COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. S.C.W., |
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2018 BCCA 346 |
Date: 20180919
Docket: CA44184
Between:
Regina
Respondent
And
S.C.W.
Appellant
Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered.
Section 16(4) of the Sex Offender Information and Registration Act: This section provides that no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA.
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Before: |
The Honourable Mr. Justice Harris The Honourable Madam Justice Fenlon The Honourable Madam Justice Fisher |
On appeal from: An order of the Provincial Court of British Columbia, dated December 30, 2016 (R. v. S.C.W., Kelowna Docket 77979).
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Counsel for the Appellant: |
E. Purtzki |
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Counsel for the Respondent: |
S. Elliott |
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Place and Date of Hearing: |
Vancouver, British Columbia June 15, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia September 19, 2018 |
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Written Reasons by: |
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The Honourable Madam Justice Fenlon |
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Concurred in by: |
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The Honourable Mr. Justice Harris The Honourable Madam Justice Fisher |
Summary:
The appellant pleaded guilty to sexual interference and child pornography charges. When about four years had passed between charge and sentencing, the appellant sought a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. The sentencing judge dismissed that application, holding that the delay from charge to sentencing was not unreasonable under the transitional framework set out in R. v. Jordan, 2016 SCC 27. The appellant says the judge erred by (1) failing to adequately assess the Crown’s contribution to delay; and (2) misapplying the Jordan transitional framework. Held: Appeal dismissed. Although the sentencing judge erred in assessing delay prior to the guilty pleas and in applying the Jordan framework to post-verdict delay, his conclusion that the delay was not unreasonable is sound.
Reasons for Judgment of the Honourable Madam Justice Fenlon:
[1] The appellant was sentenced to seven years in custody after pleading guilty in Provincial Court to sexual interference, making child pornography, and possessing child pornography. The victim was his stepdaughter, who was between 11 and 12 years old at the time of the offences. He appeals on the basis that the judge erred in dismissing his application for a stay of proceedings, contending that four years from charge to completion of sentencing constitutes an unreasonable delay in breach of s. 11(b) of the Charter of Rights and Freedoms.
[2] For the reasons that follow, I would dismiss the appeal. In my view, although the judge erred in the approach he took to assessing delay, he reached the correct conclusion in dismissing the application.
[3] The appellant was in a romantic relationship with the victim’s mother for five years. After the relationship ended, the appellant continued to see the victim in his role as her step-parent. In November 2012 the appellant took the victim, who was then 12 years old, for an overnight stay at a hotel. A fellow guest reported to hotel staff that the appellant was inappropriately touching the victim in the pool area of the hotel. Police were contacted and entered the appellant’s hotel room, where he was found to be in the course of sexually abusing the victim.
[4] Police seized a camera and computer from the hotel room under a search warrant. The computer contained 129 images and eight videos taken of the victim with the camera, as well as three stories detailing sexual activity between adults and children. The judge in his reasons for sentence described the videos in this way:
[13] … The videos must be experienced to fully understand the full measure of the crushing depravity of the acts. They were witness to the psychological dismemberment and decapitation of the sexual being of a pre-adolescent child.
[14] Breathless in their brutality, there are no words to describe the despair one felt for the child or the loathing for [the appellant], except a deep and abiding sadness.
[5] The appellant was arrested at the hotel without a warrant on November 24, 2012. Charges were laid the next day.
[6] The Crown proceeded by indictment. The charges were expanded and amended a number of times. The fourth and final information, sworn on June 19, 2013, charged the appellant with:
· Sexual assault (s. 271);
· Sexual interference (s. 151);
· Making child pornography (s. 161.1(2));
· Possessing child pornography (s. 163.1(4)); and
· Administering a noxious substance (s. 245(a)).
[7] The appellant had difficulty securing counsel to defend him, and changed counsel multiple times. A number of adjournments occurred relating to disclosure issues and resolution discussions. The Crown sought expert evidence to prove the noxious substance count, but by January 14, 2015 had determined not to proceed with that charge. On January 15, 2015, the appellant agreed to plead guilty to sexual interference, making child pornography, and possessing child pornography. A guilty plea was entered to the sexual interference count on February 16, 2015 and to the child pornography-related counts on May 22, 2015. The Crown released the witnesses who had been scheduled to appear at the trial set for February 16, 2015, and undertook to propose an agreed statement of facts (“ASF”).
