This week’s top three summaries: R v Wells, 2020 ONCJ 294, R v Robinson, 2020 BCPC 122, and R v TSH, 2020 SKPC 25.
R v Wells (ONCJ)
[June 12, 2020] Interpretation of s. 320.16(2) CCC - Failure to Stop at the Scene of an Accident - 2020 ONCJ 294 [Justice B. Knazan]
AUTHOR’S NOTE: The December 2018 revamp of criminal driving laws saw a rewording of the criminal failure to stop at the scene of an accident. Herein, Justice Knazan provides a well-reasoned interpretation of the offence. The Crown prosecutor's attempt to expand the offence to include a failure to report name/address after the fact was rejected and an interpretation of reasonable excuse was undertaken. It is noteworthy that it explicitly differs from Emond's publishing Impaired Driving and Other Driving Offences in Canada 2019 text in that Justice Knazan holds that a reasonable excuse is just that, a defence instead of an element to be disproved as part of the Crown's obligation to prove the offence beyond a reasonable doubt.
Pertinent Facts
[1] In December 2018, Parliament recast the offence of failing to stop and provide a name and assistance after a collision. The new section incorporates a legal defence of reasonable excuse. This case raises the issue of whether a driver is somehow required to stop or provide their name after leaving the scene of the collision even though they had a reasonable excuse for failing to stop at the scene, provide a name and offer assistance.
[2] On March 23rd , 2019, Gordon Wells was driving and collided with a bicycle that Christopher Crawford was riding on Breadalbane Street in central Toronto. After the collision he reversed and drove away.
[6] As clearly appears from the charge that I have set out there are several elements that the prosecution must prove beyond a reasonable doubt to make out this charge. Some are conceded and there is no need to discuss them as separate elements, namely, Mr. Wells was driving, his conveyance was involved in an accident that resulted in bodily harm to Christopher Crawford, Mr. Wells knew that and failed to give his name and address or offer assistance.
[7] There is a dispute about whether he stopped his vehicle at all when he backed up, but since the driver is required to do three things, stop, give their name and address, and render assistance when possible, the offence is proven whether he stopped or not.
[21] In dismissing the charges of assault and dangerous driving I accepted Mr. Wells’s evidence that he did not intend to drive into Mr. Crawford in any way and that the manoeuvre that caused the accident came about as he described. That is, although he was at fault for not seeing the cyclist, not having seen him, he was surprised by his appearance to his left. Confronted by a screaming swearing cyclist who was on his left side and hit his side mirror, he turned first to the right and then when he turned back to avoid the curb, he unintentionally hit the bicycle with his car.
Issues
[8] This leaves two issues for determination.
[9] The first issue is more straightforward. Did Mr. Wells have a reasonable excuse for failing to stop and provide his name and address? The prosecution need not prove that he did not, as an element of the offence. Mr. Wells must establish that he had a reasonable excuse on a balance of probabilities.
[11] Mr. Wells’s reason for failing to stop as the law requires, was that he was afraid. He was afraid because Mr. Crawford had struck and damaged his vehicle while on his bicycle before the collision and that after the collision Mr. Crawford got up, walked over to his car window and punched him hard in the face, knocking off his glasses and injuring him.
[12] Should I find that this gave him a reasonable excuse for driving away, the issue is whether Mr. Wells was required to stop his vehicle at the first opportunity that it was safe for him to do so, as the prosecution contends....
A Reasonable Excuse
[28] ... Whether or not Crawford’s subjective perception was justified, I believe Wells’s testimony as to why he did not stop or provide his name or assistance to Crawford. I find that he has established on a balance of probabilities that he drove away because he was afraid.
[30] When one adds the punch to the riding alongside the car on the left, but not passing the car, hitting the side mirror, swearing and screaming, it supports Wells’s testimony that he drove away out of fear because there was an objective basis for his fear and his subjective fear is entirely reasonable.
[31] This is the excuse that must meet the test of reasonableness on a balance of probabilities. I find that in view of what had happened to him, his subjective fear was also objectively reasonable. So much so that it would be unreasonable to expect anyone to remain at the scene after being subject to the violence of the punch.
