R. v. Gamblin, 2012 ABQB 331

Court of Queen ’ s Bench of Alberta Citation: R. v. Gamblin, 2012 ABQB 331 Date: 20120518 Docket: 090782962Q1 Registry: Fort McMurray Between: Her Majesty the Queen Respondent - and - Grant Roger Gamblin Applicant Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Notice: The restriction ended September 17, 2012.

Corrected judgment: A corrigendum was issued on June 19, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.G. Nielsen

_______________________________________________________ I. Introduction [ 1 ] Grant Roger Gamblin has been charged with one count of dangerous driving causing death and three counts of dangerous driving causing bodily harm arising out of a motor vehicle accident which occurred on January 7, 2008, near Conklin, Alberta. Mr. Gamblin was the driver of one of two vehicles involved in the accident. [ 2 ] Mr. Gamblin has filed an application alleging that his rights pursuant to ss. 7, 11(

b) and 11(

d) of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 have been infringed and seeks a stay of proceedings pursuant to s. 24(1) of the Charter . II. Background [ 3 ] A voir dire with respect to Mr. Gamblin ’ s Charter application was conducted on April 10, 2012. Affidavits were filed. They were sworn by an associate in the office of defence counsel for Mr. Gamblin, a paralegal with the Crown Prosecutor ’ s Office in Fort McMurray, Alberta and Mr. Gamblin. In addition, Constable Parsons, Constable Noskey, Corporal Gibbs of the RCMP and Mr.

Gamblin all testified at the voir dire . [ 4 ] The following is a timeline of the events relevant to this application: • On January 7, 2008, the motor vehicle accident occurred near Conklin, Alberta; a number of handwritten statements from witnesses were taken at the accident scene; • On January 7 and 8, 2008, Corporal Gibbs conducted an accident scene analysis and examined the vehicles involved in the accident; • On January 11, 2008, Constable Noskey and Corporal Gibbs attended at the Crown Prosecutor ’ s Office in Fort McMurray, Alberta and obtained advice that a charge of one count of criminal negligence causing death and five counts of criminal negligence causing bodily harm ought to be laid; • On January 31, 2008, Mr.

Gamblin attended at the RCMP detachment in Lac La Biche, Alberta to complete a collision report. Initially on that day, Mr. Gamblin was charged with criminal negligence causing death and criminal negligence causing bodily harm, but was advised later that day that he would not be formally charged at that time; • On April 27, 2009, Constable Parsons swore an Affidavit in support of a production order for medical records of two passengers in the other vehicle involved in the accident; • On June 29, 2009, an Information was sworn charging Mr.

Gamblin with one count of dangerous driving causing death and five counts of dangerous driving causing bodily harm; • On August 22, 2009, Mr. Gamblin was arrested on a warrant in respect of the six count Information and was then released on bail with a first appearance date of September 2, 2009;

• On September 2, 2009, Mr. Gamblin appeared in Provincial Court in Fort McMurray, Alberta without counsel at which time the matter was adjourned to September 30, 2009; • On September 30, 2009, Leon Colwin appeared as counsel of record for Mr. Gamblin and asked that the matter be put over to October 21, 2009 in order for him to obtain disclosure and to obtain instructions from his client; • On October 21, 2009, Mr. Gamblin reserved his plea and Mr. Colwin requested the matter be adjourned for one month; • On November 18, 2009, a not guilty plea was entered and Mr.

Colwin indicated the defence election was for a trial by Queen ’ s Bench judge alone and the matter was put over to December 2, 2009, to allow time for Mr.

Colwin to file a necessary form; • On December 2, 2009, the necessary form had still not been filed and the matter was put over to December 16, 2009; • On December 16, 2009, the necessary form was filed and the matter was put over to December 23, 2009, to confirm the dates for the preliminary inquiry to be heard; • On December 23, 2009, the preliminary inquiry was set to proceed on September 13 to 17, 2010; • On July 30, 2010, an email was sent from the Crown Prosecutor ’ s Office to the RCMP seeking further witness statements from five witnesses; • On August 9, 2010, one of the witnesses, Jason Klein, provided an audio video statement; • On August 11, 2010, one of the witnesses, Zachary Owen, provided an audio video statement; • On August 26, 2010, Constable Parsons learned that Mr.

