COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Reinbrecht,

2019 BCCA 28

Date: 20190130

Docket: CA43699

Between:

Regina

Respondent

And

Leon Michael
Reinbrecht

Appellant

Before:

The Honourable Mr. Justice Frankel

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Willcock

On appeal from:  An
order of the Supreme Court of British Columbia, dated
October 27, 2015 (conviction) (
R. v. Reinbrecht
, 2015 BCSC 1960,
Kamloops Registry No. 93462-1).

Counsel for the Appellant:

G.P. DelBigio, Q.C.
A.M. Latimer

Counsel for the Respondent:

S. Elliott

Place and Date of Hearing:

Kamloops, British
  Columbia

October 30, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 30, 2019

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Willcock

Summary:

Mr. Reinbrecht appeals an
order dismissing his application for a stay of proceedings on the basis that
his s. 11(b) Charter right to a trial within a reasonable time was
violated. The delay included time for the appellant to bring a Rowbotham
application and for the fixing of a new trial date as a result of a change in a
key witnesss statement that resulted in defence counsel having to withdraw and
new counsel to be retained. The trial judge, applying the Morin framework, found
the 46-month and 17-day delay between charge and the end of trial did not
violate the appellants s. 11(b) Charter right. Shortly after the judges
ruling, R. v. Jordan,
2016 SCC 27
was released. On appeal, the appellant
submits the judge erred by not granting him a stay of proceedings where the
total delay was presumptively unreasonable under the new framework. Held:
Appeal dismissed. Under the new framework, the delay caused by the Rowbotham
application and for the appellant to retain new counsel and secure a new trial
date, are discrete events to be deducted from the total delay. This results in
the total delay falling below the presumptive ceiling of 30 months in superior
courts. The judge also found that the case was factually and legally complex,
which further justifies delay that may exceed the presumptive ceiling. Therefore,
under the Jordan framework the delay was not unreasonable. In any event, as this
case was still in the system post-Jordan, under the transitional exceptional circumstance
exception any minimal delay that may have exceeded the presumptive ceiling was
justified and would support the dismissal of the application as the appellant failed
to demonstrate any error by the judge in her application of the Morin framework.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

[1]

Mr. Reinbrecht appeals an order dismissing his application for a
judicial stay of proceedings pursuant to s. 24(1) of the
Canadian Charter
of Rights and Freedoms
[
Charter
]. He applied for a judicial stay on
the basis that his s. 11(b)
Charter
right to be tried within a
reasonable time was infringed. He brought the application following his
conviction on one count of criminal negligence causing death and one count of
criminal negligence causing bodily harm. The trial judge issued reasons for her
ruling on May 26, 2016. One month later,
R. v. Jordan,
2016 SCC 27, was released.

[2]

In determining Mr. Reinbrechts s. 11(b) application, Justice
Donegan applied the analytical framework from
R. v. Morin,
[1992] 1
S.C.R. 771. The Supreme Court of Canada summarized the
Morin
framework in
Jordan
at para. 30:

[30]      The
Morin
framework
requires courts to balance four factors in determining whether a breach of
s. 11(b) has occurred: (1) the length of the delay; (2) defence waiver;
(3) the reasons for the delay, including the inherent needs of the case,
defence delay, Crown delay, institutional delay, and other reasons for delay;
and (4) prejudice to the accuseds interests in liberty, security of the
person, and a fair trial. Prejudice can be either actual or inferred from the
length of the delay. Institutional delay in particular is assessed against a
set of guidelines developed by this Court in
Morin
: eight to ten months
in the provincial court, and a further six to eight months after committal for
trial in the superior court.

[3]

In her analysis, the judge considered the timeframe from December 8,
2011, when Mr. Reinbrecht was first charged, to October 27, 2015, when he
was found guilty of both counts. The judge did not find any defence waiver,
which she recognized had to be clear and unequivocal, with full knowledge of
the right one is waiving (at para. 23). She held the total delay was 46
months and 17 days. The judge then balanced the factors enumerated in
Morin
and concluded that they did not favour granting a judicial stay.

[4]

Jordan
changed the focus of s. 11(b)
Charter
applications
from institutional delay to defence delay. The new analytical framework fixed
presumptive ceilings for unreasonable delay of 18 months for cases proceeding to
trial in the provincial court, and of 30 months for those proceeding to trial
in the superior court or going to trial in the provincial court after a
preliminary inquiry (at para. 46). Total delay (minus defence delay) that
exceeds the relevant ceiling is now presumptively unreasonable (at para. 47).
The burden then shifts to the Crown to justify the delay. The Crown may
discharge its burden by establishing exceptional circumstances. These arise where
a discrete event is reasonably unforeseeable or unavoidable and the Crown
cannot reasonably remedy the delays emanating from those circumstances (at para. 69)
and are deducted from the total delay. Delay that continues to exceed the
presumptive ceiling may then also be justified based on the complexity of the
case (at para. 81).

[5]

If after deducting delay that arises from a discrete event, the net
delay exceeds the presumptive ceiling and the delay above the ceiling is not
justifiable based on the complexity of the case,
Jordan
adds a third
form of exceptional circumstances to consider, namely transitional exceptional
circumstances, for cases that were still in the system when
Jordan
was
decided. (See also, more recently,
R. v. Cody
, 2017 SCC 31 at para. 46).
The transitional exceptional circumstance involves a qualitative assessment of
the presumptively unreasonable delay based on the parties reasonable reliance
on the law as it previously existed under
Morin
(
Jordan
at para. 96).

[6]

As Mr. Reinbrechts case was in the system by reason of his
having filed an appeal before
Jordan
was released, this Court must re-examine
his application under the new framework. In applying the
Jordan
framework,
I am satisfied two discrete events reduce the net delay to 29.5 months. The
first discrete event is the delay caused by Mr. Reinbrechts
Rowbotham
application. That period of time began on November 23, 2012, when he filed his
application, and continued to October 4, 2013, when counsel for Mr. Reinbrecht
on the
Rowbotham
application advised the court he had been retained as
defence counsel of record. The delay caused by this discrete event was 10
months and 11 days. The second discrete event involved the delay caused by the change
in a key witnesss statement. This event prompted Mr. Reinbrechts counsel
to withdraw as counsel of record on November 26, 2013, a few months before
the six-week jury trial was scheduled to begin in January 2014. This event
continued until about mid-June 2014, when both sides indicated they were
available for trial but the court could not accommodate them. The time for this
discrete event was six months and 20 days.