[32] Without detracting from the legitimacy of Mr. Crawford’s anger because he had been cut off and run over, he had no right to punch Mr. Wells and no reason apart from that anger; he was required to resort to the law. If he could land a punch of that force into what he says was a moving car, he could read a licence plate. His unreasonable response buttresses the reasonableness of Mr. Wells’s excuse. Although the defence of reasonable excuse is new in this section, under the predecessor section[1] that s.320.16 replaced, fear of personal harm has been accepted as negating the criminal intention of avoiding liability. R. v. Wood, [1999] O.J. No. 2278.
[33] Mr. Wells did not fail to stop his vehicle and provide his name and address without reasonable excuse. He had a reasonable excuse. This does not end the matter but leads directly to what I have referred to as the main issue.
Does s.320.16 Create Any Obligation After the Driver Has Already Failed to Stop?
[36] However, Crown counsel, relying on the decision of the Provincial Court of British Columbia, in R. v. Griffith (summarized in the Court of Appeal decision, 2019 BCCA 37), submits that even if Mr. Wells had a reasonable excuse for failing to stop, he still was required to go to a police station or call the police and report the accident.
[42] On appeal, Griffith conceded that the offence was a continuing one and that the trial judge was correct. In view of that, Justice Fitch stated at para. 61:
In light of the concession made by the appellant in oral argument, it is unnecessary to resolve whether the judge properly interpreted the scope of the provision. Indeed, it would be unwise to do so in circumstances where the section has been repealed and recast, the point was not fully argued, and addressing it may have implications for the current provision, the interpretation of which is best left for another day.
[43] In this case, the day for the interpretation of the new section has arrived.
[44] Having received argument on the proper interpretation of the new section, I conclude that the section as framed creates an offence of failing to stop, provide name and address, and render assistance when necessary without reasonable excuse. It creates an obligation to do all of those things, but the latter two are dependent on stopping. If there is a reasonable excuse for failing to stop and provide the information and assistance at the scene, then the charge has not been made out. I reach this conclusion on the basis of the principles of statutory construction.
[46] The reasonable excuse forms neither part of the actus reus nor the mens rea. I disagree with the authors of Impaired Driving and Other Driving Offences in Canada, A Practitioner’s Handbook, Toronto, Edmond 2019, where at page 152 they write that the requirement to show a reasonable excuse is part of the mens rea of the offence. It is not. It is as an excuse for his crime even though he committed the actus reus with the necessary mens rea, Stuart Criminal Law, 6 th Edition, Carswell p.485.:
The excuses reflect a policy consideration that someone who has committed a criminal act should nevertheless be absolved.
[47] A reasonable excuse provides a defence to a particular offence, which would not be available if the words “without reasonable excuse” were omitted, Stuart, supra at p. 544, writing of the reasonable excuse for failing to provide a breath sample and citing R. v. Brownridge, [1972] S.C.R. 926.
[49] Reading the section leads to the conclusion that once the defendant establishes his reasonable excuse, the inquiry has ended. The three requirements are conjunctive, a driver must (may not fail to) stop, provide his name and address and render assistance when necessary. Under the previous repealed section the requirements were conjunctive: R. v. Roche, [1983] 1 SCR 491. Thus an accused had to do all three and must do all three under the current section
[51] The one requirement imposed that might potentially be partially carried out is providing a name and address, for example by a phone call to the police, although even that interpretation requires one to stretch the meaning of the words of the statute. The section contemplates all three acts being done at the scene.
[58] In my opinion, reading in a continuous offence attempts to fulfill a perceived intention to criminalize failure to report an accident. Parliament has made no reference to criminalizing such conduct. Reading in such an intention introduces dissonance into the reading of the Act and not harmony as required by Rizzo & Rizzo Shoes Ltd.. It would require one to read some equivalent of the awkward addition that I have referred to above, that is, having failed to meet any of the requirements but with a reasonable excuse for having done so, that reasonable excuse would no longer excuse the driver for a failure to provide his name and address.
