R. v. Navales, 2010 ABQB 817

Court of Queen ’ s Bench of Alberta Citation: R. v. Navales, 2010 ABQB 817 Date: 20101221 Docket: 071434005Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Eric John Navales Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice E.A. Hughes _______________________________________________________ Introduction [ 1 ] Mr. Navales is charged with possession of 10 kilogram sized bricks of cocaine for the purpose of trafficking. He brings this application to stay the charge alleging his right to be tried within a reasonable time under s.11(

b) of the Canadian Charter of Rights and Freedoms has been infringed by delay in this case. There is delay in this case. The issue is has the delay become unreasonable? Procedural History

[ 2 ] The history of this case comes from the exhibits before the Court. It is as follows: November 14, 2007 · Mr. Navales was arrested and charged with possession for the purpose of trafficking cocaine. November 15, 2007 · Mr. Navales appeared in custody in the Provincial Court and requested an adjournment for his show cause. Mr. Navales had not yet retained a lawyer. November 16, 2007 · Mr. Navales applied for an adjournment. November 19, 2007 · David Andrews, defence counsel requested disclosure and asked for an adjournment. November 20, 2007 · Mr.

Navales was released on a Form 32 Recognizance with conditions. The conditions included: report not less than once per week in person to the Vancouver Police Department; no travel outside British Columbia without the permission of the Calgary RCMP Drug Section; provide his residential address and phone number, work address and phone number, and his cellular phone number to the Vancouver Police Department and Calgary RCMP Drug Section; prohibition from consuming alcohol. · Defence counsel requested an adjournment because essential disclosure was not yet available. December 6, 2007 · Counsel for Mr.

Navales appeared in court. Disclosure was provided. The matter was adjourned for election. December 28, 2007 · Further disclosure was provided to defence counsel. January 8, 2008 · Defence counsel requested an adjournment for his election. February 6, 2008 · Defence counsel, Mr. Andrews, advised Karen Molle will also be defence counsel and requested an adjournment for his election. February 20, 2008 · Defence counsel elected provincial court judge alone. A 2 day trial was set for February 9 and 10, 2009.

April 29, 2008 · The Crown sent a Bring Forward Notice to the Provincial Court for May 27, 2008. In addition, a letter was sent to defence counsel, Mr. Andrews, advising of this bring forward date. May 27, 2008 · No one appeared in court on behalf of the accused. May 28, 2008 · The Crown sent another letter to defence counsel advising of its intention to bring forward the matter to June 3, 2008. In addition, a letter was sent to the Provincial Court to arrange for this bring forward date. June 3, 2008 · The Crown sought an adjournment because a witness was not available for the scheduled trial date.

The defence consented to the adjournment and the adjournment was granted. A new trial date was set for May 19 and 20, 2009. October 21, 2008 · The Crown sent a letter to defence counsel bringing forward the matter to October 24, 2008. October 24, 2008 · The Crown directed a Stay of Proceedings. Also, a Forfeiture Order was made for all the drugs, drug paraphernalia and cell phones seized; the cash seized was ordered returned through counsel. January 22, 2009 · The Crown sent a letter to the Provincial Court and defence counsel, Mr.

Andrews, advising the Crown was recommencing the proceedings and sought to bring forward the matter to February 20, 2009. February 2, 2009 · It appears the matter was inadvertently on the list but defence counsel appeared and asked it to go to February 20, 2009 to set a trial date and speak to the release of Mr. Navales. February 20, 2009 · The matter was adjourned to March 24, 2009 to set a trial date. Although it appears there was no process issued to require Mr. Navales to appear before the court, counsel advised he would arrange for Mr. Navales to be present. March 24, 2009 · Mr.

Navales and the counsel appeared in court. Mr. Navales was released on a Form 12 Undertaking with no conditions and he elected trial in the Provincial Court. · Defence counsel advised “this is a straight Charter case ... this case was stayed as a result of a decision in Kang-Brown ... and I’m not getting into matters that are within their discretion ...

Kang-Brown is, in my view, the case which will govern the outcome, in which case it may be that depending on which Crown is assigned and whether or not they enter into ... into discussions with me, we may, quite frankly, just run this trial on the issue of s. 24(2), I don’t know. ...” At page 5, lines 25 - 38.

· The matter was adjourned to fix a date for trial. April 27, 2009 · A trial date was set for December 9 and 10, 2009. November 23, 2009 · Defence counsel filed a Notice of Re-election from Provincial Court Judge to Queen’s Bench Judge and Jury. December 4, 2009 · Roch Dupont, a prosecutor with the Public Prosecutions Service of Canada, was served with a defence subpoena to appear as a witness at the preliminary inquiry. After receiving the subpoena, another member of the office filed an application to quash the subpoena returnable December 8, 2009.