[7]

When the cumulative delay of 17 months for these two discrete events is deducted
from the total delay of 46 months and 17 days, the net delay (29.5 months) falls
on the border of presumptively unreasonable delay under
Jordan.
I would
further consider the judges finding regarding the complexity of the case (at para. 144)
and, in any event, the transitional exceptional circumstance, to conclude that
any delay over the presumptive ceiling is justified.

Summary of Events

[8]

Mr. Reinbrecht brought his s. 11(b) application after the
judge had rendered her verdict on both charges in Reasons for Judgment issued
on October 27, 2015, indexed at
R. v. Reinbrecht
, 2015 BCSC 1960. On
May 26, 2016, the judge provided oral reasons for her ruling on Mr. Reinbrechts
application for a judicial stay, indexed at
R. v. Reinbrecht,
2016 BCSC
1790 [the
Ruling
].

[9]

In the
Ruling
, the judge provided a comprehensive chronology of court
appearances and other milestones in the case, from the time Mr. Reinbrecht
was first charged to when the trial commenced on February 10, 2015 (at para. 12).
This summary is not in dispute, and I attach it as Schedule A to these reasons.

[10]

At para. 13 of the
Ruling
, the judge added that she held two
more pre-trial conferences before the start of the trial on February 10, 2015,
the evidence was concluded on May 26, 2015 with some periods of adjournment,
and final submissions were provided on June 15, 2015.

[11]

The relevant circumstances to the application may be summarized briefly.
On July 3, 2010, Mr. Reinbrecht was operating a speed boat that collided
with a houseboat on Shuswap Lake. The collision resulted in the death of one
person and the injuries of several others. Mr. Reinbrecht was interviewed
by the police the following day. On December 8, 2011, he was charged with one
count of criminal negligence causing death and one count of criminal negligence
causing bodily harm.

[12]

Mr. Reinbrecht retained counsel immediately. After a reasonable intake
period, Mr. Reinbrecht elected to be tried by a Supreme Court judge alone,
and a preliminary inquiry was scheduled. The Crown and defence disagreed on the
estimated length of the preliminary inquiry. The Crown asked for six days; the
defence requested three days, expressing concern that Mr. Reinbrecht could
not afford a more lengthy preliminary inquiry.

[13]

On September 25, 2012, months before the preliminary inquiry was
scheduled to commence, the Crown elected to proceed by way of direct
indictment. Mr. Reinbrecht was deemed to have elected to be tried by a
judge and jury.

[14]

Mr. Reinbrecht did not have the financial resources to retain
counsel for the estimated six-week jury trial. On November 23, 2012, ten months
after he was first charged, he filed an application for an Order staying the
proceedings until the Attorney General of British Columbia provides the
necessary funding for counsel subject to any assessment of counsels bill,
commonly referred to as a
Rowbotham
application, after the judgment in
R. v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A). His then lawyer,
who was not counsel of record, agreed to represent Mr. Reinbrecht for the
limited purpose of completing the
Rowbotham
application.

[15]

The trial was scheduled to commence in September 2013. Despite the
efforts of both sides, the
Rowbotham
application could not be completed
in time for the September 2013 trial date. On June 18, 2013, counsel for Mr. Reinbrecht
applied to adjourn the September 2013 trial date to January 2014, stating that
he was cautiously optimistic that the
Rowbotham
application would be
successful and that he would be appointed as counsel of record for Mr. Reinbrecht.
He also agreed that the delay caused by an adjournment of the trial date would lie
at the foot of the defence.

[16]

On that basis the chambers judge granted the adjournment application
with the proviso that there would be no further adjournments granted. Accordingly,
the trial date was adjourned and a new trial date fixed for January 2014.

[17]

On July 25, 2013, the
Rowbotham
application was heard and a
conditional stay of proceedings was granted pending the appointment of
state-funded defence counsel. The order was subject to a number of disclosure
requirements by Mr. Reinbrecht and a condition that required him to sign
an indemnity agreement with the Province.

[18]

In August 2013, a key Crown witness advised her father that she wanted
to change her statement to the police. She had been having nightmares about the
incident and reported that she no longer wished to protect Mr. Reinbrecht.
The Crown asked the police to re-interview the witness. As the witness was
eight months pregnant and having nightmares, the police decided to wait until
after she delivered her baby. The child was born in September 2013, and the
police re-interviewed her in October 2013.

[19]

At a September 10, 2013 pre-trial conference, Mr. Reinbrechts
lawyer requested an adjournment of the January 2014 trial date, advising the
court that, even if he was appointed as counsel for Mr. Reinbrecht that
day, he could not be ready for the January 2014 trial date. His request for an adjournment
was not granted by the chambers judge who adjourned it to October 4, 2013. On
that date counsel for Mr. Reinbrecht advised the court that he had been appointed
to act as defence counsel for the trial. The January 2014 trial date remained
in place.

[20]

On October 22, 2013, a key Crown witness gave a revised statement to the
police in which she alleged that approximately one month after the collision
she had participated in a meeting with Mr. Reinbrecht, his son and his lawyer.
During the meeting, she said, the lawyer told them to keep quiet or not say
anything about a certain piece of evidence discussed in everyones presence (
Ruling
at para. 87). The lawyer denied making that statement but felt
compelled to withdraw as Mr. Reinbrechts lawyer for ethical reasons. He
did so on November 26, 2013, which resulted in Mr. Reinbrecht having to
retain new counsel. This event, the appointment of new defence counsel, required
a further adjournment of the January 2014 trial date.

[21]

In January 2014, Mr. Reinbrecht retained Mr. DelBigio, Q.C. On
February 3, 2014, the parties appeared before a judge to fix a new trial
date. Although the court could accommodate a six-week jury trial in the period
from early October through to the Christmas break, Mr. DelBigio was not
available until mid-November. This left only five weeks until the break. At
Mr. DelBigios suggestion the trial was re-scheduled for February 2,
2015.