[59] With respect to authorities, the Griffith case does not assist in interpreting s.320.16 except to the extent that Justice Fitch pointed out the wisdom of waiting for the “timely opportunity to interpret the recast section”. The provincial court judge did not provide any reason for his conclusion that s.252 created a continuing offence, but rather stated it, the defendant Griffith did not argue the point in the Court of Appeal, and Justice Fitch declined to deal with the point other than to suggest the possibility that the provincial court judge was not necessarily correct.
[66] No authority under the previous section answers the question before me, not Griffith, not Maxie and not Wood citing Wintonyk.
[67] I do not find that Parliament’s intention was to allow for a reasonable excuse and then criminalize the failure to comply with the section if the accused cannot establish that the reasonable excuse that led to his failure was ongoing. But if it were, determining Parliament’s intention is one thing and determining if Parliament achieved that intention with the words it used is another. This section neither talks about nor penalizes the driver’s behaviour after a failure to stop, provide information or assistance but with a reasonable excuse for doing so.
[68] Having found that Mr. Wells had a reasonable excuse for failing to perform the three statutory requirements, I will not assess the reasonableness of his behaviour after he was punched and drove away. He spoke to Officer Ali within 90 minutes of the accident and confirmed his name and address that the police already had from a witness who obtained Wells’s plate number. He testified that he intended to go the police station nearest his house after his wife attended to his very real injuries. Whether he would or would not have, Officer Ali reached him first. There is no reason to disbelieve his intention that he testified to. If I disbelieved that, I would disbelieve his reason for driving away and there would be no reasonable excuse.
[69] But the offence was committed, and the reasonable excuse excused it at the time that he failed to stop and comply with the other two requirements. He is not guilty.
R v Robinson (BCPC)
[June 22, 2020] Offence Elements: Assaulting a Peace Officer and Obstruction - 2020 BCPC 122 [Judge R. Harris]
AUTHOR’S NOTE: Sometimes police act poorly. The job is difficult and police are often uneasy and frightened in their interactions with the public. However, the law still requires that they not deploy force against the public unreasonably and contrary to the law. They are not protect by the criminal code when they make an unlawful arrest. Indeed, citizens are entitled to resist an unlawful arrest with force. Moreover, the case shows that bystanders who questions the excessive conduct of the police or film it (without physically intervening) cannot be convicted of obstruction. Their conduct must be protected by the courts to hold police to account.
Pertinent Facts
[1] On October 9, 2018, Constable Malm and Constable Graham conducted a traffic stop. During the stop there was an altercation that resulted in Constable Graham suffering a fractured eye orbital, a nasal fracture, a concussion, bruises and scrapes.
[2] The accused are now charged with the following:
a) Count 1 – That Brendan Robinson and Troy Robinson assaulted Constable Graham, a police officer, thereby causing bodily harm.
b) Count 2 – That Brian Allen and Troy Robinson willfully obstructed a peace officer.
c) Count 3 – That Brian Allen possessed stolen property (no evidence motion was granted at the close of the Crown’s case and the charge was dismissed).
[6] On October 9, 2018, Constable Malm and Constable Graham were on duty when they saw an SUV drive contrary to a traffic control sign. The officers also noticed that an “N” was displayed on the rear of the SUV and that it contained three occupants. The significance of the “N” was it signified that the driver was permitted only one non-relative passenger. The officers decided to stop the SUV in order to investigate the driving infraction to determine if the driver was complying with the requirements of an “N” designation.
[As the event was filmed from numerous source and the evidence of the police officers was found to be inconsistent with the objective evidence, their testimony where unsupported by corroborating evidence was a deemed unreliable by the court. Paras 79-90] [93] I have carefully considered Troy Robinson’s evidence and although there are occasions where he leaned toward minimizing his conduct and that of his brother, I found his evidence to be logical and believable. Notably, he demonstrated a good recollection, and his evidence was largely consistent with the video evidence. He was also particularly believable when he explained that he did not come to the assistance of his brother because he felt that there was no winning against the police and that a person could get shot. Accordingly, and after considering all of the evidence, I find no basis to reject Troy Robinson’s testimony.
