest, he was not jointly charged with Mr. Ricky Cameron. Mr. Bowser s bail application was adjourned for one day and on October 27, 2011, he was released on a recognizance with the surety under terms of house arrest and directed to come back to the Court on January 6, 2012. [5] Mr. Cameron was arrested by the police and then made his first appearance to be arraigned on an Information sworn on October 28, 2011. The Information which was sworn on October 28, 2011, was essentially a replacement information, but it now contained three charges: (1) Mr. Cameron being jointly charged with Mr. Joseph Bowser with the offence of the possession of stolen property contrary to section 355(a) of the Code on or about October 24, 2011 in, Dartmouth, Nova Scotia; (2) Mr. Cameron facing a charge relating to the theft of property from Mather s Freight Management contrary to section 334(b) of the Code; and (3) Mr. Bowser 3
facing the break, enter and theft charge of the business premises of Mather s Freight Management contrary to section 348(1)(b) of the Code. On November 1, 2011, Mr. Cameron was released on a recognizance with the surety and a curfew condition and he was directed to come back to Court for election and plea on January 6, 2012. [6] On January 6, 2012, Mr. Cameron and Mr. Bowser made their first joint appearance before the Court. Once counsel confirmed that they were solicitors of record and that they had received disclosure, Mr. Cameron and Mr. Bowser elected the Provincial Court and entered not guilty pleas, on September 13, 2012. Based on the estimated trial length provided to the Court by Defence Counsel and the Crown Attorney, the Court set three days for trial - July 22, 23 and 24, 2013. [7] In addition to setting the three days for trial in July, 2013, the Court directed that a pre-trial conference would be held with counsel on January 21, 2013. During that pre-trial conference, none of the parties advised the Court that any additional days for trial would be required. As a result, the three days which had been scheduled for the hearing of trial evidence were confirmed. [8] As it turned out, the estimate of three days for trial was a significant underestimation of the time needed to hear trial evidence. Further days were required and trial evidence was heard or scheduled to be heard on 13 days, namely on: July 22, 23 and 24, 2013; March 26, 2014; April 2, 2014; April 30, 2014; May 7, 2014; July 25, 2014; December 5, 2014; February 13, 2015; February 23, 2015, May 20, 2015 and concluded on July 27, 2015. Additional court time had been reserved for the completion of the trial evidence on July 28, 2015, but with the closing of Crown s case on July 27, 2015, the following day was no longer required 4
for trial evidence. [9] Following the conclusion of the Crown s evidence on July 27, 2015, the Court granted Defence Counsel a short adjournment to consider whether either one wished to call any Defence evidence. Both Defence Counsel confirmed that they would not be calling any Defence evidence. Then, the Court confirmed that the trial record was now complete. At that point, the Crown Attorney requested the opportunity to file written submissions to cover the factual and legal issues of the case, given the number of days that the matter had been before the Court. The Crown Attorney added that his request to file written briefs was not contingent upon the preparation of any transcripts of the trial proceedings and that he would have his brief prepared within 3 weeks to one month. Both Defence Counsel stated that it was their preference to proceed directly to oral submissions the next day, because of a potential concern that written submissions might delay the ultimate decision and in the case of Mr. Cameron, this pending matter might also affect his parole hearing on the federal sentence on an unrelated matter. [10] Following a brief discussion with respect to the filing of written submissions on the substantive trial issues and potential Defence applications pursuant to section 11(b) of the Charter, the Court confirmed its earlier decision that the parties would file written briefs with respect to their position on the trial issues and then set dates. The Crown Attorney s brief on the substantive trial issues was to be filed by August 31, 2015 with the Defence Counsels replies to be filed by September 18, 2015. [11] Once the Court had determined that written briefs would be filed for the substantive trial issues and as dates were being discussed for the filing of those 5
briefs, Defence Counsel for Mr. Cameron stated that if we are going to adjourn for submissions, Mr. Cameron will probably perfect his Charter motion and that she would like to have her client s section 11(b) Charter application heard at the same time as their substantive trial submissions. Defence Counsel for Mr. Bowser advised of the Court that, as a result of those developments, it was likely that he would also to file a Charter application alleging a violation of his client s section 11(b) Charter right to be tried within a reasonable time. [12] Furthermore, on July 27, 2015, once the Court was advised of the intention of both Defence Counsel to file a section 11(b) Charter application, the Court also directed Defence Counsel to obtain transcripts of each and every one of the preliminary proceedings in relation to this trial as well as any portions of the trial transcript which may have dealt with other issues than trial evidence itself. [13] In addition, the Court established August 21, 