R. v. Paul Raymond Clarke Date:, 2003 BCPC 129

Citation: R. v. Paul Raymond Clarke Date: 20030331 2003 BCPC 0129 File No: 58531-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PAUL RAYMOND CLARKE EXCERPT FROM PROCEEDINGS RULING OF THE HONOURABLE JUDGE D.M.B. STEINBERG Counsel for the Crown: J. Caldwell Counsel for the Defendant: D. Leflufy Place of Hearing: New Westminster, B.C. Date of Hearing: March 31, 2003 Date of Ruling: March 31, 2003 [ 1 ] THE COURT: The accused was involved in a police investigation on November the 3rd, 2000.

The Crown wishes to have the trial of that matter heard on April the 8th, 2003. [ 2 ] The accused provided his correct address to the police on November the 3rd, 2000, and he was released on an Appearance Notice to a person not yet charged with an offence. That notice required him to appear at the police station on December the 4th, 2000, in order to fulfil the requirements under the Identification of Criminals Act , and then a week later to appear in court to face possible charges on December the 11th, 2000.

The accused complied with both of the legal requests made upon him in that Appearance Notice. [ 3 ] When he showed up on December the 11th, 2000, there was nothing awaiting him in court. He, therefore, went across the hall and spoke to a clerk about the matter. He then spoke to his lawyer about the matter. [ 4 ] It is clear from the evidence of Mr. Simm, who was cross-examined on this application, that the accused acted with as much speed as one could possibly hope an accused would act in retaining legal counsel.

If my calculation is correct, November the 3rd, 2000, I think was a Friday, and I believe by Monday or so he was in Mr. Simm's office. [ 5 ] He apparently did not waste any time retaining Mr. Simm. It was more than just an idle meeting with Mr. Simm, because they immediately embarked on correspondence, I suspect to Mr. Clarke retaining his driver's licence throughout the administrative prohibition period, and Mr.

Simm wrote right away, effectively, to the Crown office asking for the police report. [ 6 ] For reasons that the Crown has not adduced any evidence on, nor made any submissions about, the Information charging Mr. Clarke was not laid until January the 30th, 2001. [ 7 ] There is before me a summons that was issued by the justice of the peace pursuant to the swearing of the Information, as would be legally required by the swearing of the Information, dated January 30th, 2001, returnable for February 26th, 2001, with the notation at the top that service was to be by mail.

There is not a shred of evidence placed before me that it was ever actually mailed out. The address indicated on the summons, if it would have been mailed, is the address provided by Mr. Clarke to the investigating police officer on November the 3rd, 2000. I make no finding that that summons was ever mailed. [ 8 ] In the meantime, apparently Mr. Simm at some point in February 2001 did receive particulars and apparently a copy of the now sworn Information. There is no indication before me that there was any communication about that with the accused. In fact, apparently Mr.

Simm did not get it until the end of February. It was a letter dated February the 12th, 2001, from the Crown. Mr. Simm says he wrote to the accused in January and then in the third week of February, but he has no recollection of seeing the accused in 2001 at all, or speaking with him. [ 9 ] The next indication of Crown interest in proceeding with this matter comes in a summons issued in April for personal service. Actually, issued February 27th for personal service with a return date of April the 9th. For whatever reason, no attempt was made until a few days before the return date on that summons.

There is an indication from Constable Agnew (phonetic) that he tried to attend upon Mr. Clarke Paul, whoever that may be, on the 3rd of April, by going to [No.] East 40, no city disclosed. I might have taken judicial notice that perhaps that is the same name as the accused except that, when one puts the surname first, one usually has a comma after the surname. [ 10 ] Apparently, if I believe the statement of attempted service, Constable Agnew talked to a Ms.