[22]

In or around December 2014, Mr. DelBigio unexpectedly became unavailable
and Mr. Doyle stepped in to replace him. On December 19, 2014, the defence
re-elected to be tried by a Supreme Court judge alone. Anticipating that the
re-election would shorten the trial time, the parties and the judge agreed to
accommodate the defences request to have the trial start one week later, on
February 10, 2015.

[23]

The judge found the trial was delayed 11 months by the
Rowbotham
application and six months by the witness revised statement, which caused new defence
counsel having to be retained.

Reasons for Ruling

[24]

The judge found the Crown did not establish any period of time that
could be attributed to defence waiver or defence-caused delay, and therefore
the overall length of the delay to be considered was 46 months and 17 days (at para. 27).

[25]

She then addressed certain specific time periods.

December 8, 2011 to September 25, 2012

[26]

This period pre-dated the Crown preferring the direct indictment. The
judge attributed six months to inherent delay and three months to institutional
delay (at para. 39).

[27]

The defence submitted that the Crowns decision to prefer a direct
indictment caused significant delay because Mr. Reinbrecht had to go
forward with a
Rowbotham
application. He argued that any number of
things, such as witness examination, could have occurred in the preliminary
inquiry to expedite the overall process.

[28]

The judge found that, based on the guilty verdicts at trial, the
preliminary inquiry would have resulted in a committal to stand trial and moved
the matter into Supreme Court, which would have required Mr. Reinbrecht to
make a
Rowbotham
application in any event (at para. 45). Had the
preliminary inquiry proceeded, the judge found, it would have taken four additional
months for the matter to get to trial (at para. 46). Therefore, she
concluded, the Crown preferring a direct indictment did not lengthen the trial
process.

September 25, 2012 to January 2014

[29]

This period covered the time between when the direct indictment was
preferred and the second scheduled trial date in January 2014. She analyzed
this period in two stages: the first, being from the time the direct indictment
was preferred on September 25, 2012 to the fixing of the first trial date on
February 2013; the second being from that date until the second trial date in
January 2014. The judge attributed the first stage to inherent delay and the
second stage to other reasons for delay (at paras. 48, 73, 75
‒
77).

[30]

The judge found the first four months in the Supreme Court should be
attributed to intake time, time to retain counsel, and time to prepare (at para. 75).
She held that in the ordinary course such a
Rowbotham
application
should reasonably have been completed within this timeframe and, pursuant to
Morin,
categorized the first stage as inherent delay (at para. 73).

[31]

As to the period of time for the second stage, which included the seven
or eight months between completing intake requirements and the first trial date
of September 2013, the judge would have attributed this period to institutional
delay had the trial proceeded on that date (at para. 75). The September 2013
trial date, however, had to be adjourned because defence counsel was not yet retained
albeit he was cautiously optimistic that he would be. Mr. Reinbrecht used
the seven months between February and September 2013 to pursue his
Rowbotham
application.

[32]

The judge found the delay that occurred during the
Rowbotham
application process was caused in part by Mr. Reinbrecht and in part by the
financial disclosure the Crown was obliged to request, as reflected in
R. v.
Crichton,
2015 BCCA 138. In particular, the judge attributed the delay to:
(i) Mr. Reinbrechts initial disclosure being incomplete, inadequate,
and without supporting documentation; (ii) the unsuccessful negotiations
between counsel with respect to the extent to which Mr. Reinbrecht would
be required to contribute to his legal costs, which necessitated a hearing of
the application; (iii) the hearing of the
Rowbotham
application by
another judge, which resulted in a provisional order with conditions and a
requirement that Mr. Reinbrecht make further financial disclosure; (iv) the
additional five months thereafter for Mr. Reinbrecht to respond to the terms
and conditions under the provisional order, which another judge found that Mr. Reinbrecht
had not undertaken with the appropriate diligence; and (v) a further two
months delay in Mr. Reinbrecht signing the indemnity agreement, albeit
his then counsel had agreed to proceed with the trial on the January 2014 date
on the understanding that he would be representing Mr. Reinbrecht.

[33]

The judge categorized the seven or eight months Mr. Reinbrecht took
to complete his
Rowbotham
application and the adjournment of the September
2013 trial date to January 2014 under other reasons for delay, which she
considered to be neutral under
Morin.

January 2014 to February 10, 2015

[34]

In October 2013, a key Crown witness came forward with an unexpected new
statement that caused Mr. Reinbrechts then counsel to withdraw. Mr. Reinbrecht
retained new counsel, Mr. DelBigio, in January 2014.

[35]

As of January 2014, the matter was to proceed as a six-week jury trial. Both
Mr. DelBigio and Crown counsel were available for trial in June 2014,
however the court could not accommodate that length of a jury trial during the
summer months. Accordingly, a third trial date was scheduled to commence on February
2, 2015.

[36]

The judge categorized the six-month delay of the trial from January 2014
to June 2014 as other reasons for delay. She found the unexpected change in the
witnesss statement and the need for Mr. Reinbrecht to obtain new counsel to
be a neutral factor that could not be attributed to any party (at para. 95).
With respect to the eight-month delay from June 2014 to February 2015, the
judge characterized this as institutional delay because counsel for both sides
were available for trial in June 2014 and the court was unable to offer those
dates. She did so while acknowledging that some portions of this time might
possibly be attributed to Mr. DelBigios calendar or perhaps his
preference for starting in February as opposed to January (at para. 96).

February 10, 2015 to October 27, 2015

[37]

This period spanned the start of the trial to when the judge rendered
her reasons for conviction. The judge attributed one month of this eight-and-a-half-month
period to Crown delay for providing some late disclosure, which in turn led to
a short adjournment and some other delays (at para. 104). She attributed
the remaining seven-and-a-half months to inherent delay.

Summary of the delay findings

[38]

In summary, the judge characterized the reasons for the delay as:

·

Inherent delay in Provincial Court
‒
6 months;

·

Institutional delay in Provincial Court
‒
3 months;

·

Inherent delay in Supreme Court
‒
11.5 months;

·

Institutional delay in Supreme
‒
8 months;

·

Actions of the Crown
‒
1 month;

·

Actions of the defence
‒
none;

·

Other reasons, which are neutral
‒
17 months.

Prejudice to the accused

[39]

The judge then turned to the issue of prejudice to the accused caused by
the delay, as required under
Morin.