[8] It was not until May 14, 2015, three months after the initial guilty plea, that the Crown provided the appellant with a draft ASF. When he pleaded guilty to the child pornography-related offences on May 22, 2015, the appellant consented to a further adjournment to allow time to obtain a pre-sentence report with a psychological assessment. The appellant failed to attend two appointments for psychological testing, the first in July 2015 and the rescheduled appointment in December 2015. Nor did he respond to the draft ASF until mid-January 2016. A few weeks after doing so, he dismissed his counsel.
[9] The appellant retained new counsel on February 22, 2016, a full year after he had entered a guilty plea to sexual interference. Counsel then requested a number of adjournments to review disclosure and negotiate admissions; she did not respond to the proposed ASF until October 14, 2016, despite repeated requests and reminders from the Crown. Delays also occurred because the appellant sought to obtain his own psychological assessment.
[10] On November 2, 2016, the appellant raised for the first time his intention to make an unreasonable delay application, and to do so during the five days scheduled for sentencing commencing December 9, 2016. At the hearing, the Crown called evidence and made submissions on sentence which were interspersed with the evidence and submissions on the delay application. On December 30, 2016, the judge delivered reasons dismissing the delay application and imposing sentence — some 49 months after the charges were laid.
[11] In addressing the delay application, the judge considered the entire 49-month period from charge to sentencing. He applied the transitional provisions in R. v. Jordan, 2016 SCC 27, which had been released five and one-half months earlier. He did not expressly deduct defence delay to determine net delay, but proceeded on the basis that net delay exceeded the 18-month ceiling for Provincial Court cases. The judge therefore placed the burden on the Crown to rebut the presumption that the delay was unreasonable.
[12] In assessing whether the Crown had established the exceptional circumstances of discrete exceptional events or a particularly complex case to justify the delay, the judge found the case to be only moderately complex (at para. 11). The Crown did not rely on any discrete exceptional events.
[13] The judge then considered the transitional exceptional circumstance of whether the parties reasonably relied on the previous state of the law. He began his assessment by determining how much of the delay had occurred before Jordan was released. He calculated pre-Jordan delay at 43 months and 13 days (at para. 4) and post-Jordan delay at five months and 22 days (at para. 66). With respect to pre-Jordan delay, the judge analysed the parties’ reasonable reliance on the previous state of the law by engaging in a detailed review of the record to attribute delay in accordance with the framework set out in R. v. Morin, [1992] 1 S.C.R. 771 (at paras. 15–34). He allocated 11 months and 28 days of delay to the defence, found inherent delay of 13 months, 14 days; and neutral delay of ten months, 12 days (at para. 39).
[14] The Crown concedes the judge made an arithmetical error in calculating institutional and Crown delay at three and one-half months, as it came to seven and one-half months based on his findings. However, that miscalculation did not affect his conclusion that the net pre-Jordan delay was well within the Morin guideline of eight to ten months.
[15] The judge also considered, in the event that he was wrong in his attribution of delay, the factors of prejudice and seriousness of the offence, which were significant factors under the Morin framework. The judge disbelieved the appellant’s claims of distress during the proceedings, finding he had contributed to the delay and favoured avoiding immediate imprisonment. The judge noted the bail conditions were not restrictive and overlapped with conditions that would likely be ordered ancillary to sentence in any event. He found the restrictions did not have a substantial impact on the appellant’s liberty, noting that he had entered into a new relationship and fathered a child while on bail. Ultimately, the judge characterized the prejudice suffered by the appellant due to delay as “slight to non-existent” (at para. 56). On the other hand, he noted the high public interest in prosecuting sexual offences against children, particularly where the offender is in a position of trust.
[16] Ultimately, he concluded the Crown had reasonably relied on the previous state of the law.
[17] Turning to post-Jordan delay, the judge found the entirety of that delay to be attributable to the appellant:
[66] Post-Jordan delay began July 8, 2016, and ended on December 30, 2016. The delayed initiation of this Charter application and the failure of defence to set aside time to hear the application caused the proceeding to be adjourned from December 9 to December 30, 2016. The delay of 21 days is defence delay deductible from total delay.
[67] Had the defence engaged with Crown in a timely manner to settle the agreed statement of acts and had [the appellant] gone to a psychological assessment in July of 2015 as arranged, then the sentencing would have been completed on November 5, 2015. Accordingly, the delay from July 8, 2016, to December 9, 2016, was defence delay deductible from the total delay.