[75] The video shows that occupants of the SUV were hostile, rude, argumentative and difficult to the extreme. Some examples include, interrupting Constable Graham, telling him to “fuck-off”, calling him an “asshole”, laughing at him, blowing smoke at him and refusing to keep the window down.
[76] As for the window, on occasion Constable Graham told Brendan Robinson to stop putting the window up and Brendan Robinson would momentarily comply and then re-commence closing the window. At one stage, Constable Graham put his arm across the window and he said to Brendan Robinson, “If you roll it up you are going to come out of that window.” During the events, Constable Graham made it clear that he wanted the window down because he wanted to see what Brandan Robinson was doing.
[77] Immediately before the altercation and despite Constable Graham’s direction, the window begins to close and Constable Graham responds by opening the passenger door, prompting a response from the occupants. Thereafter, Mr. Allen exits the SUV and walks around the front toward Constable Graham and as this occurs, Brendan Robinson gestures out of the SUV and toward the open door. When he does this, he is holding a cigarette and he states, “He smashed the fucking sign.” Standing within the area of the open door is Constable Graham who states, “Don’t reach.” Constable Graham then grabs Brendan Robinson’s wrist and with his left hand he grabs the upper portion of Brendan Robinson’s arm. Constable Graham’s upper body then enters the front passenger compartment and he pushes against Brandan Robinson. At one point, Constable Graham uses his left arm and he pushes up against Brendan Robinson’s right arm. At 02:50 of the video, Constable Graham pulls back from the interior of the SUV and then moves forward into the interior while forcefully delivering a punch with his left hand.
[78] Significantly, the video does not show Constable Graham being pulled into the SUV, nor, does it show that he was in a position that prevented him from using his left hand or that he was lower than Brenden Robinson.
Was Cst. Graham in the Lawful Execution of His Duty When Brendan Struck Him?
[94] A person cannot be convicted of assaulting a police officer unless the Crown proves beyond a reasonable doubt that the officer was in the lawful execution of their duty when they were assaulted. A police officer is in the lawful execution of their duty if their conduct falls within the scope of any duty that imposed by statute or the common law: Fleming v. Ontario, [2019] S.C.R. No. 45.
[95] The police have a common law duty to protect life and safety: Deedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2; R. v. Mann, 2004 SCC 52; R. v. Clayton, 2007 SCC 32.
[96] An officer’s power to perform their duty is not unlimited; rather, their actions of are limited in that their conduct must be justified and necessary to the performance of their duty: Fleming at para. 75.
[97] Constable Graham testified that he was attempting to remove Brendan Robinson from the SUV so he could arrest him. If Constable Graham’s attempt to arrest Brendan Robinson was unjustified then he was not in the execution of his duty when the altercation occurred. As such, it is necessary to examine a police officer’s authority to arrest without a warrant.
[99] In R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 and R. v. Glendinning, 2019 BCCA 365, the courts considered the power to arrest without a warrant and concluded that an arresting officer must have subjective grounds on which to base an arrest and that the subjective grounds must be justifiable from an objective perspective. This objective consideration is from the perspective of what would a reasonable person with the same training and experience and in the position of the police officer conclude. The standard is lower than the civil standard of proof, and a prima facie case is not necessary before an arrest is justified.Analysis
[103] The authorities are clear that the police have a common law duty to protect the public including their personal safety and the safety of fellow officers. I accept Constable Graham’s testimony that he opened the door to the SUV because he was fearful that Brendan Robinson was reaching for something under the seat and that he needed to have a fulsome view in case Brendan Robinson was reaching for a weapon. Further, I note, the Troy Video confirms that Constable Graham was concerned and that he tried to look down toward the floor area of Brendan Robinson’s seat. I also accept that environment was hostile and that Brendan Robinson was refusing to keep the window down. For these reasons, I am satisfied that the opening of the door was for a purpose of protecting himself and Constable Malm and this falls within the scope of his duty.