Colwin was counsel for Mr. Gamblin and advised the then current Chief Crown Prosecutor that he may have had some conversations about the case with Mr. Colwin when Mr. Colwin was a Crown Prosecutor in Fort McMurray, Alberta; • On September 8, 2010, the matter was brought forward from the preliminary inquiry date, at the request of the Crown Prosecutor, to address the issue of the unavailability of Corporal Gibbs, the collision reconstruction expert, due to surgery and a Crown application for a ruling as to whether Mr.

Colwin should be removed as counsel of record given that he was a Crown Prosecutor in Fort McMurray, Alberta during some of the time period that the charges were pending and at the time the charges were laid; • On September 9, 2010, Mr. Colwin agreed that he may be in a conflict of interest position and his application to be removed as counsel of record for Mr. Gamblin was granted and the preliminary inquiry set for September 13 to 17, 2010, was adjourned; • On September 29, 2010, Mr. Gamblin had Mr.

Colwin appear as his agent to put the matter over for him to seek and obtain new counsel; • On October 13, 2010, Lauren Garcia was appointed as counsel for Mr. Gamblin and a designation of counsel was filed on October 20, 2010;

• On October 26, 2010, the Crown Prosecutor’s Office received a request from Ms. Garcia for disclosure and between that date andNovember 6, 2010, the Crown Prosecutor’s Office sought to have Mr. Colwin provide the disclosure which he had received to Ms.Garcia and ultimately provided further disclosure to Ms. Garcia; • On November 17, 2010, the preliminary inquiry was set for August 29 and 30, 2011; • On August 29 and 30, 2011, the preliminary inquiry proceeded following which Mr.

Gamblin was ordered to stand trial in theCourt of Queen’s Bench on one count of dangerous driving causing death and three counts of dangerous driving causing bodily harm; • On September 20, 2011, the Indictment was filed at which time a request was made for a two to three day voir dire and a five dayjudge alone trial; • On December 12, 2011, the voir dire was set to be heard on April 10 to 12, 2012, and the trial was set to be heard on October 1 to4, 2012. [28] Constable Parsons testified that he was the lead investigator on this file. He believed from January 2008 that charges wouldbe laid against Mr. Gamblin.

Constable Parsons, however, did not wish to lay charges until such time as he was in a position to providedisclosure to Mr. Gamblin. Constable Parsons did have discussions with respect to this matter with Mr. Colwin at the time he was aCrown Prosecutor. The conversations were in passing, most likely at the courthouse in Fort McMurray, Alberta. He made no record ofany such conversations. [29] Corporal Gibbs could not recall if he had completed a report in this matter. He had been off work with health issues sinceSeptember 2010 and had returned to work on a part-time basis only shortly before the voir dire.

He was not aware if he would be calledto testify at the trial. [30] Constable Noskey was the senior supervisor on the file for a brief period of time in January 2008. It was clear to her thatcharges would be laid against Mr. Gamblin arising out of the accident. [31] Mr. Gamblin testified that he had been in court on probably four occasions since the outset of this matter. Upon arrest on thecharges, he was released on no cash bail with the only condition being that he keep the peace. He stated that he has experienced stressover the whole of this matter.

Some of that stress is due to having been involved in the accident itself. However, some of the stress is as aresult of the matter “hanging over his head”. While he has been able to work, he has not been able to get on with a career. He does notknow if he is going to jail in relation to this matter. III. Issues 1. Has there been a breach of Mr. Gamblin’s rights to life, liberty and security of the person, to be tried within a reasonable time andto a fair trial pursuant to ss. 7, 11(

b) and 11(

d) of the Charter? 2. If so, should a stay of proceedings be granted pursuant to s. 24(1) of the Charter? IV. Law [32] The crux of Mr. Gamblin’s argument is that the delay in bringing this matter to trial has breached his Charter rights. In R vAskov, (SCC), [1990] 2 SCR 1199, 1990 CarswellOnt 111 at paras 102 to 111, Cory J., for the majority, identified thefollowing factors as being pertinent on a s. 11(

b) application:

(

i) the longer the delay, the more difficult it should be for a court to excuse it; very lengthy delays may be such that they cannot bejustified for any reason; (ii) explanation for the delay; (

a) delays attributable to the Crown weigh in favour of the accused; complex cases will justify relatively longer delays; (

b) systemic or institutional delays occasioned by inadequate resources weigh against the Crown; institutional delaysshould be considered comparatively; the Crown always has the burden of justifying inadequate resources resulting in systemic delays; (

c) delays attributable to the accused, such as a request for adjournment or delays to retain different counsel willjustify delays; (iii) the accused may waive his rights by consenting to or concurring in a delay, for example by consenting to a fixed date for trial, butsuch waiver must be informed, unequivocal and freely given, and Crown bears the burden of establishing this; (iv) there is a general, and in the case of very long delays an often virtually irrebuttable, presumption of prejudice to the accusedresulting from the passage of time; where Crown can demonstrate no prejudice, such proof may serve to excuse the delay; the accusedmay call evidence to demonstrate actual prejudice to strengthen his position. [33] In the circumstances of that case, Cory J. indicated that a range of six to eight months between committal and trial would beconsidered reasonable.

However, at para 93 Cory J. stated that the question “how long is too long?” must be answered in light of theparticular facts of each case and no standard of fixed time is applicable in every region of the country. Consideration must be given to thegeography, the population and the material resources of the province and district compared with other better jurisdictions. [34] In R v Morin, (SCC), [1992] 1 SCR 771, 1992 CarswellOnt 75 the Supreme Court of Canada considered thematter again. Sopinka J. emphasized that a s. 11(

b) analysis does not involve the application of a mathematical or administrative formula,but rather judicious balancing of the interests which the

section is designed to protect against factors which either inevitably lead to delayor are otherwise the cause of delay. The period to be scrutinized is the time elapsed from the date of the charge to the end of the trial.Sopinka J. summarized the factors to be considered as follows: 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 (

e) other reasons for delay; and 4. prejudice to the accused. [35] Sopinka J. held at para 38 that a longer time must be allowed for cases that proceed through a preliminary inquiry. Such

cases involve additional inherent delays such as further pre-trial meetings and added court dates. An additional period must be allowedfor inherent time at the second stage. This period will be shorter than the one-stage trial delay because many of the intake procedureswill not have to be duplicated.

In addition to the time after committal for trial of six to eight months as suggested in Askov, he suggestedan additional period of eight to ten months for those matters proceeding through a preliminary inquiry. [36] Sopinka J. emphasized at para 33 that a waiver by the accused must be clear and unequivocal, with full knowledge of therights the procedure was enacted to protect and of the effect that waiver will have on those rights. If the alleged waiver is implicit, theconduct of the accused must be sufficient to give rise to an inference that the accused was aware of the s. 11(

b) right and its nature andwaived that right. If the accused or defence counsel did not turn their minds to the issue of waiver, the conduct in question may be takeninto account under the factor "actions of the accused" but it is not waiver.

For example, consent to a trial date can give rise to aninference of waiver, but not if consent to a date amounts to mere acquiescence in the inevitable. [37] McLachlin J. (as she then was), in reasons concurring with the majority, indicated at para 86 that the first step in the analysisis to determine whether a prima facie or threshold case for unreasonable delay is made out.

Once the reasons for delay have beendetermined, the court must weigh the accused’s right to be tried within a reasonable time against society’s interest in bringing an accusedto trial. [38] Cromwell J. for the Supreme Court recently considered s. 11(

b) again in R v Godin, 2009 SCC 26 , [2009] 2 SCR 3,2009 CarswellOnt 3100. He affirmed the guidelines as set out in Morin but explained: 5 ...Those guidelines refer to periods of 8 to 10 months for institutional delay in the provincial courts and of 6 to 8 months fromcommittal to trial, for a total guideline period of between 14 and 18 months. It is clear that these guidelines were substantially exceededin this case. That, on its own, does not make the delay unreasonable.