[18] Taking the two periods together, the judge found the net delay fell well below the 18-month ceiling prescribed by Jordan and was not unreasonable (at para. 69).
[19] The judge also addressed the requirement in Jordan to assess whether the Crown could have prevented or remedied the delay, even where exceptional circumstances have been demonstrated: Jordan at para. 70. The judge found that the Crown could have reduced the 43 and one-half months of pre-Jordan delay by six and one-half months (at para. 65) by disclosing particulars more diligently (at para. 60); by holding onto its trial witnesses until an ASF had been settled (at para. 41); and by producing a proposed ASF more promptly (at para. 63).
[20] The judge found that after Jordan was released, the Crown could have theoretically made efforts to advance the sentencing hearing, but found there was no evidence the parties or the court were available for an earlier hearing. He concluded, in any event, that the appellant was responsible for all of the post-Jordan delay. Ultimately, in dismissing the application, the judge found “the case took markedly longer than it reasonably should have due to the lack of cooperation by [the appellant], not in spite of his efforts” (at paras. 69–71).
[21] The appellant contends the judge made two errors in dismissing the s. 11(b) application: first, by failing to attribute sufficient delay to the Crown; and second, by applying the Morin analysis to the pre-Jordan delay, rather than the transitional regime mandated by Jordan.
[22] In my view the judge did not make these errors. He carefully and thoroughly attributed delay, and applied the Morin analysis to delay prior to the release of Jordan in the context of the transitional exceptional circumstance of reliance on the former regime. However, as I have noted above, in my view the judge erred in his approach generally. The real issue on appeal is whether the Jordan analytical framework should have been used at all in the circumstances of this case.
[23] With great respect, I am of the view the judge erred in the appellant’s favour by considering delay from charge to sentencing and assessing that entire period against the 18-month ceiling set out in Jordan. In my opinion, the Jordan analytical framework does not apply to s. 11(b) delay applications made after conviction. Further, the entire period before the appellant’s plea should not have been considered on the s. 11(b) application. By pleading guilty, the appellant waived his right to challenge that period of delay for unreasonableness. I will consider each of these errors in turn.
[24] The appellant submits the judge was correct to assess delay based on the period from charge to the anticipated end of sentencing. He acknowledges the ceilings of 18 months for Provincial Court and 30 months for Superior Court cannot be automatically applied in all sentencing contexts — noting for example that dangerous offender proceedings can in themselves take 12 months — but says that in a sentencing context, the relevant “ceiling” or benchmark ought to be arrived at on a case-by-case basis, using a standard of whether the matter markedly exceeded the time reasonably required to complete it. In arriving at that benchmark, he submits the 18- and 30-month ceilings, although not determinative, should be an important factor.
[25] There is some merit to the submission that post-verdict delay should be assessed by asking whether sentencing markedly exceeded the time reasonably required to complete the particular type of sentencing proceeding. However, in my view, assessing the period from charge to sentencing against the presumptive ceilings in Jordan does not accord with the law as it stands. Although the right to be tried within a reasonable time under s. 11(b) of the Charter includes the right to be sentenced within a reasonable time (R. v. MacDougall, [1998] 3 S.C.R. 45 at para. 10), there are a number of reasons why the Jordan framework and presumptive ceilings should not govern an application for delay made after conviction is entered, and why pre- and post-conviction delay should be considered discretely.
[26] First, in Jordan the majority limited its analysis to the period between charge and end of trial and explicitly declined to consider how the ceiling should apply to s. 11(b) applications brought after trial in relation to sentencing, saying at footnote 2:
This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.
The majority assessed total delay of 49.5 months between charge and conviction — not the time between the charge and sentence which was approximately 53.5 months. Thus, the “end of trial” benchmark used in Jordan was the pronouncement of the verdict and not the pronouncement of sentence (Jordan at para. 49).
[27] Second, applying the presumptive ceilings from charge to the actual or anticipated end of trial is consistent with long-standing jurisprudence to the effect that, in most cases, the failure to move for a stay of proceedings for unreasonable delay either before or at trial would be fatal, as it would constitute waiver of any claim under s. 11(b): R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. C.A.) at 447 (per Arbour J.A., for the majority); R. v. Warring, 2017 ABCA 128 at para. 11.