December 8, 2009 · Counsel for the Public Prosecutions Service of Canada and defence counsel appeared before the Court of Queen’s Bench. Written submissions were deemed to be appropriate on the quashing application; as a result, the motion was adjourned to December 17, 2009 in the Court of Queen’s Bench. December 9, 2009 · The preliminary inquiry began; Mr. Andrews and Ms. Molle were the defence counsel. At the conclusion of the day, the preliminary inquiry was adjourned to January 15, 2010 to set a continuation date dependant on the application to quash the subpoena.

December 17, 2009 · A Consent Order was granted quashing the subpoena for Mr. Dupont. January 15, 2010 · The preliminary inquiry was adjourned to February 5, 2010 for continuation. February 5, 2010 · The Crown advised the preliminary inquiry judge it would call no further evidence. The accused called no evidence and the accused was committed to stand trial in the Court of Queen’s Bench. His arraignment date was set for April 9, 2010. February 11, 2010 · The Crown sent a letter to Ms. Molle with a copy of the Indictment asking her to consider pre-booking the trial date.

The Crown included its time estimate for a judge and jury trial - 5 days - and Crown available dates: September 2010: 7-10, 13-17, 20-24, 27-30; October 2010: 1, 6-8, 12-14, 25-29; December 2010: 6-10, 14-17, 20-23; January 2011: 4-7, 10-14, 17-21, 24-28, 31 and February 2011: 1-4, 7-11, 14-18, 22-25. February 23, 2010 · Defence counsel pre-booked the trial date in the Court of Queen’s Bench for December 6, 2010 for 5 days. Legal Analysis

[ 3 ] The legal test to determine if delay has become unreasonable is set out in R. v . Morin , 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771. The factors identified by the court in a delay analysis are: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources; and 4. prejudice to the accused. [ 4 ] Sopinka J in Morin noted at p. 787: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. The length of the delay [ 5 ] This factor requires an examination of the time period from the date the Information was sworn until this trial date. This period of time runs from November 14, 2007 until December, 2010. I calculate this time period to be 37 months. Waiver of time periods [ 6 ] Morin at p.790 suggests “... it appears logical to deal with any allegation of waiver before embarking on the more detailed examination of the reasons for delay.

If by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted.” [ 7 ] A waiver must be clear and unequivocal and: ... with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights ... Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver set out above.

As Cory J. described it in Askov , supra , at p. 1228: ... there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(

b) guarantee, understood its nature and has waived the right provided by that guarantee. Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith , supra , which was adopted in Askov , supra , consent to a trial date can give rise to an inference of waiver. [ 8 ] Mr.

Navales submits he has not waived any time nor have his actions been responsible for any of the delay.

[ 9 ] The Crown submits 12 months of the total should be attributed to the actions of Mr. Navales. I will therefore consider whether any period of time has been waived by the accused. Any waiver here is an implicit waiver. [ 10 ] Two aspects of the strategy of the defence are relevant: 1. The defence re-election and 2.

The decision to subpoena the Crown who directed the Stay of Proceedings on October 24, 2008. [ 11 ] On November 23, 2009, two years after the accused was charged with this offence, and approximately two weeks before the scheduled trial date, defence counsel filed a Notice of Re-Election from Provincial Court Judge to Queen’s Bench Judge and Jury. While there is no explanation tendered for this change in strategy, none is required because the Criminal Code of Canada gives an accused this right. [ 12 ] As a result of this change in the defence strategy, the matter could not proceed to trial on December 9, 2009.

In addition, all counsel would have known that only a portion of the two days set for trial would be used for a preliminary inquiry. For example, counsel for Mr. Navales had clearly stated “this was a Charter case” when the December, 2009 trial date was set. As such, the Charter issues could not be argued at the Preliminary Inquiry. [ 13 ] Counsel advised during their submissions only two witnesses were called at the preliminary inquiry.

From my review of the table of contents of the preliminary inquiry transcript, the evidence was completed in the afternoon of December 9, 2009. [ 14 ] There is nothing before me to suggest Mr. Navales’ trial could not have been concluded on December 9 and 10, 2009 There is no suggestion the evidence could not have been called and arguments of counsel made by the end of the second day of trial, but for his re-election. Counsel knew the issue: the search of Mr. Navales and the finding of 10 kilogram sized bricks of cocaine occurred in much the same manner as in R. v.