[104] As for whether the opening of the door was reasonable and necessary, Constable Graham testified that the occupants of the SUV were hostile, that Brendan Robinson was reaching under his seat, and that Brendan Robinson was not following instructions regarding the window. Further, I note that the physical positioning combined with the window being up made it difficult for Constable Graham achieve an angle where he could see under Brendan Robinson’s seat. Therefore, and given that Brendan Robinson would not keep the window down, I find that the opening of the door was necessary and reasonable in the circumstances.
[105] As for entering the SUV and attempting to arrest Brendan Robinson, I find that Constable Graham was not in the lawful execution of his duty when he performed these activities. In this regard, Brendan Robinson had committed no criminal offence. Specifically, he did not grab or pull Constable Graham and therefore there was no basis to arrest him for assault.
[106] As for the submission that Constable Graham subjectively but mistakenly believed that he was assaulted. I do not accept that such a mistaken belief was objectively reasonable. A reasonable person in Constable Graham’s position would have noted that Brandan Robinson was gesturing and not grabbing, that he was holding a cigarette, that he was making comments related to the door and that he was focussed on the door. Moreover, a reasonable person in the shoes of Constable Graham, who was looking down at Brendan Robinson’s hand, would have distinguished between gesturing and grabbing. Further, they would have also distinguished between being pulled into the SUV versus purposely moving forward and into the SUV.
[107] After considering all of the evidence, I find that Constable Graham was in the lawful execution of his duty when he opened the door to the SUV. I also find that Constable Graham assaulted and pulled and that his belief in this regard was objectively unreasonable, accordingly, he was not justified in trying to arrest Brendan Robinson, nor was he justified in using force for this purpose. I, therefore, conclude that Constable Graham was not in the lawful execution of his duty when he entered the SUV and physically contacted Brendan Robinson.
Was Brendan Robinson acting in Self-Defence?
[108] An accused who is charged with assaulting a police officer is vulnerable to being convicted of the lesser offence of assault in circumstances where the officer was not in the execution of his duty at the relevant time: R. v. Plamondon, [1997] BCAC, at paras. 36-38; R. v. Plummer, 2006 CanLII 38165 (ON CA), [2006] 217 O.A.C. 201, at para. 48. Accordingly, and given my conclusion that Constable Graham was not in the execution of his duty, Brendan Robinson and Troy Robinson remain subject to the lesser offence of assault causing bodily harm.
[118] After considering the relevant factors, I am satisfied that Brendan Robinson’s response was reasonable. I acknowledge he responded by striking Constable Graham an unknown amount of times and that the officer was unfortunately injured, however, I am satisfied that the response was proportional and that it occurred while Constable Graham was violently engaging him. This violent engagement included grabbing, pushing, one forceful left handed punch and shortly thereafter 5 to 10 upper cut punches. I also note these events occurred when Brendan Robinson was at a positional disadvantage in that he was seated in a confined space with his seatbelt on and Constable Graham was on top of him.
Were Troy Robinson and Mr. Allen Obstructing the Officers?
[129] It is alleged that Mr. Allen obstructed Constable Malm from assisting Constable Graham by not getting back into the SUV and by not staying back when directed to do so. As for Troy Robinson, it is alleged that he obstructed Constable Malm by moving toward him and not getting back when instructed to do so, thus, interfering with his duty to assist Constable Graham.
[130] The offence of obstructing a police officer is found in s. 129 (a) of the Criminal Code which reads:
129 Every one who (a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,
The primary elements of the offence of obstructing a police officer include:
1. the identity of the accused as the person involved;
2. the jurisdiction of the allegation;
3. hat the person obstructed was a police officer;
4. that the police officer was in the execution of their duty;
5. that the accused knew that the person was a police officer in the execution of their duties as a police officer at the relevant time; and
6. that the accused wilfully obstructed the police officer in the execution of their duties: R. v. Quinones, [2012] B.C.J. 383.