[28] Third, requiring a judge who presides over a pre-trial s. 11(b) application to presume a finding of guilt and then estimate the anticipated sentencing date is not only contrary to a plain reading of Jordan, but practically unworkable. There are any number of scenarios (such as dangerous offender proceedings) which could affect a reasonable date for sentencing and which would not be known before the verdict.
[29] The appellant submits treating pre- and post-verdict delay discretely when a delay application is made after conviction is contrary to MacDougall. In that case the accused was charged in December 1994 with indecent assault. In April 1995, he pleaded guilty. The matter was then adjourned for the preparation of a pre-sentence report. In July 1995 the case was suspended indefinitely because of the trial judge’s illness. The judge eventually resigned in April 1996, and a month later the Crown requested the assignment of a new judge. The accused did not appear for sentencing initially but was later arrested, and the matter adjourned until September 24, 1996 for hearing of a defence motion to have the charges stayed. On that date the new judge granted the motion, holding that the approximately 22-month delay between the laying of the charge and the application for a stay violated s. 11(b) of the Charter. Ultimately, the Supreme Court of Canada determined that the stay should be set aside and the matter remitted for sentencing.
[30] In coming to that conclusion, the Supreme Court described the entirety of the delay from the laying of the Information to sentencing proceedings, saying:
[64] There is little dispute about the characterization of the delays other than those related to Judge Plamondon’s illness. For the record, I will briefly review them. MacDougall was charged in December, and first appeared a month and a half later. This initial delay is attributable to the inherent time requirements of the case. At his first appearance, MacDougall requested an adjournment for election and plea. The consequent delay of one month must be attributed to MacDougall. When MacDougall next appeared on February 13, 1995, he pleaded not guilty, and the case was adjourned for trial. However, when he appeared on April 5, 1995, he changed his plea to guilty, and the case was adjourned for sentencing, with a pre-sentence report to be prepared by May 12, 1995. The three-month delay between February 13, 1995, and May 12, 1995, is attributable to the inherent time requirements of the case. However, the two-month delay between May 12, 1995, and the indefinite adjournment on July 14, 1995, is attributable to the Crown, which requested two extensions in order to prepare the pre-sentence report. The period between the trial judge’s resignation on April 15, 1996, and the Crown’s request for the assignment of a new judge on May 21, 1996, is also delay attributable to the Crown. The period between the assignment of a new judge on May 22, 1996, and MacDougall’s scheduled next appearance on June 13, 1996, is attributable to the inherent time requirements of the case. However, as MacDougall failed to appear on June 13, 1996, the subsequent delay between that date and his eventual appearance on July 11, 1996, is attributable to him. Finally, the two and one-half month period between July 11, 1996, and the hearing of MacDougall’s motion for a stay based on undue delay on September 24, 1996, is attributable to the inherent time requirements of the case.
[31] In my view, MacDougall did not determine that delay prior to verdict must be taken into account when assessing a s. 11(b) application regarding delay in sentencing. That issue was neither raised nor addressed in that case. Rather, as Justice McLachlin (as she then was) stated in the opening paragraph, the appeal concerned two legal issues:
[1] … whether the right to be tried within a reasonable time under s. 11 (b) of the Canadian Charter of Rights and Freedoms includes the right to be sentenced within a reasonable time, and (2) the proper characterization of delay related to judicial illness under s. 11 (b).
Thus, the description of delay at para. 64 of MacDougall occurred in the context of determining whether delay due to the judge’s illness — which occurred after the guilty plea was entered — constituted inherent delay or Crown delay. The delay between the charge and the guilty plea in that case had no bearing on the analysis.
[32] In MacDougall the Court emphasized that, while the protections afforded by ss. 7–14 of the Charter remain important, post-conviction delay involves more attenuated s. 11(b) rights because the offender is no longer presumed to be innocent. That distinction also supports a different approach to delay occurring after a guilty plea.
[33] In R. v. Dadmand, 2017 BCSC 1644, Justice Pearlman addressed delay between verdict and sentencing in the context of a dangerous offender proceeding. He concluded that the presumptive ceilings set by Jordan apply only from charge to verdict. That was also the view earlier taken by Kelleher J. in R v. Pelletier, 2016 BCSC 2496, by Fisher J. (now J.A.) in R. v. Akumu, 2017 BCSC 896 and by Gray J. in R. v. Millar, 2016 BCSC 1887.