[40]

The judge agreed with Mr. Reinbrecht that some degree of prejudice
could be inferred given the length of the delay (at para. 108). She then
assessed whether there was any actual prejudice to the three interests of an
accused that are protected by s. 11(b): liberty, security of the person,
and the right to make full answer and defence.

Liberty

[41]

The judge found Mr. Reinbrecht did not suffer any actual prejudice
to his liberty interest; he was not arrested or held in pre-trial custody, had
no bail conditions, attended court by summons, and had counsel appear for him
at court until his trial (at para. 110).

Security of the person

[42]

The police interviewed Mr. Reinbrecht about the collision the day
after it occurred. The judge observed that he lived under the weight of
possible criminal charges for 17 months until he was charged on December 8,
2011 (at para. 115). He then lived under the weight of the charges for
almost four more years until his trial concluded.

[43]

She further noted that Mr. Reinbrecht lived in a small community
near where the incident occurred, and that the community had discussed and
speculated on who was to blame, including Mr. Reinbrechts possible impairment
at the time of the collision. Media coverage included details about his history
and the investigation that gave him unwanted public attention and fuelled the
speculations. Mr. Reinbrechts employment, relationships, and mental
health all suffered.

[44]

The judge found the negative effects on Mr. Reinbrechts security
interest arose inevitably from the investigation and charge, but they were
extended by the delay. Therefore, Mr. Reinbrecht suffered some injury to
his security of the person from the delay (at para. 127).

Right to make full answer and defence

[45]

The judge noted that this case was somewhat unique because: (i) much
of the delay was attributed to the
Rowbotham
application, which was
specifically meant to ensure that Mr. Reinbrecht had a fair trial; and
(ii) the s. 11(b) application was made after the case had been heard,
so she could examine if there was any actual prejudice that needed to be
righted, rather than considering the risk of prejudice.

[46]

The judge found there was no evidence of actual prejudice to Mr. Reinbrechts
right to make full answer and defence because: (i) he had very effective
counsel; and (ii) the delay had no adverse impact on the witnesses or the
tendering of evidence.

Balancing process

[47]

The judge concluded that, balancing these factors against societys
interest in seeing those charged brought to trial, weighed against the granting
of a judicial stay because: (i) the inherent delay was reasonable given
the complexity of the case; (ii) the institutional delay was within the
Morin
guidelines; (iii) both the Crown and the defence took steps to obtain a
speedy trial; (iv) the two significant delays, the
Rowbotham
application and the revised statement by a key witness, were neutral in the
analysis; (v) the prejudice to Mr. Reinbrecht was not substantial;
and (vi) the verdicts were serious and there is a high social interest in
seeing this trial through to sentencing.

On Appeal

[48]

Mr. Reinbrecht submits the judge erred in law:

1.       In
finding that the total delay did not violate his s. 11(b)
Charter
right
to be tried within a reasonable time
;
and

2.       If correct,
the judge erred in not granting a stay of proceedings on that basis.

[49]

Counsel for Mr. Reinbrecht submits the system failed his client
because he should have received a trial in a more timely manner. He contends the
new
Jordan
framework has failed to achieve its stated objective of
providing an easier approach to determining unreasonable delay than the
Morin
approach, which led to doctrinal and practical problems and contributed
to a culture of delay and complacency (
Jordan
at paras. 29, 31
‒
32). He argues that the
Jordan
framework forces the parties to engage in the same quibbling over the
accounting of various events that occur during a trial, as was the case under
the broken
Morin
framework. He focuses on the following passages in
Jordan
,
which summarize the dysfunctional aspects of the
Morin
framework and submits
these issues have continued with
Jordan
:

[36]      The retrospective analysis required by
Morin
also
encourages parties to quibble over rationalizations for vast periods of
pre-trial delay. Here, for example, the Crown argues that the trial judge erred
in characterizing most of the delay as Crown or institutional delay. Had he
assessed it properly, the argument goes, he would have attributed only five to
eight months as Crown or institutional delay, as opposed to 34.5 months.
Competing after-the-fact explanations allow for potentially limitless
variations in permissible delay. As the intervener the Criminal Lawyers
Association (Ontario) submits: Boundless flexibility is incompatible with the
concept of a
Charter
right and has proved to serve witnesses, victims,
defendants and the justice systems reputation poorly (I.F., at para. 12).

[37]      Finally, the
Morin
framework
is unduly complex. The minute accounting it requires might fairly be considered
the bane of every trial judges existence. Although Cromwell J. warned in
R.
v. Godin,
2009 SCC 26, [2009] 2 S.C.R. 3, that courts must avoid failing to
see the forest for the trees (para. 18), courts and litigants have often
done just that. Each day of the proceedings from charge to trial is argued
about, accounted for, and explained away. This micro-counting is inefficient,
relies on judicial guesstimations, and has been applied in a way that allows
for tolerance of ever-increasing delay.

[50]

In sum, counsel for Mr. Reinbrecht submits courts need to strictly
apply the presumptive ceilings to effectively address the culture of delay and
complacency that is said to have developed under the former framework.

[51]

Counsels observations, however, of how the
Jordan
framework may
not be achieving its stated objective, cannot detract from the task of this
Court, which is to apply the
Jordan
framework to determine if the delay in
this case was unreasonable.

[52]

I begin by noting that the judge found no defence waiver or
defence-caused delay, the two components of defence delay noted in
Jordan
(at
para. 61), and these do not appear to be issues on appeal. During the June
18, 2013 appearance, then counsel for Mr. Reinbrecht agreed to take
responsibility for the four-month delay that would result if the adjournment
was granted. A chambers judge subsequently granted the adjournment on the
understanding that there would be no further adjournments granted. New trial
dates were fixed for January 2014. However, shortly thereafter, the
circumstances of the second discrete event that resulted in counsel for Mr. Reinbrecht
having to withdraw as counsel of record, new defence counsel to be appointed,
and an adjournment of the January 2014 trial date to February 2015, overtook
this anticipated four-month defence-caused delay.

[53]

The central issues, therefore, on appeal are whether the delay caused by
the
Rowbotham
application and by Mr. Reinbrecht having to retain
new counsel as a result of a revised statement from a key Crown witness, both
of which were neutral factors under the
Morin
approach, fall within the
category of exceptional circumstances under
Jordan
. If they are found to
be exceptional circumstances, the time attributed to each of these discrete events
must be deducted from the total delay.

