A Campbell River judge ruled that mid-trial decisions are not counted when determining trial length. (Image courtesy Creative Outlet)

A Campbell River judge ruled that mid-trial decisions are not counted when determining trial length. (Image courtesy Creative Outlet)

Application for stay of proceedings due to trial delays dismissed

Mid-trial deliberations should not count toward “Jordan ceiling” — Judge

A Campbell River man’s request to have a conviction in a 2021 case for firearms possession and disobeying a court order overturned based on delays in his trial was dismissed by the Crown on Dec. 23.

In September, Michael Nelson Stogrin of Campbell River was charged with two counts of possessing firearms without a licence and one of disobeying a court order. However, Stogrin appealed the decision on the grounds that his trial was unreasonably delayed in what is known as a Jordan appeal.

The appeal is based on a 2011 case where defendant Barrett Richard Jordan had a delay of 49.5 months between the charges and conclusion of the trial. The Jordan case, went to the Supreme Court of Canada and set out the reasonable expectations for the length of a court case. In Provincial Court a reasonable length of a trial is 18 months.

Stogrin and his lawyers argued that the case, which began on Jan. 4, 2018 and concluded on Sept. 9, 2021 exceeded that 18-month period. The time between those two dates is 1,344 days or 44 months.

However, the Jordan ruling allows for exceptional circumstances and for delays attributable to the defence if the Crown is ready to proceed but the defence is not. Exceptional circumstances do not have to be “rare or ‘entirely uncommon,’” as Judge Barbara Flewelling explained in her written ruling.

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The Jordan ruling allows that “trials are not well-oiled machines,” and that “unforseeable or unavoidable developments can cause cases to quickly go awry.”

The Stogrin case also highlights “an issue that does not appear to have been squarely dealt with by courts in this Province: whether or not mid-trial rulings… are included in the Jordan ceiling of 18 months,” Judge Flewelling writes.

Stogrin and his counsel argued that the time the Crown took to deliberate on a mid-trial ruling should be part of the total trial time. However, Flewelling ruled that deliberation time should be left out.

“In some cases, if the trial concluded in time well below the (Jordan) ceiling, a judge would have many months to render well-crafted written reasons,” Flewelling wrote. “Other cases that are close to the ceiling might leave the judge left with only days… if the case was complex… it would leave a judge with far less time to… deliver a decision.”

Over the course of the trial, Stogrin dismissed his counsel twice, causing delays. He was also under psychological assessment, which the court determined was an exceptional circumstance.

Another major delay was caused by COVID-19. The case was scheduled to be in court on March 25, 2020, but that was delayed by the Chief Judge of the Provincial Court due to the pandemic. That delay was agreed upon as an exceptional circumstance by both the Crown and the defence. The trial was scheduled to resume at the next available date, which was Oct. 14, 2020 and was scheduled for three days. However, Stogrin applied to exclude evidence based on a breach of his Charter rights, mainly that the arrest was unreasonable and based on RCMP pinging his cell phone without a warrant. The application resulted in a mid-trial ruling, which required more time and was not addressed in the original Jordan ruling. Another date (Dec. 21) was added to accomodate the mid-trial ruling.

Stogrin argued that the between Dec. 21 and Flewelling’s ruling on May 6 should not be deducted, but the Flewelling wrote that “Crown was not able to predict the length of cross-examination,” of evidence presented.

“The trial was stood down while Crown considered its response,” said Judge Flewelling.

Judge Flewelling delivered her ruling on the alleged Charter breach on May 6, 2021 — that she found no breaches of Stogrin’s rights.

A few more days were needed to wrap up the original trial, which was concluded on Sept. 9. 2021.

Of the total 1,344 days between the beginning of the trial and the decision, Flewelling calculated 942 of them were excluded as either defence delays or exceptional circumstances. The remaining 402 days (or 13.2 months) fell under the 18-month ceiling.

The application was dismissed and Stogrin’s convictions are still in place.

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