[34] Justice Pearlman observed at para. 56 that, due to the highly individualized process of sentencing, “[p]reparation and hearing time will vary with the nature of the sentencing proceedings and their complexity”. Accordingly, he applied the Morin framework, as tailored to sentencing proceedings in MacDougall, as the proper approach to determine the reasonableness of post-verdict delay under s. 11(b). In my view, his conclusion (in line with the other decisions just noted) that the presumptive ceilings in Jordan do not encompass the time between conviction and sentencing is correct. Sentencing hearings vary greatly, ranging from straightforward matters that can be dealt with the same day the verdict is entered, to complex dangerous offender hearings that can take months to prepare for and months to complete.
[35] I also agree with Pearlman J. that in assessing unreasonable delay in the period between verdict and sentencing, the Morin framework applied in MacDougall continues to govern, “tempered by Jordan’s emphasis on the importance of facilitating a more efficient justice system”: Dadmand at para. 55.
[36] In the present case, the total delay between the guilty plea and sentencing amounted to 22 months. Thirteen months and three weeks of delay were due to defence conduct (at paras. 38(q), 66-67), leaving a delay of eight and one-half months. The judge found six months and six days of that remaining period to be attributable to Crown and institutional delay (at paras. 38(m)-(o)).
[37] The appellant contends the Crown should have done more to minimize post-conviction delay, especially given the repeated admonishments from the court about how long the sentencing was taking and the need to finalize the ASF or get on with proving the facts needed to impose sentence.
[38] I begin by noting that a judge’s attribution of periods of delay is highly discretionary, and is to be afforded deference: R. v. Cody, 2017 SCC 31 at para. 31; see also R. v. Brown, 2018 NSCA 62 at paras. 45–46. Those findings will not be interfered with on appeal unless a palpable and overriding error is identified. In my view the judge considered all of the Crown’s actions and inaction in detail, and appropriately attributed delay to the Crown.
[39] There is no doubt that this case took a long time to get to sentence. The Crown admits as much, and in particular that it should have done more to settle the ASF. But in my view, the judge did not err in finding the delay was not so egregious as to be unreasonable in all of the circumstances, and in particular given the minimal prejudice to the appellant, his general lack of cooperation, his efforts to avoid immediate imprisonment, and the serious nature of the offences.
[40] In my respectful view, the judge also fell into error because he did not consider the effect of the appellant’s guilty plea on the relevant period of delay. In fairness, the judge was not asked by Crown counsel to address that issue which took the delay prior to the plea out of the s. 11(b) equation. As Watt J.A. writing for the Ontario Court of Appeal observed in R. v. Faulkner, 2018 ONCA 174:
[85] A guilty plea is a formal in-court admission of guilt. Further, it constitutes a waiver not only of the accused’s right to require the Crown to prove guilt beyond a reasonable doubt by properly admissible evidence, but also of the related procedural safeguards in the criminal trial process, some of which are constitutionally enshrined and protected: [R. v. T.(R.), 10 O.R. (3d) 514 (C.A.)] at p. 519; Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41, at p. 49.
[41] The appellant does not seek to set aside his guilty plea on appeal. Although that plea does not stand as a waiver of a delay in sentencing, it does stand as a waiver of any procedural safeguards arising before the plea, including the right to challenge a s. 11(b) Charter ruling made up to that point: MacDougall at para. 57; R. v. Duong, 2006 BCCA 325 at para. 12; R. v. Hexamer, 2018 BCCA 142 at para. 57; Faulkner at para. 98.
[42] A guilty plea represents a break in the chain of events which has preceded it in the criminal process. Subsequent delay in sentencing may itself result in an infringement of a s. 11(b) right, but it does not entitle a convicted offender to resurrect delay waived by entry of a guilty plea. To hold otherwise would have a deleterious effect on guilty plea proceedings, and the principle of finality, both of which are instrumental to the efficient functioning of the criminal justice system: Faulkner at para. 103, citing R. v. Anthony-Cook, 2016 SCC 43.
[43] In summary, the total delay in issue was the period from the guilty plea in February 2015 to sentencing in December 2016, most of which was attributable to the appellant. Further, even if it were appropriate to consider the entire period of delay from charge to sentencing on a s. 11(b) application brought after verdict, the appellant in this case waived the period of delay that preceded his guilty plea.
[44] For these reasons, I would dismiss the appeal.
“The Honourable Madam Justice Fenlon”
I AGREE:
“The Honourable Mr. Justice Harris”
I AGREE:
“The Honourable Madam Justice Fisher”