A., who is a person I know nothing about, whose name has not been mentioned in evidence as having anything to do with living at or controlling the residence at [No.] East

40 in city unknown. Even if I were to infer that he really means Vancouver, I do not know who Ms. A. is. I do not know whether she is the gardener, a passer-by on the street, or whatever. I was told that there was another woman who lived at that address with a young daughter by the name of E. H., so I do not know who Ms. A. is. [ 11 ] The next attempt is even more bizarre. On the 20th of April, apparently Constable Agnew attempted to serve a summons on Mr. Clarke, first name not disclosed, at [No.] East 40th, no city, and he does not say what happened. It is totally silent.

The only reference is back to the April 3rd attempt. There is not a check box, a comment, or anything else about what happened on April 20th. He does not say nobody was home, he does not say somebody was home. Just ticks off "other" and repeats what happened on April 3rd. To say that that is unsatisfactory does not do justice to the word "unsatisfactory". [ 12 ] In the meantime, it would appear that Mr. Clarke, the accused's, life had carried on.

He broke up with the woman he had been living with for some eight years and moved to a different location. [ 13 ] The next he knows about the matter is when he stopped for a taillight infraction and was told that there is a warrant out for his arrest on this matter, and that was in February 2002. At that point he is released, after his arrest, and he makes every single required court appearance. He immediately retains Mr. Simm again. He is arrested February 2nd. His first appearance in court is February the 18th. Put over to March 18th.

From March 18th it goes to April the 10th for an arraignment hearing, so immediately after the second appearance. Mr. Simm's affidavit in evidence is not questioned that he was offered an October 11th, 2002, trial date as the first available date for the court, and he accepted the date that was proffered to him. [ 14 ] Crown was then put on notice about an application under s. 11(b). That was to be heard in October 2002. That was delayed because of failure to file the affidavits which have now been filed. [ 15 ] In the meantime, I have evidence before me that the person that Mr.

Clarke says he had been drinking with just prior to his stop by the police has disappeared. He says that he has spoken to numerous friends and the person's girlfriend. He says that as far as he knows, the person has moved around the province somewhat. He is not sure where the person is from, but that he had worked at some point in the past, before Mr. Clarke had met him, in Prince George, and nobody seems to know where this fellow, Mr. M. (phonetic), has gone off to. Mr. Clarke says that he was waiting until he knew that he was charged and had a trial date before trying to get hold of Mr. M.

He says that, essentially, because the matter has dragged on for so long, he did not keep in touch with Mr. M. and Mr. M. has completely dropped out of sight. He says that Mr. M. would be relevant and important to him because that is the person that could confirm the accused's evidence with respect to how much he had to drink. [ 16 ] The accused says that he has recently turned down work because he does not know the outcome of the matter, should he now be proceeding to trial.

The work that he turned down required him to give a fairly long-term commitment, given the trade that he is in, which is roofing, and he was unable to give that commitment. [ 17 ] He also says that he has been under varying degrees of stress because this matter has been outstanding for such a long period of time. Finally, he says essentially that his right under s. 7 and his right that is provided for under the Criminal Code itself has been greatly prejudiced by the inability to produce Mr. M. [ 18 ] With respect to the prejudice caused by stress, I do not put much, if any, weight on that issue. Mr.

Clarke said himself, and it is clear from the way that he behaved in the intervening time period, that he assumed he was not charged. He simply carried on life in a normal fashion. With respect to the stress that he currently feels, that is the sort of stress that the superior courts have acknowledged is present for any criminal case. [ 19 ] With respect to turning down work, that is only most recently and has not inconvenienced his life unduly for an undue period of time. Once again, it is the sort of issue that every person facing a criminal charge has to come to grips with; an uncertain future.

So again, I do not put much weight on that prejudice. [ 20 ] I do, however, find real and substantial prejudice to the accused with respect to the inability to locate Mr. M. As the accused I think almost said in one of his answers on the stand when being cross-examined by the Crown, it is almost as though people would look at him like a liar, or at least that is his perception, if he were to give evidence of his drinking pattern and who he was drinking with, but then not produce the person.