The difficulty in this case, in my view, arises from the considerabledelay coupled with three additional facts: (1) the case is a straightforward one with few complexities and requiring very modest amountsof court time; (2) virtually all of the delay is attributable to the Crown and is unexplained, let alone justified; and (3) defence counselattempted, unsuccessfully, to move the case ahead faster. [39] Mr. Gamblin relies in part on the pre-charge delay in this case. The Supreme Court of Canada clearly indicated in the casescited above that s. 11(

b) concerns the period from the charge to the end of trial. In R v Kalanj, (SCC), [1981] 1 SCR1594, 1989 CarswellBC 629 the Court indicated that while s. 11(

b) is concerned with post-charge delay, the pre-charge period mayimpact on the rights of an accused protected by the general law and guaranteed by ss. 7, 8, 9, and 10 of the Charter. [40] In R v L(WK), (SCC), [1991] 1 SCR 1091, 1991 CarswellBC 806 the Court stated: 24 Sections 7 and 11(

d) of the Charter protect, among other things, an individual's right to a fair trial. The fairness of a trial is not,however, automatically undermined by even a lengthy pre-charge delay. Indeed, a delay may operate to the advantage of the accused,since Crown witnesses may forget or disappear. The comments of Lamer J., as he then was, in Mills v. The Queen, supra, at p. 945, areapposite: Pre-charge delay is relevant under ss. 7 and 11(

d) because it is not the length of the delay which matters but rather the effect of thatdelay upon the fairness of the trial. [Emphasis added.] Courts cannot, therefore, assess the fairness of a particular trial without considering the particular circumstances of the case. Anaccused's rights are not infringed solely because a lengthy delay is apparent on the face of the indictment. [41] The Court in Morin confirmed this approach: 30 ...Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay isunreasonable but of itself it is not counted in determining the length of the delay.

[42] Accordingly, I will consider pre-charge delay when I consider the matter of prejudice. V. Analysis Reasons for Delay [43] The period from swearing the information to the trial is 39 months. This is clearly outside of the norm of some 14 to 18 months for those cases involving a preliminary inquiry. The Crown concedes that a prima facie case has been made out for unreasonable delay and, therefore, this case merits an inquiry. [44] The Court ’ s task is to expressly identify the causes for significant delays over the chronology of the case. January 31, 2008 - June 29, 2009 [45] Mr.

Gamblin was apprised on January 31, 2008 that he would be formally charged with criminal negligence causing death and criminal negligence causing bodily harm at a later date. The information was sworn on June 29, 2009. Many individuals who are ultimately charged with a crime are aware of this fact prior to a formal charge being laid. Until that point, the Crown retains discretion as to whether, and how, to proceed. In my view, despite Mr. Gamblin ’ s awareness early on that he would very likely be formally charged at some point, the starting point for the purposes of the Askov analysis is June 29, 2009.

June 29, 2009 - August 26, 2010 [46] Mr. Gamblin was arrested on August 22, 2009 and released on bail with a first appearance date of September 2, 2009. Adjournments were granted so that Mr. Gamblin could retain counsel, and counsel could obtain disclosure and instructions. A further one month adjournment was granted at the request of defence counsel. On November 18, 2009, Mr.

Gamblin pled not guilty and elected a judge alone trial, and the matter was put over until December 16, 2009, when a necessary form was filed by defence counsel and the matter was put over to December 23, 2009, to confirm preliminary inquiry dates. On December 23, 2009, the preliminary inquiry was set to proceed on September 13 to 17, 2010. [47] The Crown argues that the time attributable to Mr. Gamblin ’ s decision to pursue the preliminary inquiry process must be considered as a waiver by Mr. Gamblin. [48] I do not accept this submission by the Crown. Mr. Gamblin has a right to pursue a preliminary inquiry.

This process has built into it an inherent delay as it is necessary to book time with two levels of Court. It is for this reason that the guidelines as outlined above are extended by eight to ten months. [49] On the voir dire , I was advised that specific waivers by Mr. Colwin while he was taking steps to familiarize himself with the file, completing certain forms and determining the acceptability of dates for the first scheduled preliminary inquiry, amounted to three months. Mr.

Gamblin takes no issue with this assessment. [50] I find that the period of delay to December 23, 2009 is due to the inherent time requirements of the case and various actions of the accused, three months of which were waived. [51] The delay from December 23, 2009 to September 2010 is institutional. Mr. Gamblin argues that this delay was unacceptable as it exceeds the guidelines. I will deal with this argument below.