Exceptional circumstances

[54]

Exceptional circumstances are described in
Jordan
as follows:

[69]      Exceptional
circumstances lie
outside the Crowns control
in the sense that (1) they
are reasonably unforeseen
or
reasonably unavoidable,
and
(2) Crown counsel cannot reasonably remedy the delays emanating from those
circumstances once they arise. So long as they meet this definition, they will
be considered exceptional. They need not meet a further hurdle of being rare or
entirely uncommon.

[55]

There are three forms of exceptional circumstances relevant to this
case: discrete events, the complexity of the case, and transitional
considerations.

[56]

Mr. Reinbrecht submits there are no exceptional circumstances that
would warrant a reduction in the total delay of 46 months and 17 days, which
substantially exceeds the presumptive ceiling of 30 months. In particular, he
submits that neither the delay related to the
Rowbotham
application nor
the delay related to a key witnesss revised statement that resulted in him
having to retain new counsel fall within the category of discrete events under
Jordan
.
The Crown submits both are discrete events as: (1) the time for the
Rowbotham
application was necessary for it to comply with the disclosure requirements
from
Crichton;
and (2) the delay caused by the Crown witnesss
revised statement was a quintessential discrete event that was not
foreseeable or avoidable by the Crown. Neither of these events, it submits, could
be remedied by the Crown.

Discrete events

[57]

Discrete exceptional events are quantifiable events or circumstances
that are reasonably unavoidable or unforeseeable (
Jordan
at para. 73).
The period of delay subtracted for a discrete event is limited to delay the
Crown and the system could not reasonably have mitigated (
Jordan
at para. 75;
Cody
at para. 48). In this case, two discrete events must be
subtracted from the total delay: the
Rowbotham
application (10.5 months)
and the revised witness statement (6.5 months). The net delay after subtracting
these two discrete events is 29.5 months.

The Rowbotham application

[58]

The 10.5 months between when Mr. Reinbrecht filed his
Rowbotham
application (November 23, 2012) and when he retained counsel
(October 4, 2013) is a discrete event that should be deducted from the
total delay. The
Rowbotham
application was an unavoidable event aimed at
ensuring Mr. Reinbrecht received a fair trial. Mr. Reinbrecht was in
control of how long it took him to establish that he met the financial criteria
for a
Rowbotham
order. The Crown had no control over the financial information
in Mr. Reinbrechts possession and was required to collect this
information to comply with
Crichton
.

[59]

In
Crichton,
this Court addressed the scope of exceptional
circumstances in the context of a
Rowbotham
application and an
application for a conditional stay of proceedings pending a determination of an
alleged s. 11(d)
Charter
violation. After a comprehensive review of
the jurisprudence, Justice Bennett wrote:

[48]      Under the constitution, the allocation of
taxpayers dollars is not for the judicial branch of government to decide,
except in the face of a
Charter
challenge or concern for judicial
independence (
Criminal Lawyers Association
at para. 41). Yet, the
constitution also imposes a duty on the government to fund a lawyer, outside of
the provincially established legal aid scheme, in certain circumstances. An
order staying the proceedings is a rare and exceptional order. As noted above,
it is only to be invoked in the clearest of cases. Considering those factors,
it is entirely appropriate to require an applicant seeking the funding of
counsel by the taxpayer to establish strictly enforced guidelines for financial
eligibility.

[49]      In summary, to obtain a conditional stay of
proceedings based on a violation of ss. 7 and 11(d), certain financial
criteria must be established. First, the applicants financial circumstances
must be extraordinary. The applicant must provide detailed financial evidence
of his or her financial circumstances, which includes supporting evidence. The
applicant must save money to hire counsel or contribute to his or her legal
fees, and make efforts to borrow money from friends or family. The applicant
should try to obtain employments or additional employment if already employed.
The applicant should try to find counsel who would be willing to work at LSS
rates. The applicant must reasonably exhaust his or her own assets to pay for
counsel before looking to the taxpayer to pay for a lawyer. The applicant must
demonstrate that he or she was prudent with his or her personal living expenses
and show foresight and planning of his or her financial affairs to pay for a
lawyer.

[51]      The inquiry into the
applicants financial circumstances commences when he or she reasonably knew a
lawyer would need to be retained to defend criminal charges, and at the latest,
when charges were laid.

[60]

Mr. Reinbrecht does not challenge the correctness of an applicants
legal obligations to succeed in a
Rowbotham
application as set out in
Crichton.
They are unquestionably stringent to meet. That is because a
Rowbotham
order
is a rare and exceptional order to grant.

[61]

The judge found the
Rowbotham
application in this case was an unusually
protracted process, which effectively occupied the first 12 months in the
Supreme Court and caused the first trial date to be adjourned (at para. 55).
Mr. Reinbrecht does not take issue with the judges findings of fact on
the reasons for the delay with respect to the
Rowbotham
application.
Rather, he contends the application should not be considered a discrete event
as, given the seriousness of the charges, the Crown should reasonably have known
that Mr. Reinbrecht would need state-funded defence counsel when the
length of time for the preliminary inquiry was being discussed (i.e., between
January and April 2012). In those circumstances, he submits, the Crown should
have agreed summarily to his application, provided interim funding, and
addressed the details it required to approve the application retrospectively.

[62]

Mr. Reinbrecht further submits the Crown was too rigid in its
application of the requirements for the appointment of state-funded counsel. He
contends that in complex cases such as this one, state-funded counsel should
immediately be appointed upon the accused being charged with a serious offence
and a professed inability to pay for counsel of their choice. However, what
Mr. Reinbrecht proposes is inconsistent with the well-developed body of
binding authority that governs
Rowbotham
applications.

[63]

While the judge found that both parties were working cooperatively to secure
funding for defence counsel, the delay appears to have been largely
attributable to Mr. Reinbrechts inability to meet the financial
disclosure requirements for a
Rowbotham
application in a timely way.
While this unduly protracted process under
Morin
was correctly
characterized as a neutral factor by the judge, under
Jordan
a more
nuanced examination of the reasons for the delay are required.