2015 as a status date to determine the estimated date when the transcripts would be available for the section 11(b) Charter application. It was also anticipated that on that status date, the Court would establish the dates for the formal filing of their Charter Notices with an overview of the points in issue in relation to the alleged Charter infringement as well as the dates for the filing of briefs on the Charter application. [14] When the parties appeared in Court on the August 21, 2015 status date, it was still unclear when the certified court reporters would have the transcripts available for review by the parties and the Court. Given the fact that the Court was advised that the request for the preparation of transcripts had been recently sent, it was determined that December 3, 2015 at 9:30 a.m. [for the full day if needed] would be 6
scheduled for the supplementary closing arguments, first on the Charter application and then on the substantive trial issues. The Court also directed that the formal Charter notice was to be filed on or before August 31, 2015, with the Charter briefs of Mr. Bowser and Mr. Cameron to be filed by October 23, 2015, and the Crown reply to be filed by November 13, 2015. [15] The Crown Attorney s brief on the substantive trial issues dated August 31, 2015 was received by the Court on September 1, 2015. The substantive trial brief of Mr. Bowser s Defence Counsel was received by the Court on September 21, 2015. The brief of Mr. Cameron s Defence Counsel was received by the Court on September 23, 2015. [16] Although the Court had established the date for the supplementary oral submissions on the substantive trial issues and had established filing dates for the brief on the Charter application on August 21, 2015, it was also recognized that the December 3, 2015 hearing date was based on the parties receiving transcripts of proceedings in late September or early October, 2015, in order to provide the parties with a reasonable opportunity to review them prior to filing their briefs. [17] The Court had already advised counsel that it would not be logical to address the substantive trial issues first and then determine the Charter question, given the stage in the trial proceedings at which the Charter application was being advanced by Defence Counsel. As a result, on August 21, 2015, the Court reiterated its earlier decision that it would have to address the Charter question first, given the potential impact on the substantive trial issues, but agreed with counsel that the submissions on the Charter question and the substantive trial issues could be made on the same 7
date. [18] In addition, on August 21, 2015, the Court also confirmed that, if Defence Counsel encountered problems in obtaining the transcripts of proceedings from the certified court reporters which might impact the scheduled dates for the filing of written briefs, then, Defence Counsel were to request a further status date with the Court in early October, 2015. Counsel for Mr. Bowser wrote to the Court on October 5, 2015 to indicate that the transcripts would probably be ready around October 20, 2015, which was only 3 days before the scheduled date for the Defence briefs. As a result, he requested permission to delay the filing of Mr. Bowser s submissions until November 10, 2015. Given the impact of granting that request on the Crown Attorney s date for filing a reply as well as subsequent correspondence from Defence Counsel for Mr. Bowser, a further status date was set for November 9, 2015. The status date was to obtain an update on the expected date when the transcripts of the trial proceedings would be available to the parties and the Court and make any other adjustments to the dates for the filing of briefs. [19] On the status date of November 9, 2015, the Court was advised that the transcripts were being prepared, they were probably going to be well over 1600 pages in length and Defence Counsel had now been advised that they would only be ready a few days prior to December 3, 2015. Given the anticipated date for the receipt of the transcripts and their estimated length, all of the parties agreed and the Court confirmed that the December 3, 2015 hearing date would be used as a further status date and for setting the date for oral submissions, as well as the dates for the filing of the Charter briefs. 8
[20] On December 3, 2015, the parties advised the Court that they had now received the complete transcript of proceedings, which included approximately 1650 pages for the 13 days during which trial evidence or proceedings were heard in whole or in part, as well as approximately 60 more pages of transcripts in relation to most of the Pre-Trial Appearances of Mr. Bowser and Mr. Cameron. [21] The transcript of the Pre-Trial Appearances included appearances in court on October 28 and November 1, 2011; January 6, April 3, July 30 and September 13, 2012 was prepared on November 3, 2015. Although they are not contained as part of the transcript of those Pre-Trial Appearances, I have reviewed the hearings of the brief appearance made by the Crown Attorney and the two Defence Counsel on June 29, 2012, as well as Mr. Bowser s first two appearances for initial arraignment and his interim release which occurred on October 26 and 27, 2011, respectively. [22] Once all of the transcripts were available to the parties and the Court, on December 3, 2015, the Court then set dates for the filing of briefs and their supplementary oral submissions. After reviewing everyone s availability and court time, the Court set February 2, 2016 as the date for the parties supplementary oral submissions on the Charter section 11(b) application as well as the substantive trial issues. The Court also confirmed that the written briefs on the section 11(b) Charter application - Defence Counsel for Mr. Cameron without his brief by December 11, 2015 and Defence Counsel for Mr. Bowser by December 18, 2015. The Crown Attorney s reply was to be filed with the Court on or before January 8, 2016. [23] As it turned out, Defence Counsel for Mr. Cameron filed her Charter brief on December 11, 2015 and Defence Counsel for Mr. Bowser filed his Charter brief and 9