August 26, 2010 - August 29, 2011 [52] On August 26, 2010, Constable Parsons learned that Mr. Colwin was defence counsel and advised the Crown that he mayhave discussed the case with Mr. Colwin when he was a prosecutor. On September 8, 2010, two issues were addressed: 1) theunavailability of Corporal Gibbs, the collision reconstruction expert, due to surgery, and 2) whether Mr. Colwin should be removed ascounsel of record due to a conflict of interest. [53] As mentioned above, Corporal Gibbs could not recall if he had completed a report in this matter.

He had been off work withhealth issues since September 2010 and had returned to work on a part-time basis only shortly before this voir dire. He was not aware ifhe would be called to testify at the trial. [54] The Ontario Court of Appeal in R v AJW, 2009 ONCA 661 at para 35 dealt with the issue of delay arising from illness of awitness: 35 Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case. As Hill J. said in R.v. Hoffner, [2005] O.J. No. 3862, (Ont.

S.C.), at para. 41: “Such a contingency, while unfortunate and unexpected,is nevertheless an inherent feature of the litigation process. In turn, therefore, reasonable delay to a new trial date is prima facieconsidered neutral.” Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral. If the time to thenext trial date is itself unreasonable, some portion of the delay is properly considered institutional delay. [55] A similar conclusion was reached by Williams, J. of the British Columbia Supreme Court in R v Haglof, 2002 BCSC 449. [56] I agree with this reasoning.

Illness of a witness is a fact of life. An adjournment would be granted in a criminal case not onlyif an important Crown witness becomes ill, but also if the accused or an important defence witness becomes ill.

Such adjournments areinherent in the process and, in my view, barring exceptional circumstances neither party should bear responsibility for the resultingdelay. [57] To the extent that any delay is due to Corporal Gibbs’ inability to attend the first preliminary inquiry, that delay is inherenttime and, therefore, neutral. [58] However, this issue obviously became academic given that defence counsel sought, and was granted, leave to withdraw fromthe file shortly prior to the time the preliminary inquiry was first scheduled to proceed. [59] On September 9, 2010, Mr.

Colwin agreed that he may be in a conflict of interest, he was removed as counsel of record, andthe preliminary inquiry was adjourned. Mr. Colwin appeared as agent for Mr. Gamblin on September 29, 2010 to put the matter over forhim to obtain new counsel. A new designation of counsel was filed on October 20, 2010. On October 26, 2010, the Crown Prosecutor’sOffice received a request from Ms. Garcia for disclosure. The Crown Prosecutor’s Office sought to have Mr. Colwin provide thedisclosure which he had received to Ms.

Garcia and she ultimately received disclosure from the Crown Prosecutor’s Office on November6, 2010. On November 17, 2010, the preliminary inquiry was set for August 29 and 30, 2011. [60] Each party argues that the other should have identified Mr. Colwin’s potential conflict of interest and should bearresponsibility for the ensuing delay. [61] There may be a change in counsel during proceedings for various reasons, including conflicts raised by the Crown or defencecounsel, or findings made by the Court.

Characterization and attribution of the ensuing period of delay depends largely on the particularfacts of the case. The delay may be characterized as neutral or part of the inherent time requirements of the case where the underlyingissue inevitably had to be resolved and no unreasonable actions were taken by either side. Alternatively, it may be attributed to theCrown or defence counsel, depending on their respective knowledge of the potential conflict, and steps taken, or not taken, in that regard.Both parties must be vigilant in avoiding conflict issues: R v Caines, 2011 ABQB 82.

[62] While a complete timeline was not provided to me as to when Mr. Colwin was employed in the Crown Prosecutor ’ s Office, it is clear that he was so employed for at least a portion of the time that this matter was under investigation by the RCMP. For part of that time he was the Chief Crown Prosecutor in Fort McMurray, Alberta. In the proceedings in the Provincial Court at which time his withdrawal from the file was considered, Mr. Colwin made it clear that he had no specific recollection of having discussions with members of the RCMP with respect to this matter.