[64]

Applying
Jordan
on appeal, it seems to me that the delay was caused
by: (i) the unduly protracted process created in large part by Mr. Reinbrecht
failing to comply with the Crowns financial disclosure requests that were in
accord with
Crichton;
(ii) the time required for the
Rowbotham
hearing
when negotiations failed with respect to defence counsels proposed fees and
disbursements, and the extent to which Mr. Reinbrecht would contribute and
indemnify the Crown for his legal costs; and (iii) the further delay in Mr. Reinbrecht
complying with the conditions and additional disclosure requirements of the provisional
Rowbotham
order. In my assessment, the
Rowbotham
application was
a discrete event as described in
Jordan
; it was not within the Crowns
control. This period of time is appropriately deducted from the total delay.

Key witnesss revised statement

[65]

In October 2013, a key Crown witness revised her statement to the
police. The revised statement resulted in defence counsel having to withdraw
from the case for ethical reasons. Mr. Reinbrecht had to retain new
counsel and the January 2014 trial date had to be adjourned. In my view, the
six-and-a-half months between when Mr. Reinbrechts counsel withdrew from
the case (November 26, 2013) and when his new counsel was ready to proceed
(mid-June 2014) qualifies as a discrete event under
Jordan
and must be
subtracted from the total delay.

[66]

On appeal, Mr. Reinbrecht submits the judge erred in not
attributing the two-month delay between when the witness told the police she
intended to revise her statement and when the police re-interviewed her to the
Crown. In his view, the Crown should have arranged to re-interview the witness as
soon as it knew she intended to change her statement (August 2013). In August
2013, the witness was eight months pregnant and experiencing nightmares as a
result of the incident. In my view, the Crowns decision to re-interview the
witness after she delivered her baby was a reasonable one in the circumstances.

[67]

Pursuant to the
Jordan
framework, I am satisfied this was a
discrete exceptional event that (1) was reasonably unavoidable and unforeseeable,
(2) could not be remedied by the Crown, and (3) the Crown acted
reasonably in re-interviewing the witness after the baby was born. In my view,
the six-and-a-half-month delay caused by this unforeseen event must also be
deducted from the total delay.

[68]

This brings the net delay to 29.5 months, just below the relevant
presumptive ceiling. However, some dates are not precise from the record, for
example the June 2014 date that the parties agreed they were both available for
a six-week jury trial but the court could not accommodate their request.
Therefore, as the net delay falls close to the border of unreasonable delay
under
Jordan
, I propose to further consider whether any delay over the
presumptive ceiling is justified on the basis of the complexity of this case
and thereafter under the transitional exceptional circumstance.

Case complexity

[69]

Delay above the presumptive ceiling may still be justifiable in
particularly complex cases (
Jordan
at para. 80;
Cody
at para. 63).
Jordan
describes particularly complex cases as
cases
that, because of the nature of the
evidence
or the nature of the
issues
,
require an inordinate amount of trial or preparation time (at para. 77).
Determining
whether case complexity justifies delay above the ceiling is a qualitative
assessment that falls well within a trial judges expertise (
Cody
at paras. 63
‒
65).

[70]

The judge found that the case had inherent complexity arising from the
volume and nature of the evidence and the nature of the factual and legal
issues at play (at para. 144). Her description of the complexity of this
case was prescient as it mirrored the language in
Jordan
of the factors
to consider in assessing this issue.

[71]

In my view, the judges finding with respect to the complexity of this
case, having presided over 32 days of trial, is entitled to deference and under
Jordan
justifies marginal delay that may exceed the presumptive ceiling.

Transitional considerations

[72]

In any event, in my view the transitional considerations justify the
delay, if any, that may exceed the presumptive ceiling in this case. For those proceedings
that took place before
Jordan
was released, but are still in the
system, the focus of the transitional exceptional circumstance assessment is on
the parties reliance on the factors that were relevant under
Morin
,
including the seriousness of the offence and prejudice (
Cody
at para. 71).
Cody
provides that, in transitional cases, where delay over the
presumptive ceilings meets the constitutional muster set out in
Morin,
it
will be justified. The Crown must demonstrate that it would have understood
the delay to be reasonable given its expectations prior to
Jordan
and
the way delay and the way the other factors such as seriousness of the offence
and prejudice under
Morin
would have been assessed. (
Cody
at para. 68).

[73]

In this case, the entire proceedings and the s. 11(b) hearing took
place before
Jordan
was released. The charges were serious. The judge
found that while Mr. Reinbrecht suffered some injury to the security of
his person by reason of the negative effects of the delay on his employment,
relationships and mental health, on balance the prejudice he experienced from
the delay was not substantial.

[74]

The judges
Ruling
clearly demonstrates that the parties relied
on the
Morin
framework to determine Mr. Reinbrechts s. 11(b)
application. Moreover, on appeal, Mr. Reinbrecht does not contend the
judge erred in characterizing the time for the
Rowbotham
application or
the delay caused by the witnesss revised statement as neutral under
Morin.
In
these circumstances, I am satisfied the Crown has established that the delay in
this case was justified based on the parties reliance on the previous state of
the law.

Disposition

[75]

In the result, after deducting the two discrete events and, if
necessary, considering the complexity of the case, the net total delay was in
my view reasonable. In any event, under the transitional exceptional
circumstance any marginal delay that may have exceeded the presumptive ceiling was
justified. Accordingly, I would dismiss the appeal.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Mr. Justice
Frankel

I AGREE:

The Honourable Mr. Justice
Willcock


COURT OF APPEAL
FOR BRITISH COLUMBIA

Citation:

Williams
  v. Simon Fraser University,

2019 BCCA 41

Date: 20190130

Docket: CA45591

Between:

Aleesha Williams

Appellant

(Plaintiff)

And

Simon Fraser University

Respondent

(Defendant)

Before:

The
  Honourable Mr. Justice Frankel

The
  Honourable Mr. Justice Willcock

The
  Honourable Mr. Justice Savage

On appeal from:  An order of the Supreme Court of British
Columbia, dated
September 7, 2018 (
Williams v. Simon Fraser University
, 2018 BCSC 1787,
Vancouver Registry S175149).