most of his supporting materials on December 22, 2015. Defence Counsel for Mr. Bowser also filed an affidavit in support of his section 11(b) Charter application on January 12, 2016. The Crown Attorney filed his written brief in reply to the Defence Counsels section 11(b) Charter Application with the Court on January 28, 2016. [24] On February 2 nd, 2016, Counsel made their supplementary oral submissions on their previously filed written briefs in relation to the section 11(b) Charter application as well as in relation to the substantive trial issues. The Court indicated that judgment on both issues would be reserved until April 14, 2016. The Positions of the Parties relating to Unreasonable Delay [25] It is the position of the Crown that the fact that Mr. Bowser and Mr. Cameron have been jointly charged in the Information is a significant and overarching feature of the procedural history of this matter. The first time that both Mr. Bowser and Mr. Cameron appeared in court was on January 6, 2012. Defence Counsel for Mr. Bowser had only been retained three days prior to that appearance and Defence Counsel for Mr. Cameron indicated that she had not met her client and was not expected to see him before the end of January, 2012. The Crown Attorney submits that the record reflects the fact that Defence Counsel were not in a position to set trial dates, due to developing disclosure requests, time to review that material and obtain instructions from clients, bail variations and other discussions which the Crown Attorney attributes to Inherent Time Requirements which are a neutral factor in the assessment of delay factors. [26] On September 13, 2012, when the accused made their election to have a trial 10
in Provincial Court and not guilty pleas were entered, Defence Counsel estimated that the trial might take a couple of days and then the Crown suggested that three days would be required. The Court set three days for trial from July 22-24, 2013, and all parties agreed without any further comments or objection. A pre-trial conference was held on January 21, 2013 and no one suggested that any additional days for trial should be added, with the result, that the three-day trial was confirmed. It is the position of the Crown that, with the benefit of hindsight, the estimates of time were clearly inadequate, taking into account the Defence trial strategy which included numerous evidentiary objections which could not have been foreseen by the Crown Attorney. The Crown Attorney disputes the position of Defence Counsel that the Crown has the sole responsibility for providing a fair estimate of the time to be allocated for trial, since that estimate is obviously impacted by the manner in which the Defence conducts its case. [27] The Crown Attorney also submits that the circumstantial nature of this case, the reconciliation of physical exhibits seized with photographs of items allegedly stolen and items remaining at Mather s Freight, details of the nature of various exhibits and items stolen, and review of video evidence from two locations as well as jointly charged accused persons all added to the complexity and length of the case. In addition, the Crown Attorney notes that the length of the trial was also affected by one day of trial being lost due to confusion on his part, but he submits that one of the Defence Counsel was also confused about that continuation date and that a half-day was also lost due to the illness of one of the Defence Counsel as well as another full day being lost when one of the accused did not appear for trial. [28] In the final analysis, it is the position of the Crown that the accused have not 11
discharged their respective evidentiary burdens on this application and therefore, the application should be dismissed. In the alternative, the Crown Attorney submits that the accused have waived in whole or in part their right to complain of delay by their agreement to adjournments or subsequent trial dates. [29] However, if the Court was not to resolve this application on either an express or implied waiver by Defence Counsel, it is the position of the Crown that the Court must balance the individual and societal interests at play in this application. In doing so and determining whether to order a stay of proceedings under section 24(1) of the Charter, the Court ought to take into account the seriousness of the charges in this case, the societal interests at play, the fact that the additional days should be attributed to Inherent Time Requirements, the relative lack of prejudice to the accused and the fact that several Court of Appeal decisions have held that the remedy of a judicial stay is one that should only be granted in rare and exceptional circumstances. The Crown Attorney submits that this is not one of those rare and exceptional cases and the Charter application should be dismissed. [30] It is the position of Defence Counsel that they have met the initial burden of showing that the delay in this case has been so long as to warrant an inquiry into the reasons for the delay. According to R. v. Kalanj, [1989] 1 SCR 1594, the critical period of time to be considered on this application is from the time when the information or charge was sworn until the completion of the trial. In this case, the Information was sworn against Mr. Cameron on October 26, 2011, the first day of the trial was on July 22, 2013, the closing submissions on the section 11(b) Charter application and the substantive trial issues were made on February 2, 2016. Therefore, Defence Counsel submit that a total of 51 months and seven days will 12