[133] ... In support, the Crown relies on R. v. Kozuchar, 2016 BCPC 3030, for the proposition that interfering with an assisting officer can result in a conviction for obstructing a police officer.
[138] As mentioned, the police have a common law duty to protect life and safety. As such, I accept the perspective found in Kozuchar, specifically, that an officer is in the execution of their duty when they are assisting a fellow officer and that any person who interferes with the assisting officer commits the offence of obstructing a police officer. Nevertheless, Kozuchar is distinguishable because the officer needing assistance in the case was in the execution of his duty, whereas Constable Graham was not in the execution of his duty. In my view, this distinction undermines the applicability of Kozuchar.
[139] The cases of Johnsagaard, and T. (D.), are more analogous in that the primary officer was not in the execution of their duty when the assisting officer was interfered with. In Johnsgaard, the accused saw the primary officer strike a person, knock the person to the ground and then drag the person to a police vehicle. The accused, who wanted to tender his name as a witness for what he perceived to be police brutality, went to Constable Kraushaar (the assisting officer) and asked to get a parties’ name. At one stage, the accused came within a few feet to the assisting officer and who told him to move along. The accused did not comply and he was arrested and charged with obstructing a police officer. The Crown’s theory was that the accused interfered with the assisting officer’s ability to provide backup or cover for the primary officer. At para. 25, Judge Fraser framed the issue as:
Is she (Constable Kraushaar) in the lawful execution of her duty when she is acting as cover for another officer who is affecting an illegal arrest or an arrest without reasonable grounds or who is using excessive force to affect the arrest?”
[140] Judge Fraser acquitted the accused on the basis that Constable Kraushaar was not in the lawful execution of her duty. At para. 25, Judge Fraser commented:
It seems to me if an officer is assisting another officer to affect an arrest by providing cover for him to act illegally or without reasonable grounds to use excessive force, that officer cannot be in the lawful exercise of her duty. Once a police officer acts illegally, the protection to police officers under the Criminal Code is removed.
[141] Similarly, in T. (D.), the accused were acquitted of obstructing a police officer when they interfered with an officer who was helping a fellow officer who was in the process of conducting an arrest that was subsequently determined to be without reasonable grounds. In his reasoning, Judge Gabriel concluded if the arresting officer was not in the execution of their duty, then the officer providing assistance could not be in the execution of their duty.
[142] Based on the above, I am not satisfied that Constable Malm was in the execution of his duty at the relevant time. Constable Malm’s duty is the protection and safety of others, it is not to assist a fellow officer who is improperly applying force and wrongfully arresting an individual. To hold otherwise would ignore the importance of officers interfering and stopping fellow officers who are improperly using force.
[143] In considering the matter, I recognize the Crown’s argument that a person’s right to resist their wrongful arrest does not make it permissible for third persons to then intervene and obstruct the arresting offices: Saunders and Williams. Nevertheless, I do not see the authorities as going so far as to prevent individuals from inquiring about the arrest of another, or arguing about the physical handling or the circumstances they witness: R. v. Long (1970) 1969 CanLII 989 (BC CA), 1 C.C.C. 313 (BCCA) at page 317 and Williams, at para. 15. In fact, I observe that reasonable enquires in the appropriate context are appropriate and a means whereby the public can hold the police accountable.
[144] Finally, if I am incorrect and Constable Malm was in the execution of his duty, I conclude that Troy Robinson and Mr. Allen did not obstruct Constable Malm, rather, their conduct was reasonable and commensurate with the circumstances. In this regard, they did not physically intervene, rather, they were filming and shouting in the context of them witnessing an officer improperly applying force. Given the circumstances I find their conduct was entirely reasonable. In fact, to hold otherwise would criminalize their reasonable and appropriate attempts to stop improper conduct. Finally, had Constable Malm listened to the loud and repeated shouts of Troy Robinson and Mr. Allen, he would have appreciated that they wanted the officer to intervene and stop Constable Graham.
[145] For the reasons stated, I find Troy Robinson and Mr. Allen not guilty of obstructing Constable Malm.