Oral Reasons for
Judgment

The Appellant
  appeared in person:

A. Williams

Counsel for
  the Respondent:

R.B.J. Kennedy, Q.C.
Y. Li-Reilly

Place and
  Date of Hearing:

Vancouver, British Columbia

January 30, 2019

Place and
  Date of Judgment:

Vancouver, British Columbia

January 30, 2019

Summary:

The appellant was withdrawn from the professional teacher
education and certification program at the respondent university due to concern
over her performance in the program. After two unsuccessful appeals of the
withdrawal to university officials, the appellant commenced an action against
the respondent for breach of contract and various torts. The respondent applied
to strike the claim, or alternatively, to obtain summary judgment. The judge
allowed the respondents application. The appellant argues the judge erred in
refusing to allow her to file a further amended notice of civil claim,
dismissing her claim summarily, trivializing her claim, conducting the hearing
in a biased manner, and relying on hearsay affidavit evidence. Held: Appeal
dismissed. The judges refusal to allow the appellant to file a further amended
notice of civil claim did not affect the result as the judge considered the
application as though the pleading had been filed. The judge did not err in
striking the claim or granting summary judgment. The dispute was academic in
nature and outside of the jurisdiction of the court, except on judicial review.
The judges conduct during the hearing did not suggest he trivialized the
appellants claim, and it did not give rise to a reasonable apprehension of
bias. The judge did not rely on hearsay evidence in making his decision.

[1]

SAVAGE J.A.
: In this action, Aleesha Williams
challenges the decision of Simon Fraser University (SFU) to withdraw her from
the Professional Development Program in the Faculty of Education (the
Program), a professional teacher education and certification program. The
chambers judge, Mr. Justice Myers, granted a motion to strike the claim
under Rule 9‑5 of the
Supreme Court Civil Rules
as disclosing
no reasonable claim. Alternatively, he would have dismissed the claim pursuant
to Rule 9‑6 of the
Rules
, the summary judgment rule.

[2]

In 2016, Ms. Williams
was a student enrolled in the Program at SFU (a student teacher). The Program
includes educational experiences in a classroom setting, professional
coursework and an intensive training practicum. A student teachers performance
in the Program is monitored by an instructional team. Student teachers who are
unable to continually meet the requirements of the Program may be withdrawn
from the Program.

[3]

If the instructional
team of a student teacher identifies performance issues with a student teacher,
and those performance issues are not sufficiently remedied, a faculty member
may initiate a process referred to as Due Process. The initial step in Due
Process is to issue a Notice of Concern that identifies the performance issues
and specifies conditions which must be met, including timelines within which to
meet the conditions.

[4]

If a student teacher
is unable to meet the conditions, the student teacher can be placed on Notice
of Potential Withdrawal. The Notice of Potential Withdrawal sets out in detail
the performance concerns identified by the instructional team. If significant
improvement is not forthcoming the student teacher may be required to withdraw
from the Program.

[5]

The decision to
require a student teacher to withdraw from the Program is subject to appeal. A
faculty member is assigned to hear and determine the appeal (the First Appeal Review).
The First Appeal Review decision is subject to a further appeal to the Dean of
the Faculty of Education (the Second Appeal Review). This does not end the
opportunities of the student. A student is entitled to apply for re‑entry
into the Program.

[6]

Ms. Williams
was placed on a Notice of Concern on April 12, 2016, which she
successfully addressed, and on a second Notice of Concern on October 5,
2016, which is the subject of this appeal. On October 13, 2016, the
instructional team determined that she had not provided evidence of significant
improvement and placed her on a Notice of Potential Withdrawal. The Notice of
Potential Withdrawal set out in detail the performance concerns identified by
the instructional team. On November 1, 2016, the instructional team
determined that Ms. Williams had not met the performance concerns and she
was withdrawn from the Program.

[7]

Ms. Williams
appealed the withdrawal and the appeal was heard by Dr. Ann Chinnery, the
Director of Undergraduate Programs. In written reasons dated December 15,
2016, Dr. Chinnery dismissed the appeal. Ms. Williams appealed the
First Appeal Review decision to the Dean of the Faculty of Education, Dr. Kris
Magnusson. Dr. Magnusson found no basis to overturn the First Appeal Review
decision and dismissed the appeal on February 10, 2017. Ms. Williams
was then advised of the process for re‑entry to the Program but did not
seek re‑entry.

[8]

Twelve days after
receiving the Second Appeal Review decision, Ms. Williams commenced an
action against SFU in Small Claims Court. An application to transfer the Small
Claims action to BC Supreme Court was dismissed. On June 1, 2017, the
within action was commenced in BC Supreme Court. Ms. Williams filed a notice
of trial on July 25, 2017, setting the action for a 19‑day trial
commencing October 1, 2018, although the trial was later adjourned. On
September 7, 2018, SFUs application to dismiss the action was granted by
Justice Myers in reasons for judgment indexed as
Williams v. Simon Fraser
University
, 2018 BCSC 1787 (RFJ).

[9]

Ms. Williams
appeals the order of Justice Myers on the following grounds, which I summarize
and paraphrase as follows: (1) that the court below erred in not
consenting to her filing a further amended notice of civil claim; (2) that
the court below erred in allowing the motion to dismiss to proceed; (3) that
the court below erred in trivializing and interpreting the facts; (4) the
court below erred in accepting certain evidence; and (5) the court below
conducted the hearing in a manner that was biased.

[10]

In her written
submission, Ms. Williams refers at some length to minor differences
between her transcription of the judges oral reasons and the written judgment
issued by the court. Some of these differences concern alternate citations, punctuation,
others concern such things as how a judge is referenced and substituting a name
for an indefinite reference. I should say at the outset that there is nothing
untoward in such non‑substantive changes made by a judge when finalizing reasons
delivered orally.

[11]

The first ground of
appeal can be dealt with briefly. During her submissions on the application, Ms. Williams
sought to file a further amended notice of civil claim during her reply. SFU
took the position that the application should proceed as though the unfiled
pleadings provided further particulars of Ms. Williams claim. The judge dealt
with SFUs application based on Ms. Williams proposed further amended
notice of civil claim as if this was the governing pleading (RFJ at para. 2).
Thus, whether the notice of civil claim was filed or not was of no consequence
to the outcome of SFUs application.