have elapsed from the swearing of the Information to the anticipated conclusion of the trial, and Defence Counsel submit that this period of time is of sufficient length to raise an issue as to its reasonableness. [31] Defence Counsel acknowledged that much of the delay in this case is the result of the trial taking significantly longer than the original three days requested by the Crown Attorney. The trial evidence and submissions have taken two years, seven months and ten days to be heard and while the trial issues may have been complex and may have unfolded in unexpected ways, it is the position of the Defence that the trial should not go so far outside the original anticipated trial time, especially in light of the fact that the accused declined to call evidence. [32] Defence Counsel further submit that the timeframe of just over 20 months from the laying of the Information to the first trial date, while being somewhat longer than the framework guidelines established in R. v. Morin, [1992] 1 SCR 771, was not unduly long given the complexity of the case and the original trial time estimate. However, it is the position of the Defence that it is incumbent on the Crown Attorney to properly estimate the time required for the Crown to call its case and to be aware of the Inherent Time Requirements within the case. Therefore, the original time estimates provided by the Crown Attorney should be accurate, provided that the Defence does not call evidence and assuming that no admissions are made. [33] With respect to the waiver of time periods, Defence Counsel note that the requirements of a waiver are very stringent and that for an accused to waive his or her rights under section 11(b), such waiver must be clear and unequivocal. Defence Counsel maintain that, while there was some delay in being retained by their clients 13
in the first few months after the Information was sworn, all of the subsequent adjournment requests were for disclosure and for dates to complete the trial evidence. Defence Counsel acknowledged that the pursuit of the Charter violation did result in a further delay of two months between December 3, 2015 and February 2, 2016, which would likely be considered as a waiver by them of that time period according to the R. v. Askov, [1990] 2 SCR 1199; 1990 Carswell Ont 111, test. [34] It is the position of the Defence Counsel that, when the Court examines the reasons for the delay, the Inherent Time Requirements for a case will depend upon its complexity. Here, the case had numerous exhibits which would not necessarily make the case overly complex, however, they do acknowledge that that there was a complexity to the case, but it was unnecessary for the trial to take such a significant amount of time. [35] With respect to the factor relating to the actions of the accused, it is the position of the Defence that the accused were diligent in the retention of counsel, the pursuit of disclosure and there was no fault on the part of the accused that the adjournments were granted due to the Crown s case taking such a significant amount of time. While Defence Counsel acknowledged that there were, on occasion, dates offered for the continuation of the trial when they were unavailable, once the delay became more apparent, Defence Counsel made efforts to make themselves available and pressed the Crown to use all available court time for the hearing of evidence. [36] Defence Counsel submit that the actions or the omissions of the Crown have caused an unreasonable delay in the proceedings. Initially, Defence Counsel submit that there was a delay in the receiving and forwarding of disclosure to them. More 14
importantly, it is the position of the Defence that the main reason for the delay in this case was the inappropriate estimate of time requested by the Crown for trial. Defence Counsel maintain that the Crown Attorney is in the best position to anticipate trial time, to be fully aware of the nature of its case and to be certain that enough time has been allotted for trial. Defence Counsel also point to the delays during the trial caused by the Crown, such as needing additional time to set up exhibits and going through photographs to eliminate commentary and matching exhibits with photographs as well, some earlier dates which were proposed by the Court for trial continuation, were not taken due to the unavailability of the Crown Attorney. Finally, Defence Counsel submit that the Crown Attorney s confusion over a trial continuation date (February 13, 2015) resulted in the loss of a day and that the Crown Attorney s desire to provide written closing statements also contributed to the overall delay in the completion of the case. The Framework for section 11(b) Charter Analysis [37] The relevant Charter provisions in determining an application where a person alleges that he or she has not been tried within a reasonable time are found in sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms (the Charter) which reads as follows: Section 11(b) - Any person charged with an offence has the right to be tried within a reasonable time. Section 24(1) - 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. 15