R v TSH (SKPC)
[June 11, 2020] – Charter s.11(b) - Impact of Pre-Charge Delay on Jordan Analysis, Defence Does not Have to Hold Self In Perpetual Readiness, Crown Must Indicate Readiness Clearly, Unavailability of Institutional Resources can Limit Subtraction for Discrete Events – 2020 SKPC 25 [M. McAuley, JJ.]
AUTHOR’S NOTE: Herein the court stayed serious sexual offences against a young person for a 19-month delay. The primary takeaways from this case are that lengthy pre-charge delay can increase the likelihood of a stay (both over and under the Jordan limit). Also, discrete events that lead to delay will not necessarily excuse all the delay where trial dates are unavailable do to a lack of institutional resources. Also, Crown must clearly state on the record when they are prepared to have a trial. Failure to do so means they cannot be subsequently found to have been ready in the absence of clear evidence.
The Jordan Analysis
[18] In R v Coulter, 2016 ONCA 704, 340 CCC (3d) 429 the Ontario Court of Appeal provided a summary of the Jordan framework for analysis of delay as follows: (at para.’s 34-40)
(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
(2) Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
(3) Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, at para. 47). If it cannot rebut the assumption, a stay will follow (Jordan, at para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
(5) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
(6) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
(8) The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96)
[19] As T.S.H. is a young offender with his matter being tried in the Provincial Court, the presumptive ceiling is 18 months (Jordan, at para. 46).
[20] The criminal charges are alleged to have occurred between March 1 and April 30, 2017, with the Information sworn on August 13, 2018, 15 months and 15 days later from the latest incident. The Court is required to examine the period from the charge to the end of the trial, charge means the date on which the Information is sworn or an indictment is preferred (see R v Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594 at p 1607).
[26] In any event, I find that March 20, 2019 would not have been available for the Crown either due to the nature of the charges and the length of time required to go over the DVD videos. The Crown did not indicate on the record either whether they were available but rather mentioned the complexity of the trial. The next available trial date was September 4, 2019 as noted in the audio of the court proceedings. There were no earlier trial dates available prior to September 2019.
[27] R v Godin, 2009 SCC 26 at para 23, [2009] 2 SCR 3, provides insight into defence counsel unavailability. In Godin, the Court held that it was an error to attribute delay to the defence as soon as a single available date is offered to defence counsel and not accepted. The court noted that s. 11(b) requires reasonable availability and cooperation but does not require defence counsel to “hold themselves in a state of perpetual availability.”
[28] I cannot find defence responsible for a six-month delay where there is no suggestion he was being unreasonable in rejecting an earlier date such as in this situation. Not being available for a trial one month and 14 days after pleas were just entered regarding serious charges is not unreasonable. There were also no other available trial dates prior to September 4, 2019.
Exceptional Circumstances
[39] In conclusion, I find that the trial should not have proceeded as a result of the untimely death of the mother of one of the witnesses and an aunt to the others. What I do not agree on is the six months the Crown is requesting be deducted from the net delay of 22 months. To the best of my knowledge, there were no earlier dates available to reschedule this trial due to the length of time required for the young witnesses and the DVD evidence. Therefore, court availability was also a factor. I believe the correct deduction for the exceptional circumstances is three months which leaves the remaining delay of 19 months which falls above the presumptive ceiling. If I am wrong on that point, I will continue my analysis with respect to pre-charge delay, age and unique circumstances of the young accused.
[40] In addition, the accused’s trial will not be proceeding on June 16, 2020 as a result of COVID-19, the resulting backlog of all trials and the unavailability of an adequate court room facility. This trial was in the course of being brought forward to reschedule to a later trial date. In custody accused persons will be given priority when rescheduling trial matters for reasons of safety and liberty and T.S.H. is out of custody.