Kang-Brown , 2008 SCC 18 , a case decided well before the trial scheduled for December 9 and 10, 2009. Indeed, counsel advised me the Sergeant MacPhee referred to in Kang-Brown is the same Sergeant MacPhee the Crown intends to call in this case. Thus, the issue was and continues to be whether Mr. Navales’ right to be secure against unreasonable search and seizure under s. 8 of the Charter was violated. Assuming a s. 8 breach had been found in December 2009, the Supreme Court of Canada had released its decision in R. v.

Grant , 2009 SCC 32 earlier that year; both Crown and defence knew the applicable test for the admission of evidence obtained as a result of a Charter breach. [ 15 ] The decision of the accused to change his election, two years post offence, is the sole reason the matter did not conclude in December 2009. Further, a judge and jury election by the accused, knowing the circumstances of the search and the necessity of a voir dire , means the trial itself will be longer than a judge alone trial.

This course of conduct is an implicit waiver of the time period which I find to be from December 20, 2009, the second day of the scheduled trial to this trial date. [ 16 ] The defence strategy of subpoenaing the Crown who stayed the charge in October 2008 some five days before the preliminary inquiry and then, consenting to the quashing of the subpoena also contributed to the delay since December, 2009. This action contributed to the delay for these reasons: 1.

The Crown filed an application to quash the subpoena upon being served with a subpoena and attempted to have its application heard the day before the preliminary inquiry was to begin. Not surprisingly, the judge who first heard the application, directed both parties to file written argument and ordered the matter go to December 17. An application of this sort is not a routine application. 2. The preliminary inquiry could not be concluded on December 9, 2009 because of this outstanding application.

3. The preliminary inquiry was adjourned to January 15, 2010 to fix the continuation date. 4. On December 17, both defence counsel and counsel for the Crown entered a Consent Order to quash the subpoena. It was only after this application had been decided, could the preliminary inquiry be scheduled for completion. As a result, it was concluded on February 5, 2010 as opposed to December 9, 2009. [ 17 ] Had the accused not issued a subpoena for the Crown, which counsel must have surmised would be contested by the Crown, the preliminary inquiry would have concluded on December 9.

In turn, the accused would have received the Crown’s available trial dates commencing, more likely than not, in the late spring. In addition, his counsel, more likely than not, would have also had earlier trial dates available for the trial. [ 18 ] If I have erred in my analysis of waiver, I find this time falls within the actions of the accused. Inherent Time Requirements [ 19 ] As the Court observed in Morin , ‘some delay is inevitable’.

The Court recognized there are inherent time requirements which are common to all cases such as retaining counsel, speaking to bail, police preparation of disclosure, Crown review of the file and providing disclosure, etc. The Court stated at p.792 “[a]ll of these activities may or may not be necessary in a particular case but each takes some amount of time”. This type of delay is characterized as neutral. [ 20 ] Both counsel submit the time period between November 14, 2007 – February 20, 2008 falls within delay attributable to intake requirements.

I agree and attribute three months to this period. [ 21 ] Morin also categorizes as an ‘inherent time requirement’, the time required by counsel to prepare for trial and the fact “...that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges.” at p.792. See also R. v. Godin , 2009 SCC 26 at para. 23 . While counsel did not speak to this particular time period, I assess this time period as a minimum of three months.

Actions of the Accused [ 22 ] Actions of the accused are voluntary actions taken by an accused which may have caused delay. As I observed above, if the defence strategy of the accused is not characterized as implicit waiver, the defence strategy falls within this category. [ 23 ] I also attribute the one month adjournment from March 24, to April 27, 2009 as an action by the accused that falls within this category.

On the materials before me, I cannot understand why defence counsel was unable to fix a date for trial on March 24, 2009 - which was the third trial date - as counsel had disclosure, knew the time estimate for trial, knew the issues, etc. Actions of the Crown [ 24 ] Like the above category, this factor “... serves as a means whereby actions of the Crown which delay the trial may be investigated.” Morin at p794. [ 25 ] The Crown’s request for an adjournment is an action that falls within this category.

As a result of the adjournment, the first trial date was adjourned for three and a half months. [ 26 ] I also attribute the time from the second trial date, May 19-20, 2009 to the trial date set after the proceedings were re- commenced – December 9, 2009, under this factor, less the one month I have attributed to the accused in paragraph 23. This is a period of six months.

Institutional Delay [ 27 ] The balance of the delay is institutional delay. This accounts for approximately nine and a half months. In Morin , the Court suggested a period of institutional delay of between eight to ten months as a guide to Provincial Courts, while acknowledging “[t]hese suggested time periods are intended for the guidance of trial courts generally.