He may be wrong that people would view him as a liar if in fact they understood that the person was truly unavailable, but that perception is still there and, in very real terms, in a substantive way it clearly is important to have corroborative evidence, where available, evidence obviously that would be subject to the test of being cross-examined by Crown counsel. [ 21 ] Contrary to the position that the Crown takes, the evidence of Mr. M. is even more relevant in view of the apparent observations of the police officer.

I say that not only with respect to Count 1, but also Count 2, the refusal to take the breath test allegation. It might, as defence counsel has pointed out, be very relevant in determining the grounds upon which the officer made his demand. It may be relevant in considerations of the accused's responses. [ 22 ] The officer does make certain assertions in the Report to Crown Counsel, which I have looked over. However, those assertions are simply that; those are untested assertions that have not been subject to being given either under oath or tested by means of cross- examination.

Assertions in a Report to Crown Counsel often come out somewhat differently, in my experience over the last 30 years, when tested in open court. [ 23 ] Another obvious prejudice, as far as I can see, is demonstrated by Mr. Simm's evidence and Mr. Clarke's evidence. That is simply the effluxion of time has not improved people's recollections. That is a natural phenomenon and it was amply demonstrated, I think, throughout the cross-examination by the Crown of the two witnesses that were called on the application.

The obvious has happened, that simply the effluxion of time has made people's recollection increasingly unclear. That clearly is a prejudice. [ 24 ] There is, as I recall Chief Justice McLachlin saying, I believe it was in Moran , a very real societal interest in having criminal matters aired in a public forum by way of a trial. It is clear that it is in everybody's best interest to have the air cleared and, in general terms, not have stays entered because of a violation of s. 11(

b) of the Charter , which leaves the whole proceeding under somewhat of a

cloud. But that societal expectation is not a Charter -protected right, it is a societal expectation. It is not a Charter -protected expectation. The right to have a trial within a reasonable time period is a Charter -protected right for an accused. [ 25 ] I do count the period from the swearing of the Information January 30th for the next 20 months through to October 2002 as the relevant time period.

Much of that time period clearly would be comprehended in the normal lead period, but it is relevant when one looks at the totality of the time period. [ 26 ] Crown says that the accused may have been the author if his own misfortune in terms of some of the delay because he did not update his driver's licence address for some four months. There is absolutely no evidence before me, nor am I going to take judicial notice of the fact that the police may very well have been actively looking for him on a warrant issued for failure to appear to a summons that was never served on an impaired driving.

The Crown has not given me the slightest indication that that was anything more than a passive warrant that would surface and be served if and when the police ever came across the person named in the warrant. I say this especially in the view of the absolutely lackadaisical unsatisfactory manner in which the Crown, through the police, tried to serve the initial summonses.

There is not the slightest suggestion in this case that if he had notified the superintendent of his address, that it would have made the slightest difference. [ 27 ] I also find that having showed up as he was required to on each of the occasions set out in the Appearance Notice, that that fulfilled the accused's obligations. There was no burden on the accused to chase the police to try and get them to act in an expedited manner.

Everything that the accused did at the times that he knew he was either about to be charged or thought he was about to be charged, or when he knew that he was in fact charged, speaks to his desire to get the matter dealt with as quickly as possible. As I say, he appeared on each of the two dates at the beginning. He went across the hall to speak to a clerk about things. He spoke to his lawyer about it. He hired a lawyer right away.

Then in February 2002, and the dates following that, the lawyer accepted the very first date offered by the trial coordinator. [ 28 ] I therefore do not assign any laches or responsibility for the delay, during the time period I have set out, to the accused.

I do find that there has been very real and substantial prejudice to the accused through this missing witness who may very well have moved on, but if the accused's had been able to contact him early on he could have kept track of the person and that opportunity is completely gone now. [ 29 ] I am therefore entering a judicial stay on this matter because I find s. 11(

b) has been offended. (EXCERPT CONCLUDED)