Youth Status Effect
[42] When the Court is assessing delay, T.S.H.’s status as a youth is a significant factor that must be considered within the overall analysis. R v KJM, 2019 SCC 55, 381 CCC (3d) 293 [KJM] addressed how the presumptive ceilings set out in Jordan apply to the Youth Criminal Justice Act (YCJA). The majority confirmed that the presumptive ceilings do in fact apply to youth matters and that there is arguably a greater need for swift justice when the accused is a youth. Moldaver J. promoted a flexible approach, which factors in not only the applicable ceiling, but also the relevant surrounding circumstances (at para. 69):
[69] While the presumptive ceilings are a significant chapter in Jordan, they are not the full story. Jordan established ceilings, not floors. While the ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan marries uniformity with flexibility.
Pre-Charge Delay Effect
[45] While there exists potential prejudice to the accused when dealing with lengthy delays, what effect does pre-charge delay have on the Jordan analysis? It is only in exceptional cases that pre-charge delay can be considered in the context of a s. 11(b) application, but it is submitted that such delay certainly may be considered where the circumstances warrant it. For example, in R v Piche, 2012 SKQB 471, 408 Sask R 125 Justice Danyliuk of the Saskatchewan Court of Queen’s Bench commented at para. 17 that:
It has been held that when considering post-charge delay, any pre-charge delay may be factored in so as to establish the overall setting in which the post-charge delay occurs. In other words, pre-charge delay may exacerbate the post-charge delay being relied upon by the defence.
[46] Likewise, in R v M.S., 2017 MBQB 12, Justice Dewar of the Manitoba Court of Queen’s Bench noted that it is impossible to assess the reasonableness of post-charge delay without considering the context in which that delay occurred, including the existence of any pre-charge delay. At pp. 28-29, the Court there stated as follows: ...
[66] It is impossible to decide this case without acknowledging the existence of the pre-charge delay. It prompts me to resolve all doubt about the length of the post-charge delay in favour of the accused. The impact of the post-charge delay on the quality of the evidence to be laid before the court has further exacerbated the deterioration of the evidence which must have occurred during the seven year period between 2006 and August 1, 2013. Viewed in that context, a delay of 44.4 months, or even 38.4 months between charge and the end of the trial for a case of this nature, is simply too long and outweighs society’s interest in having the case decided on its merits.
[47] In T.S.H.’s case, the pre-charge delay is 15 months and 15 days from the latest incident. Mr. Piche advises that T.S.H.’s mother had become aware of these potential charges through her workplace from around the time the investigation commenced. T.S.H. was then informed of these upcoming charges by his mother. As a result, T.S.H. was in a perpetual state of anxiety waiting to be formally charged. Mr. Piche submits that T.S.H. has been identified as having a significantly delayed cognitive development and coupled with the stress of anticipating serious charges, has put him in a stressful state of mind.
[48] With respect to the cognitive development of T.S.H., the Crown is of the view that this is an issue only relevant to potential fitness for trial or sentencing and not to the issue of trial delay. I disagree as the courts have been instructed to conduct an overall assessment when dealing with delay issues involving an accused young person. “While ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan marries uniformity with flexibility” (KJM, at para. 69).
[50] Since R v Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771 at para 75 [Morin], the Supreme Court has left open the door for pre-charge delay to be addressed on a case by case basis. Justice Sopinka stated that: “Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself is not counted in determining the length of the delay.”
[51] In R v Moosomin, 2017 SKQB 182 at para. 26, Justice Smith went on to conclude the following: “In short, there may be some instances where a pre-charge delay can impact the analysis on a post-charge delay, as mandated by Jordan.
[53] Defence submits that the case was not particularly complex for delaying the laying of the charges by 15 months and 15 days. Crown submits that the case was complex as it was difficult attempting to obtain statements from four to five young witnesses.
[54] In conclusion, I do find the pre-charge delay significant enough in these circumstances in addition to the net delay of 19 months. We have a young offender with a significantly delayed cognitive development dealing with lengthy delays on serious charges. I conclude that the pre-charge delay in T.S.H.’s situation, in addition to his young age and a significantly delayed cognitive development, does have an influence on the overall determination as to whether post-charge delay is unreasonable. Although pre-charge delay in and of itself is not counted in determining the length of the delay, I conclude that it is significant enough to render the overall delay unreasonable.