These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances.”at p.799 [ 28 ] The institutional delay falls within the guide set out in Morin . Prejudice to the Accused [ 29 ] The Morin court addressed this issue at p.801, stating:

Section 11(

b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion. We have decided in several judgments, including the unanimous judgment in Smith , supra , that the right protected by s. 11 (

b) is not restricted to those who demonstrate that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. In the American concept of this principle, expounded in Barker v. Wingo , the inference is that no prejudice has been suffered by the accused unless he or she asserts the right. While the observation of Dubin C.J.O. in Bennett that many, perhaps most, accused are not anxious to have an early trial may no doubt be accurate, s. 11 (

b) was designed to protect the individual, whose rights are not to be determined on the basis of the desires or practices of the majority. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.

In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined. [ 30 ] The Court also acknowledged that action or non-action by an accused which is inconsistent with the desire for a timely trial is something a court must consider. Further, either party may rely on evidence to show prejudice or dispel such a finding. [ 31 ] In this case, Mr. Navales swore an affidavit.

In his affidavit, he attested to the facts: 1. he has been living with the stress of this offence for a long time; 2. he is embarrassed about the charge and is unable to discuss it with anyone, other than counsel; 3. the charge is always on his mind, including thoughts of jail; this is stressful and causes him anxiety and depression; 4. because he anticipates testifying at his trial, he is concerned how the passage of time will affect his memory and how that might impact on his defence. [ 32 ] In addition, counsel for Mr. Navales submitted that the delay has affected Mr.

Navales’ liberty interests because of his restrictive bail conditions. [ 33 ] Mr. Navales was under bail conditions, over and above the statutory condition of appearing in court when required, from November 20, 2007 to October 24, 2008. This is a period of 11 months. I have reviewed the bail conditions. While they provide some restrictions on Mr. Navales, for example, he had to obtain police approval prior to travel outside of British Columbia, I would not categorize them as “restrictive”. The balance of the time – some 26 months – Mr.

Navales has not been bound by any conditions other than the one statutory condition.

[ 34 ] I appreciate the worries and stresses this charge causes Mr. Navales. For some individuals, this is to be expected and normal. Having said that, Mr. Navales’ decision after receiving advice from experienced counsel, was to change his election. This action, in itself, is the cause of 12 months of delay. As a result, I am unable to find Mr. Navales has suffered any prejudice during this 12 month time period that is attributable to the Crown. [ 35 ] I acknowledge Mr. Navales has experienced prejudice as a result of the earlier delay.

However, I find the prejudice he has suffered is little more than the norm expected for some individuals charged with a criminal offence. [ 36 ] In sum, I find the 37 month time period between the Information being sworn and this trial to be characterized as follows: Intake – 3 months – neutral; Preparation – 3 months – neutral; Waiver by the accused – 12 months; Actions of the accused - 1 month or, if the 12 month time period was not waived, that period falls under this category; Actions of the Crown – 9½ months; Institutional delay – 9½ months.

Conclusion [ 37 ] McLaughlin J, as she then was, observed in her concurring reasons in Morin at p.810: The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

The factors to be considered include the length of the delay, any waiver by the accused of the delay, the reasons for the delay and prejudice to the accused. But simply listing factors does not resolve the dilemma of a trial judge faced with an application for a stay on grounds of delay. What is important is how those factors interact and what weight is to be accorded to each.

In this connection, we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay. [ 38 ] I have found Mr. Navales to be responsible for 13 months of the total delay. The actions of the Crown are attributable to 9½ months of the delay. Of the institutional delay, at least some of that time is “a reflection of the reality of the world in which the criminal justice system operates” as observed by Doherty, J.A. in R. v.

Allen (1996), 1996 CanLII 4011 (ON CA) , 110 C.C.C. (3d) 331 (Ont.C.A.), aff’d by 1997 CanLII 331 (SCC) , [1997] 3 S.C.R. 700 albeit, the remarks were made in the context of inherent time requirements. More particularly, Doherty, J.A. observed at p. 348 , “[t]he recognition and treatment of such inherent time requirements in the

section 11 (

b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases.” In my view, these comments are equally applicable to some period of institutional delay. [ 39 ] Taking all the factors into consideration and balancing the prejudice suffered by Mr.

Navales, society’s interest in a prompt trial and the interest of society in bringing the accused to trial, I am not satisfied the balance tips in favour of Mr. Navales. As a result, I dismiss the application.

Heard on the 7 th day of December, 2010. Given orally on the 17 th day of December, 2010. Dated at the City of Calgary, Alberta this 21 st day of December, 2010. E.A. Hughes J.C.Q.B.A. Appearances: Scott Couper Public Prosecution Service of Canada for the Crown Karen B. Molle Molle Roulston Chow for the Accused