The Crown took the position that even if there was not an actual conflict, there may nevertheless be an appearance of conflict. [63] Based on the testimony of Constable Parsons on the voir dire it is clear that he did have discussions with Mr. Colwin with respect to this matter. These conversations appear to have been somewhat casual and Constable Parsons made no note of same on his file. Further, from the Affidavit of the paralegal in the Crown Prosecutor ’ s Office it is clear that the Crown file did not contain any notes of discussions with or correspondence to or from Mr. Colwin.

It was only in late August 2010, when Constable Parsons was preparing to testify at the preliminary inquiry that he learned that Mr. Colwin was defence counsel. [64] The evidence established that any communications between Constable Parsons and Mr. Colwin were conversations in passing. As a relatively inexperienced police officer, Constable Parsons was trying to obtain assistance and guidance as to how to proceed. It appears that at the time he had these casual discussions with Mr. Colwin, this may have been somewhat of a regular practice between the RCMP and the Crown in Fort McMurray, Alberta.

Between the time the Information was sworn and preparation for the preliminary inquiry, there is no evidence to suggest that Constable Parsons had any other involvement in the file which could reasonably be expected to have triggered his memory as to discussions he may have had with Mr. Colwin. Further, Mr. Colwin had not made any notes on the Crown file and therefore the prosecutor taking over the prosecution of this matter would not have been alerted to the fact that Mr. Colwin may have had some involvement in the file. [65] It is clear that Mr.

Colwin had no recollection of any involvement in this file until the matter was brought to his attention shortly prior to the time that the preliminary inquiry was first scheduled to proceed. It is not unexpected that Mr. Colwin may not have a specific recollection of a file with respect to which he had casual conversations with members of the RCMP over the course of his time in the Crown Prosecutor ’ s Office. [66] Further, Mr. Colwin had a right to leave the Crown Prosecutor ’ s Office and to pursue a career as defence counsel. In my view, it would be inappropriate to impose a blanket prohibition against Mr.

Colwin acting in the defence of any matters in respect of which the Crown Prosecutor ’ s Office may have had a file or some involvement during the time that Mr. Colwin was employed at the Crown Prosecutor ’ s Office. Such a prohibition could well prevent former prosecutors from earning a livelihood in their chosen career in the location where they choose to practice. In my view, the conflict of interest rules are narrower than this and require that Mr.

Colwin not be involved in defending individuals on matters in respect of which he may have had some involvement while employed at the Crown Prosecutors ’ Office. [67] As stated, both the Crown and defence counsel have an obligation to be vigilant in avoiding conflicts of interests. For the reasons outlined, neither the Crown nor Mr. Colwin identified the potential conflict of interest.

In the circumstances of this case, I find that neither the Crown Prosecutor ’ s Office nor defence counsel breached their respective obligations. [68] Therefore, the delay which arose as a result of the need to reschedule the preliminary inquiry is not attributable to the Crown or Mr. Gamblin on this basis. [69] The delay from early September 2010 to late August 2011 for the rescheduled preliminary inquiry represents a duplication of the types of activities which took place in the prior period.

The delay to scheduling on November 17, 2010 is inherent. [70] The period from November 17, 2010 to August 29, 2011 is institutional. Again, Mr. Gamblin argues that this delay is unacceptable as it exceeds the guidelines. I will address this below. August 29 , 2011 - October 4, 2012

[71] The preliminary inquiry proceeded as scheduled and Mr. Gamblin was ordered to stand trial. On September 20, 2011, the Indictment was filed at which time a request was made for a two to three day voir dire and a five day judge alone trial. On December 12, 2011, this s. 11(

b) voir dire was set to be heard from April 10 to 12, 2012, and the trial was set to be heard from October 1 to 4, 2012. [72] As mentioned above, Mr. Gamblin argues that the institutional delay in the time to set the preliminary inquiry on the two separate occasions and from committal to trial exceeds the Supreme Court ’ s guidelines. [73] The institutional delay relating to the initial scheduling of the preliminary inquiry date ran from December 23, 2009 to mid- September 2010, or 8 ½ months.

The delay from November 17, 2010 to August 30, 2011 in relation to the second scheduling of the preliminary inquiry date is 9 ½ months. The time from committal to trial, September 20, 2011 to October 4, 2012, amounts to 12 ½ months. [74] The Supreme Court suggested a period of up to 18 months for a case involving a preliminary inquiry. I have held that the change of counsel is not attributable to either party. But for the change in counsel, the system could have accommodated the entire matter within approximately 21 months.