[38] The framework for analyzing an alleged breach of the right to be tried within a reasonable time pursuant to section 11(b) of the Charter, was initially formulated by the Supreme Court of Canada in Askov, supra and then more fully developed in Morin, supra with further clarifications added by the Supreme Court of Canada in R. v. Godin, 2009 SCC 26. [39] The Supreme Court of Canada noted in Askov, supra [in 1990 Carswell Ont at paras. 75-77] and reiterated in Morin, supra, at paras. 26 to 30, that section 11(b) of the Charter focuses upon the individual interest of liberty and security of the person, by taking into account the fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty and that they should not be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The individual rights which the section seeks to protect are: (1) the right to security of the person; (2) the right to liberty; and (3) the right to a fair trial. In addition, there is also a societal interest in ensuring that those who transgress the law are brought to trial and dealt with according to law, but at the same time, those individuals must be treated fairly and justly. [40] As the Supreme Court of Canada explained in Morin, supra, at paras 26-30, the right to security of the person protected in section 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pretrial incarceration and restrictive bail conditions, while the right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. 16
[41] At the same time, a secondary societal interest parallels the interest of the accused, as society as a whole has an interest in seeing that those accused of crimes are treated humanely and fairly and that trials held promptly, enjoy the confidence of the public. However, the Court also observed that, in some cases, the accused has no interest in an early trial and society s interest will not parallel that of the accused. [42] The Supreme Court of Canada also noted in Morin, supra at para. 30, that there are times when a societal interest is by its very nature adverse to the interests of the accused. The majority judgment in Morin, supra written by Sopinka J. commented on this theme, which was initially observed by Cory J. in Askov, supra when he referred to a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law (see pp.1219-20 [SCR]). Sopinka J. added in Morin, supra, also at para. 30:... as the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [43] In Morin, supra, at para. 31, Sopinka J. stated that the general approach to a determination as to whether the right to a trial within a reasonable time has been denied, is not by the application of the mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay. The Supreme Court of Canada also noted, at para. 31, that it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable? 17
[44] Having established the individual and societal interests at issue in the analysis of a section 11(b) Charter application in Morin, supra, Sopinka J. stated that the Court had now accepted that the factors to be considered in analyzing how long is too long, are as follows: a. the length of the delay; b. waiver of time periods; c. the reasons for the delay, including i. Inherent Time Requirements of the case, ii. actions of the accused, iii. actions of the Crown, iv. limits on institutional resources, and v. other reasons for delay; and d. prejudice to the accused. [45] In Morin, supra, at para. 32, Justice Sopinka added that the judicial process of reviewing those factors is referred to as balancing which requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interest which section 11(b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, [1989] 1 SCR 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests section 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused. 18
[46] More recently, in R. v Godin, 2009 SCC 26 at para. 18, Justice Cromwell, writing for the Supreme Court of Canada reaffirmed the Morin, supra framework and factors to be considered in a section 11(b) Charter application: [18] The legal framework for the appeal was set out by the Court in Morin, at pages 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that section 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin at p. 787, [t]he general approach is not by the application of the mathematical or administrative formula but rather by a judicial determination balancing the interests which [section 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay. [47] I find that these comments by Justice Cromwell relating to the framework for analyzing a section 11(b) Charter application in Godin, supra, and in particular, to not to lose sight of the forest for the trees reminds us to keep in mind that the facts of the case are the context in which we analyze the guidelines set out in Morin, supra. In Godin, supra Justice Cromwell noted at para. 4 that three critical elements contributed to the delays in the case a long delay in obtaining and then disclosing potentially important forensic evidence; a failure to acknowledge Defence Counsel s effort to obtain earlier dates and the need to adjourn a long-delayed preliminary inquiry because there was not sufficient time for it to proceed on the scheduled date, with the result that a one-day preliminary inquiry was not completed until 21 months after the charges had been laid. Although the Morin, supra guidelines were substantially exceeded in the case, the critical issues were contextual factors, as 19