[12]

The second ground of
appeal is that the matter should not have been determined summarily. Ms. Williams
would have preferred that the matter be determined at a lengthy 19‑day trial
instead. Ms. Williams advances this point based on two general grounds. First,
she says she was misled about the application. Second, she says that because of
the complexity of the matter, and her opposition to proceeding summarily, it
should not have proceeded in that fashion. I see no merit in these positions.

[13]

The application made
by SFU, to deal with the question of whether there was a genuine issue for trial,
and whether the pleadings disclosed a reasonable claim, was made with proper
notice and was not misleading. In her factum, Ms. Williams quotes from
correspondence she received from counsel for SFU, which is not part of the
record before the Court. The portion quoted put Ms. Williams on notice
that SFU intended to proceed summarily. SFUs application was filed on July 12,
2018 and heard on September 6 and 7, 2018. The Notice of Application
and the Amended Requisition made it clear that the matter was to proceed based
on
Civil Rules
9‑6 and 9‑5.

Although the
matter was contested, the judge did not err in allowing SFUs applications to
proceed.

[14]

On the application
to strike, the judge considered what was set out in both the amended notice of
civil claim and in the proposed further amendment (RFJ at para. 9). He
concluded that the gravamen of the complaints is the manner in which SFU
evaluated her and her ultimate dismissal from the program (at para. 10). Further,
he held that characterizing what is in substance an academic matter as a tort
does not avail a plaintiff (at para. 12). The judge also considered the
authorities. Those authorities support the test he applied: that the test on a
motion to strike is whether, assuming the facts in the pleadings are true, is
it plain and obvious that the pleadings disclose no reasonable cause of action.

[15]

In coming to his
conclusion, the judge considered a series of cases which hold that matters that
are fundamentally academic in nature, focusing on the academic requirements,
rules and regulations that a university applies to students, do not fall within
the jurisdiction of a court except when they are reviewable on an application for
judicial review:
Cruickshank v. University of Lethbridge
, 2010 ABQB 186
at para. 12;
Dawson v. University of Toronto
, [2007] O.J. No. 591
(S.C.), affd in part
2007 ONCA 875
;
Warraich
v. University of Manitoba
,
2003 MBCA 58
;
Fufa
v. University of Alberta
,
2012 ABQB 594
. I
agree that this general proposition applies to this dispute.

[16]

The judge also
considered whether allegations of bullying and defamation were independently
supportable. With respect, the allegation about bullying (which he interpreted
as harassment) he found that no allegations of fact were alleged that would
support actionable conduct (at para. 15). The allegations supporting
defamation were directed at Ms. Williams performance, were academic in
nature, and were no different than her complaints with respect to her
assessment and mandatory withdrawal (at para. 16). Furthermore, Ms. Williams
did not allege publication or damage, essential ingredients of the tort of
defamation. In the result, the judge found that the pleadings disclosed no
reasonable claim.

[17]

Pleadings are
required to allege material facts which, if proven, would make out an
actionable claim. The pleadings fell short of this standard but, in any event,
were directed at issues fundamentally academic in nature and not within the
jurisdiction of the courts. Consideration of the evidence did not change the
result. Thus, the judge held, correctly in my view, that the case should be
dismissed under Rule 9‑5 or, alternatively, under Rule 9‑6.

[18]

In my view, Ms. Williams
remaining three grounds of appeal also cannot succeed. The judge neither
trivialized Ms. Williams claims nor exhibited bias in dealing with the claims
in the manner he did. Nor did the judge err in his consideration of affidavit
evidence.

[19]

The examples Ms. Williams
provided as an illustration of the judges trivialization of the facts and her
claim do not show any trivialization or misinterpretation. The judge was merely
applying the legal tests required.

[20]

For example, Ms. Williams
says that the judge trivialized the matter because he dealt with the
application when all [of] the evidence was not there. However, the judge was
required to deal with the application based on the material actually before him.
Ms. Williams also says the judge trivialized the matter because he dealt
with the application over a two‑day hearing. However, the length of time
over which an application is heard is not a measure of whether it is trivial or
not. I see nothing in the manner by which the application proceeded that would
support the notion that the judge did not fully appreciate the importance of
the matter to Ms. Williams.

[21]

The test for reasonable
apprehension of bias is whether an informed person, viewing the matter
realistically and practically, and having thought the matter through, would
conclude that it is more likely than not that the judge would not decide the
matter fairly:
Wewaykum Indian Band v. Canada
, 2003 SCC 45 at para. 60.

[22]

Ms. Williams
says that the judge exhibited bias primarily by attempting to limit her time
for submissions, by restricting her submissions to material before the court
and by laughing and making a joke while SFUs counsel was speaking. I have
reviewed the transcript references provided by Ms. Williams and I find no
basis for her allegation of bias.

[23]

The transcript shows
that the judge directed Ms. Williams to stay focused on the issues
relevant to the application and not to stray into irrelevant matters after she
gave a time estimate of roughly three hours. Likewise, he directed her to
deal with the material actually before him and not to stray into evidence not
actually before the court. Of course, the judge was required to deal with the
matter based on the pleadings and the evidence before him. The judge committed
no error in attempting to focus submissions on the only material he could
consider on the application.

[24]

Ms. Williams points to two instances where she asserts the judges
demeanor and/or actions are evidence of bias: the judges apparent momentary
expression of amusement when counsel used a series of acronyms and when he
commented on counsel for SFUs mispronunciation of a well-known case name. With
respect, I do not think a reasonable person could construe the statements and conduct
of the judge in this respect, either considered separately or in the context of
the two‑day hearing, to demonstrate a reasonable apprehension of bias.

[25]

Lastly, Ms. Williams
says the judge erred by accepting affidavit evidence that was misleading and
contained hearsay. The affidavit material attached documents related to the Due
Process I described earlier. The affidavit was not tendered for the truth of
the contents of the documents attached. There is no merit to this ground of
appeal. There was nothing improper about the affidavit evidence filed by SFU, and
in any event, the judge made his decision based on Ms. Williams proposed
further amended pleading and the affidavit evidence as a whole. He found that
it did not disclose a cause of action outside of a matter fundamentally
academic in nature, about which the courts will not assume jurisdiction, except
on judicial review.

[26]

In the result, I
would dismiss the appeal.

[27]

FRANKEL J.A.
: I agree.

[28]

WILLCOCK J.A.
: I agree.

[29]

FRANKEL J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Savage