This exceeds the suggested 18 months by three months. [75] In considering whether this constitutes a breach of s. 11(b), I take into consideration the fact that the trial date was set by agreement. Further, the Court was asked to accommodate not only a five day trial, but also a two to three day voir dire in advance of trial. The evidence before me is that Mr. Gamblin accepted the voir dire and trial dates without objection or complaint. There is no evidence to suggest that Mr. Gamblin sought earlier dates.

As noted above, the Supreme Court has held that consent to a trial date can give rise to an inference of waiver, but not if consent to a date amounts to mere acquiescence in the inevitable.

As for regional variance, I was advised in the voir dire that the period of time to trial was typical for Queen ’ s Bench trials in Fort McMurray, Alberta. [76] Taking into account all of the circumstances of the case, while the guidelines are exceeded somewhat in my view such delay, in and of itself, is not excessive. [77] Having examined the discrete periods in question, the Court must assess the ultimate question, which is the reasonableness of the overall length of time taken to bring Mr. Gamblin to trial.

In order to properly assess overall delay, I must weigh the causes of the delay, the prejudice, and the interests at stake. Prejudice [78] Mr. Gamblin argues that he has been prejudiced because he has had this matter “ hanging over his head ” for over four years. Mr. Gamblin gave evidence with respect to this issue. He stated that he has experienced stress over the whole of this matter. Some of the stress is as a result of the matter “ hanging over his head ” . While he has been able to work, he has not been able to get on with a career.

He does not know if he is going to jail in relation to this matter. [79] Clearly, this must be a stressful situation for Mr. Gamblin. He did, however, frankly acknowledge on cross-examination that some of that stress was due to the fact that he had been involved in a very serious accident. Mr. Gamblin did suffer serious injuries in the accident. Further, upon arrest on the charges, he was released on no cash bail. He was not subject to any onerous conditions on his release. In fact, the only condition was to keep the peace. Mr.

Gamblin acknowledged on cross-examination that while he had not been able to “ get on with a career ” he had not been stopped from finding work. He also acknowledged that over the time that the charges were outstanding against him, he had only appeared in court personally on probably four occasions. [80] In my view, Mr. Gamblin has not raised any actual prejudice beyond that which naturally arises by virtue of being charged with an offence. [81] Mr. Gamblin also argues that he cannot have a fair trial as some of the evidence against him has been compromised by the passage of time.

[82] Pre-charge delay is relevant regarding the effect of the overall delay upon the fairness of the trial. The evidence establishes that Constable Noskey was the senior supervisor on the file for a brief period of time in January 2008, and it was clear to her that charges would be laid against Mr. Gamblin arising out of the accident. [83] Mr. Gamblin argues that the 18-month pre-charge delay was unnecessary given that the lead investigator and his supervisor both anticipated very shortly after the accident that charges would be laid against him.

He submits that the delay appears to be due to Constable Parsons ’ inexperience and workload. [84] Mr. Gamblin argues that the evidence of both Corporal Gibbs and a witness, Jason Klein, have been compromised. [85] With respect to Corporal Gibbs it is argued that if the matter had proceeded more expeditiously from the date of the accident, Corporal Gibbs ’ evidence may have been available for the trial of this matter as he may have been well enough to testify. [86] In my view, this position is speculative only. Mr.

Gamblin did not suggest what a reasonable period of pre-charge delay might have been in this matter. Presumably, Mr. Gamblin would not have had a basis for complaint if the investigation had taken up to six months to conclude and charges had been laid in June 2008 rather than June 2009. If this timeline were used for the laying of charges and if no time had been lost due to Mr.

Colwin ’ s involvement in this matter then, using the other timelines identified herein, the preliminary inquiry would have been set in December 2008, the preliminary inquiry would have been held in September of 2009 and the trial would have proceeded in October 2010. According to this timeline, Corporal Gibbs ’ evidence would not have been available for trial as he was off work due to his illness by September 2010. It is not at all clear if Corporal Gibbs will testify at the trial in this matter.