Cromwell J. pointed out, in Godin, supra, at para. 5: That, on its own, does not make the delay unreasonable. The difficulty in this case, in my view, arises from the considerable delay coupled with three additional facts: (1) the case is a straightforward one with few complexities and requiring very modest amounts of court time; (2) virtually all of the delay is attributable to the Crown and is unexplained, let alone justified; and (3) defence counsel attempted, unsuccessfully, to move the case ahead faster. [48] Sopinka J. had stated in Morin, supra, at para. 51, that the guideline which had been established by the Court in Askov, supra was just that, simply a guideline and not a limitation period. A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors, since the Court acknowledged that the guideline is not the result of any precise legal or scientific formula, but rather, the result of the exercise of judicial discretion. Moreover, Justice Sopinka also stated in Morin, supra, at para. 53, that the application of a guideline will also be influenced by the presence or absence of prejudice. [49] In Morin, supra, at para. 36, Sopinka J. observed that an inquiry into unreasonable delay is triggered by an application under section 24(1) of the Charter and that the applicant has the legal burden of establishing a Charter violation. It was noted that the inquiry, which can be complex, should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unless the applicant is able to raise the issue of reasonableness of the period by reference to other factors such as prejudice. [50] In R. v. Tran, 2012 ONCA 18 at para. 21, the Ontario Court of Appeal referred 20
to those comments of Sopinka J. as the screening mechanism to determine whether an inquiry into the reasonableness of the delay is warranted. The Court of Appeal noted that if the overall length of the delay, when considered in the context of all of the circumstances (such as whether the accused is in custody), is unexceptional, no inquiry is required. Where an inquiry is warranted, time periods waived by the accused should be deducted from the overall length of the delay before considering the reasons for any remaining delay. [51] In this case, there is no real dispute between the parties as to the relevant analytical framework or to the applicable legal principles and guidelines. However, the parties do not agree on the particular application of those principles to the relevant facts of this case. 1. The Overall Length of the Delay [52] This factor, as I indicated previously, is simply a screening mechanism to determine whether an inquiry into the reasonableness of the overall delay is warranted. In essence, this first factor is simply a threshold determination of the excessiveness of the delay and it is only necessary to go further and consider the other 3 factors in the legal framework if the overall period of delay is of sufficient length to raise an issue as to its reasonableness. See R. v. Askov, supra, at pp. 1209-10 [SCR]. [53] The replacement Information was sworn on October 28, 2011. The closing submissions of counsel on the section 11(b) Charter application and the substantive trial issues were made on February 2, 2016. As a result, this represents a period of 21
approximately 51 months between the time that Mr. Bowser and Mr. Cameron were charged and the conclusion of the trial. In addition, counsel have noted that it was approximately 20 months from the time that the 2 co-accused were charged with the offences before the trial commenced in late July, 2013. In total, trial evidence was heard on or scheduled to be heard on a total of 13 days over a period of 24 months, with the trial evidence being completed in late July, 2015. [54] There is no real dispute between the parties that the passage of time in this case is sufficient to call for further examination. 2. Waiver of Time Periods [55] In the legal framework established by the Supreme Court of Canada, it is expected that the trial judge will examine the chronology of events on a section 11(b) Charter application and that a waiver of time periods can be either express or implied, but it must be clear and unequivocal and made with full knowledge of the rights the procedure was enacted to protect. When counsel expressly state, that section 11(b) is waived for the period of an adjournment, there is little difficulty in applying this factor. However, a waiver can also be implied, for example, from consent to a period of delay where a choice has been made between available options and the actions of the accused amounted to an agreement to the delay rather than mere acquiescence in the inevitable. Once a waiver has been found, that period of delay is simply removed from the section 11(b) analysis and the overall delay is shortened. See R. v. Askov, supra, at page 1247 [SCR] and R. v. Morin, supra, at para. 38. 22
