R v Stevenson, 2012 ABQB 603

Court of Queen ’ s Bench of Alberta Citation: R v Stevenson, 2012 ABQB 603 Date: 20121002 Docket: 110825825S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Whitney Amanda Stevenson Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] On April 18, 2012, Judge L. J. Burgess of the Provincial Court stayed two charges against Whitney Stevenson because he found that her Charter guaranteed right to be tried within a reasonable time had been breached.

The Crown appeals. [ 2 ] On July 21, 2011, Whitney Stevenson was charged with driving with more than 80 milligrams of alcohol in 100 millilitres of her blood and with impaired driving. The offences were alleged to have occurred 10 days earlier on July 11, 2011. The history of the proceedings consists of the following events: 1. August 14, 2011 Ms. Stevenson appeared with counsel and reserved her plea. The matter was adjourned to September 14, 2011.

2. September 14, 2011 Ms. Stevenson pled not guilty. The matter was set for a 120 minutes trial on September 6, 2012 - a year later. 3. February 22, 2012 Ms. Stevenson ’ s counsel brought the matter into Court to

schedule a Charter s. 11(

b) application. The application was set for April 18, 2012. 4. April 18, 2012 The s. 11(

b) application was heard and a judicial stay was ordered. [ 3 ] Judge Burgess found that the 7 weeks between the swearing of the information and the setting of the trial date was inherent in the system and not unreasonable. He found, however, that the delay of just short of a year to the September 2012 trial date was unreasonable. He found that the reason for that delay was the scarcity of judicial and institutional resources in Sherwood Park. [ 4 ] In that regard Judge Burgess said in his oral decision: We have here in Strathcona County a significant population. We have significant economic activity.

We have promises of new facilities which have been ongoing for many years. That ’ s well known. We have what is certainly for a community this size, easily the worst courthouse in the province. And I say that with all due respect. It appears that the priorities have been placed elsewhere. . . . There is a persuasive argument that inadequate judicial resources have been allocated to this particular region. In that I am talking about the plant facilities, that is, the courthouse; the availability of judges; the availability of court staff. . . .

Just by way of commentary, the new courthouse proposed for Strathcona County for several years, and I am trying to remember the number of courtrooms, I think they were talking about 10 or 12 courtrooms to replace this existing building. We have two courtrooms here, the second of which is rarely used. . . . The only explanation that appears reasonable to me given all the circumstances I ’ ve heard is that there have been inadequate resources provided for the administration of justice in this region. The court cases out of Ontario talk about similar types of judicial resources. They talk about the lack of judges.

I know that ’ s the case here . . . I know that . . . there are difficulties setting special sittings because the lack of court clerks. There are [at] times shortages of courtroom space. . . .[W]e certainly are not qualified to say with any degree of certainty what the priorities of the Provincial Government should be in respect to the allocation of resources for the various responsibilities the government has. . . .

But I do have to acknowledge that there appears to be a problem with the adequacy of the resources that are allocated to the things that I deal with on a daily basis. [ 5 ] Judge Burgess accepted the representation of counsel for the accused that he had had available dates much earlier than those that were set. He concluded that the date chosen for trial was set because it was the first available date in the Court ’ s calendar at the time it was set.

He rejected the Crown submission that the failure of the accused to object to the delay when the date was set, though not waiver, was acquiescence of a nature that rendered the delay not unreasonable. He rejected the Crown submission that the accused ought to have complained about the date set and made the s. 11(

b) application earlier. [ 6 ] Judge Burgess also noted that the accused had reasonably declined a Crown proposal, made when the date for the s. 11(

b) application was set, that the time be used for the trial instead. The accused was writing a college exam on the day the application was heard. [ 7 ] Counsel for the accused noted in his submissions that there were, as at the date of the application, many dates prior to the then set trial date when he was available. He assumed those dates had been canvassed when the September 2012 trial date was set and that it had been determined that the Court could not accommodate a trial on those dates. This assumption was not contradicted or otherwise tested.

[ 8 ] Judge Burgess accepted that the accused had suffered a form of prejudice in addition to the inherent prejudice suffered by an accused who must wait a long time for trial. The accused had planned to apply to attend university in the U.S.A. beginning in the fall of 2012. She could not make that application without knowing the outcome of her trial because if convicted her ability to cross the border would likely be affected. Her university plans were therefore put somewhat on hold.

Judge Burgess noted that while this prejudice might not be of great weight, it should be taken into consideration. [ 9 ] Judge Burgess concluded: So what we have here is a delay of approximately a year in setting a trial date and some prejudice to the accused. The one year trial date appears to be unequivocally a result of inadequate resources. It was the first available trial date. . . . When one asks is a year reasonable, I suppose perhaps opinions on that might differ. But one has to go back to the intent of the Charter of Rights and Freedoms , and the societal interests under

section 11(

b) of the Charter . A person has a right to a trial within a reasonable time. Society has the right to expect that offenders will be properly prosecuted. Society also has an interest in ensuring the rights of every citizen of this country. So in my view, a delay of one year for the first available trial date is an unreasonable delay for a case of minor complexity where it simply appears . . . [that] there are not enough resources to deal with the matter.

Therefore, I am going to enter a stay pursuant to section 24(1) of the Charter . [ 10 ] The Crown submits that Judge Burgess erred in not recognizing that some portion of the delay would have occurred in any event and would have been reasonable. If a trial had been set for April 2012, for example, the delay of 9 months would have been reasonable. The Crown suggests that the delay attributable to lack of resources was therefore only 5 months. The Crown submits that is the delay the reasonableness of which Judge Burgess ought to have assessed. I reject that submission.

The delay to be assessed is the delay from charge to trial, 14 months in this case. Judge Burgess made no error in assessing the reasonableness of that total delay and in not subdividing it on the basis of what might, but did not, occur. [ 11 ] The Crown submits that Judge Burgess gave undue weight to the prejudice he found the accused had suffered. The Crown observes that the accused did not suffer other forms of prejudice like being held in custody or being subjected to onerous bail conditions pending trial.

The Crown noted that there was no suggestion that the accused ’ s ability to make full answer and defence has been compromised by the delay. [ 12 ] In my view it is clear both from the reasons he gave for his ruling and from the exchanges that occurred during the argument of the application that Judge Burgess did not give more weight to the particular prejudice occasioned to the accused than was appropriate. [ 13 ] In my view Judge Burgess did not misdirect himself in the exercise of his discretion in this case. Neither is his decision so clearly wrong as to amount to an injustice.

To the extent that any aspect of his decision involved a question of law, I see no error. [ 14 ] I dismiss the Crown ’ s appeal. Heard on the 13 th day of September 2012. Dated at the City of Edmonton, Alberta this 2 nd day of October 2012.

Brian R. Burrows J.C.Q.B.A. Appearances: Carrie Sharpe for the Crown Bob H. Aloneissi, Q.C. for the Respondent