However, his evidence which otherwise might not have been available for an earlier trial would appear to now be available if either the Crown or Mr. Gamblin choose to call him. [87] Dealing with the evidence of Mr. Klein, it appears from the evidence in the voir dire that his evidence has changed from his original handwritten statement on January 7, 2008, to the audio video statement provided to the RCMP on August 9, 2010, and his testimony at the preliminary inquiry on August 29, 2011. [88] It is significant that there are variances in Mr.

Klein ’ s evidence within the general time suggested as a guideline by the Supreme Court. That is, the evidence in Mr. Klein ’ s handwritten statement is different from the evidence in his videotaped statement. Therefore, even if this matter had proceeded within those parameters, there would still have been an issue with Mr. Klein ’ s evidence. [89] More significant, however, is the fact that Mr. Klein ’ s recollection was recorded at these various points in time. There is always a risk that witnesses will provide testimony which may be at odds with earlier testimony or statements given.

Generally, a statement given by a witness contemporaneously with an event will be given significant weight by the trier of fact. Further, a witness who has given multiple statements or testified previously is subject to cross-examination on any variations in his or her evidence. This eventuality occurs whether the testimony is given relatively soon after an event or some significant time later. The fact that there exists a contemporaneous record of a witness ’ observations reduces the danger of irremediable prejudice to an accused. Issues of weight can be addressed at trial.

In any event, at this point it is speculative that any problems with Mr. Klein ’ s evidence will prejudice Mr. Gamblin at trial. Such problems may, in fact, work to his advantage. [90] In the circumstances before me, I find that to the extent that there are evidentiary difficulties or complexities in this case, they likely would have arisen had the matter proceeded in a more timely fashion, and it is speculative that they will result in prejudice to Mr. Gamblin.

Interests at Stake [91] The right of the accused to a trial within a reasonable time must be weighed against the conflicting interest of society in bringing a person charged with a criminal offence to trial. McLachlin J. in Morin outlined the balancing which must be undertaken as follows:

86 . . . The interest of society in bringing those charged with criminal offences to trial is of constant importance. The interest of the accused, on the other hand (and the correlative negative impact of delay on the administration of justice) varies with the circumstances. It is usually measured by the fourth factor - prejudice to the accused's interests in security and a fair trial. It is the minimization of this prejudice which has been held to be the main purpose of the right under s. 11(

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time: [citation omitted]. [92] Our Court of Appeal in R v Sapara , 2001 ABCA 59 , 277 AR 357 at paras 13-14 , leave denied [2001] SCCA No 237, described the balancing which must be undertaken and at para 72 stated: 72 In deciding whether an accused ’ s right to trial within a reasonable time has been violated, a court must consider the interests which were intended to be protected by s. 11(

b) of the Charter . This involves consideration of the seriousness of the charge, the right of the accused to a fair trial and to security of the person and societal concerns. [93] The Court in Sapara noted at para 14 that, generally, as the relative seriousness of the offence increases so too will the societal interest in bringing the accused to trial. [94] The charges which Mr. Gamblin faces are serious.

One man died and at least three others were injured in the accident. [95] While it is true that prejudice can be inferred in this case from the delay, that delay, in my view, is not unreasonable in all of the circumstances of this case so as to amount to a breach of Mr. Gamblin ’ s Charter rights. Mr. Gamblin ’ s right to be tried within a reasonable time does not outweigh the societal interest in having Mr. Gamblin brought to trial on these charges. VI. Conclusion [96] Mr. Gamblin ’ s rights to life, liberty and security of the person, trial within a reasonable time, or to a fair trial pursuant to ss. 7 , 11(

b) and 11(

d) of the Charter have not been breached in this case. [97] Mr. Gamblin ’ s application to have the charges against him stayed pursuant to s. 24(1) of the Charter is dismissed. Heard on the 10 th day of April, 2012. Dated at Edmonton, Alberta this 18 th day of May, 2012. K.G. Nielsen J.C.Q.B.A. Appearances:

Steven Hinkley Crown Prosecutor ’ s Office for the Crown Lauren Garcia Dawson Stevens & Shaigec for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice K.G. Nielsen _______________________________________________________ A publication ban in respect to the preliminary inquiry has been added to this judgment.