3. The Reasons for the Delay [56] The Supreme Court of Canada has repeatedly stated that the analysis of this factor does not involve findings of fault or attributing blame to one side or the other, as there can be good or necessary reasons for delay. This factor simply requires the Court to conduct an objective analysis of each period of delay in order to determine its cause. As mentioned previously, the 5 traditional causes are: (1) the Inherent Time Requirements of the case; (2) any actions of the Defence; (3) any actions of the Crown; (4) limitations on institutional resources; and (5) other miscellaneous causes, such as judicial delays. [57] Given the analysis that the Supreme Court of Canada expects the trial judge to conduct with respect to each one of those potential causes of delay, they have recognized that the Court must do a careful analysis of the transcripts of each date where the proceedings were held. Having objectively determined the cause of each period of delay, based upon the transcripts and any other relevant evidence, this factor then determines whether delays are attributed to the Crown, attributed to the Defence or are said to be neutral. [58] The Supreme Court of Canada has also acknowledged in their decisions that some delay is inevitable as courts are not in session day and night. Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare. Over and above those Inherent Time Requirements of the case, time may be required to accommodate the busy schedules of the prosecution or the defence. However, neither side can rely on their own delay to support their respective positions. See 23
Morin, supra, at para. 40. a) Inherent Time Requirements [59] As stated in Morin, supra, at para. 41, all offences have certain Inherent Time Requirements which inevitably lead to delay. The complexity of the trial is one requirement which is often mentioned, and assuming that all other factors being equal, the more complicated a case, the longer it will take for counsel to prepare for trial and for the trial to be conducted once it begins. Each case will bring its own set of facts to be evaluated, but account must also be taken of the fact that counsel for the Prosecution and the Defence cannot be expected to devote their time exclusively to one case. [60] In addition, the Supreme Court of Canada also noted in Morin, supra at para. 42, that there are other Inherent Time Requirements which are common to almost all cases such as intake requirements which consist of retention of counsel, bail hearings, police and administration paperwork, disclosure, etc. However, as the number and complexity of activities which are necessary increase, so does the amount of delay that is reasonable. For that reason, it is important to keep in mind that the Supreme Court of Canada in Morin, supra, at para. 42, specifically declined to set an administrative guideline for such an intake period. [61] Another inherent delay which must be taken into account is whether the case must proceed through a preliminary inquiry. Clearly, a longer time must be allowed for cases that must proceed to a two-stage trial process than for cases which do not require a preliminary hearing. Obviously, this consideration is not relevant in this 24
case, as the accused persons elected trial in the Provincial Court. [62] In conducting an analysis as to whether a trial has taken an unreasonable time, it bears repeating that the Supreme Court of Canada has only created an administrative guideline of eight to ten months from the time the parties are ready to proceed to trial to the start of a trial in Provincial Courts, not a limitation period. It must also be kept in mind that the Supreme Court of Canada did not establish an administrative guideline for the intake period and added that the length of time needed for that period and other Inherent Time Requirements will be influenced by the local practices and conditions in a jurisdiction. [63] In the Dartmouth Provincial Court, where several trials are scheduled during the day, finding a full day for one trial is a challenge, especially for accused persons who are not in pre-trial custody. As one might reasonably expect, the Court gives priority to its earliest trial dates to those accused who are remanded in pre-trial custody and accordingly, the Inherent Time Requirements for a full day of court or more of an accused person or persons who are not in pre-trial custody is often several months. b) Actions of the Accused [64] The analysis of this factor of the reasons for the delay should not be read as putting the blame on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. The Supreme Court of Canada noted in Morin, supra, at para. 44 that all actions which were voluntarily taken by the accused which may have caused delay, are to be 25
considered. Actions such as change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. are to be considered. However, the Supreme Court of Canada made it clear that it was not advocating that an accused person sacrifice preliminary procedures or their trial strategy, but the Court simply made the point to state that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable. c) Actions of the Crown [65] As with the conduct of the accused, the Supreme Court of Canada pointed out in Morin, supra, at para. 46 that this factor does not serve to blame the Crown for certain portions of the delay. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated, for example, adjournments requested by the Crown, failure to disclose information or a delay in disclosure of relevant information, change in venue motions, etc. [66] In this case, the Defence does not seriously take issue with respect to the actions of the Crown with respect to any failure to provide disclosure or to provide timely disclosure of materials. Defence Counsel do, however, take issue with the original estimates of the amount of time required for trial, which they submit was the sole responsibility of the Crown Attorney when the Court established the three days for trial in July, 2013, after the accused persons made their elections and entered not guilty pleas in September, 2012. The Defence also submits that the manner in which the Crown Attorney prosecuted this case, utilizing a combination of photographs and physical exhibits and reviewing that evidence with several 26
witnesses added to the length and complexity of the case and resulted in a significant amount of additional time being required, over and above the original estimated time, to complete the trial evidence. [67] For his part, the Crown Attorney submits that the numerous and frequent objections made by Defence Counsel during the trial had a profound effect on the length and complexity of a circumstantial case with multiple accused. d) Limits on Institutional Resources [68] Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of section 11(b) at the Charter. As Justice Sopinka said in Morin, supra, at para. 47 this is the period that starts to run when the parties are ready for trial, but the system cannot accommodate them. He pointed out that the Court would no longer tolerate delay based upon the plea by government of inadequate resources, but also added that this period of time may be referred to as an administrative guideline which is neither a limitation period, nor a fixed ceiling on delay. [69] In assessing this factor, the Supreme Court of Canada observed that a trial court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were ready to try the case. However, when the case is actually ready for trial and a judge, courtroom or essential court staff are not available so that the case cannot go forward, that delay is attributed to institutional or systemic delay. 27
[70] It should be noted that although this institutional delay is not the fault of the Crown, any delay that is attributed to this factor, weighs against the Crown in the overall assessment of whether there has been an unreasonable delay in the completion of the trial. [71] In Askovm supra, Sopinka J. had pointed out that the Court was dealing with a delay of approximately two years subsequent to committal for trial and that all of that delay was institutional or systemic delay. In that case, the Court suggested a period of eight to ten months as a guideline for institutional delay for Provincial Courts. In Morin, supra, at para. 57, Sopinka J. acknowledged that the suggested periods of time were for the guidance of trial courts generally and that they would require adjustments by trial courts in various regions of the country to take into account local conditions and changing circumstances. [72] As I indicated previously, the Dartmouth Provincial Court is one of the busiest courts in the Province of Nova Scotia and not surprisingly, it has one of the longest court backlogs in the Province. Unlike some of the other judicial centers in the Province of Nova Scotia, the Dartmouth Provincial Court had, for a number of years, been setting trial dates of between eight to 12 months later for trials of one day or more, for an accused person who was not detained in pre-trial custody. [73] While that period of institutional delay is slightly above the administrative guidelines which were established by the Supreme Court of Canada in Askov supra, it is important to remember and take into account that the Court established those guidelines at a time when the Charter had only been in force for a few years. In my view, the Supreme Court of Canada had envisioned the impact that an overly broad 28
section 11(b) of the Charter decision would have on Canada s legal environment and for that reason, they added the proviso that the guidelines were not to be interpreted as limitation periods and that trial courts should take into account local conditions and changing circumstances. [74] In this case, the Defence submits that the first period of institutional delay was from September, 2012 when the accused elected to be tried in the Provincial Court and pled not guilty to the start of the trial in late July, 2013. Therefore, they submit that the first period of institutional delay was approximately 10 months, which both Defence Counsel have acknowledged was within the administrative guideline established by the Supreme Court of Canada in Askov and reiterated in their Morin, supra decision. Taking into account what the Supreme Court of Canada referred to as local conditions and changing circumstances, I find that the setting of the initial trial dates in July 2013, was well within an administrative guideline of 8 to 12 months for this judicial district, even if I was to consider that entire period of time to be attributed to institutional delay. [75] As a result, the real issue to be determined in this case in relation to the applicants section 11(b) be Charter application is whether a trial that was started within that administrative guideline, but took longer to complete than was originally estimated by the parties when the trial dates were established, which necessitated several additional trial dates to complete the trial, then contravened the applicants section 11(b) Charter rights to be tried within a reasonable time. [76] In my view, in examining the issue of the limits of institutional resources, it is important to keep in mind that the Supreme Court has said that this is not a 29