R. v. Ferris Date:, 2010 BCPC 365

Citation: R. v. Ferris Date: 20101221 2010 BCPC 0365 File No: 83926-3C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL CARL FERRIS ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE DYER Counsel for the Crown: C. Choi Counsel for the Accused: B. Bagnall Place of Hearing: Port Coquitlam, B.C.

Date of Hearing: December 21, 2010 Date of Judgment: December 21, 2010 [ 1 ] THE COURT : The accused is charged on a multiple count Indictment sworn October 18th, 2010 with various charges, all relating to a grow operation located at 632 Claremont Street in Coquitlam, B.C. hereinafter called "the residence" which the Coquitlam RCMP took down on April 8th, 2009 pursuant to a search warrant issued that day. [ 2 ] These charges include two counts, namely, production of marihuana and possession of same for purposes of trafficking, pursuant to ss. 7(1) and 5(2) respectively of the Controlled Drugs and Substances Act , and in addition five separate counts relating to the possession of two guns: one a Mosberg shotgun, Model 500A, and the other a Smith & Wesson handgun, Model SW40V.

Both these guns were located by the police during the search of the residence in a main floor bedroom. [ 3 ] When the search warrant was executed on April 8th, 2009, the accused answered the rear door at approximately 1:05 p.m. when the police knocked and announced that they were present outside with a warrant to search the premises. He was then unclothed and immediately arrested for theft of electricity and taken into custody by the RCMP. He was the only person found at the home at the time.

He was identified at the scene or shortly after his transportation to cells by one Constable White. [ 4 ] The grow operation at the residence was found to contain on the ground and main floors (the only two floors in the residence) some 1,690 plants in various stages of growth. [ 5 ] The evidence given by the RCMP suggests the operation was one that required manual as against automated mechanical care for

purposes of tending the crop of plants.

The crop was healthy, suggesting it was receiving timely care according to the RCMP grow op expert, one Corporal Uzelac who testified on the voir dire . [ 6 ] The evidence is that the street value of these plants if left to mature for a single next crop would be between $157,500 and $473,000 depending on whether the crop was sold in bulk, by the pound, or in much smaller quantities, for example, by the gram which would yield the higher price. [ 7 ] The evidence of the police obtained during the search of the residence would suggest this grow operation was one of some sophistication, having four separate surveillance cameras set at various places on the exterior of the residence apparently attached to a TV monitor on a dresser in the bedroom which the two guns were found within.

The monitor was set up to show on quadrants of the screen the view from each outside camera. [ 8 ] In addition, one officer, Corporal Stanford, testified that there was a form of detection device for the front area of the residence attached to an exterior motion sensor located at the front of the house near the front door. If someone passed through it, apparently a "beep" would sound in bedroom number two on the main floor of the residence. [ 9 ] The trial before me commenced on November 22nd, 2010.

The accused had earlier elected trial by a Provincial Court judge and had entered not guilty pleas to counts 1 and 2 under the above Act on the Information and also counts 5 to 9 as well. Counts 3 and 4 were stayed by the Crown. [ 10 ] Counsel for the accused, Mr. Bagnall, indicated at the outset of the trial that he was seeking a remedy under s. 24(1) of the Charter in this case because his client alleged that his Charter rights under s. 7 and 11(

d) of the Charter have been breached by the police because Mr. Ferris had been "gated" immediately on his release relating to another criminal matter in New Brunswick in June 2010, and that under all the circumstances, it would be an abuse of process to allow this matter to proceed. The continuation of the trial would continue the abuse and the same could not be remedied in any other way other than by the Court granting a stay of proceedings. [ 11 ] Mr. Bagnall submitted -- I think with the full agreement of Crown counsel, Ms.

Choi -- that the remedy he sought could only be granted at the conclusion of the trial after I had heard all the evidence. He anticipated this would be substantially offered by the police involved in taking down the grow op on April 8th, 2009 and that he would not be calling any evidence for the defence. He did not call any evidence on the voir dire . [ 12 ] Mr. Bagnall proposed that a single voir dire be held and that I hear all Crown evidence and any other evidence offered on same. [ 13 ] It became clear in Mr.

Bagnall's very thorough and most helpful opening remarks that his focus was on the pre-charge delay in this case, essentially between April 8th, 2009 and either March 29th or April 6th, 2010, being the dates federal Crown approved the charges now before the Court, and the latter date being the date the first information or indictment in this matter was sworn. Nonetheless, he certainly argued that there was delay after the latest of these above dates as well that the Court should take into account. [ 14 ] Crown admitted that at all material times both the local RCMP and Crown knew where the accused was.

There was therefore no delay because the police could not locate Mr. Ferris. [ 15 ] At trial while Ms. Choi for the Crown initially appeared to oppose the application being brought by Mr. Bagnall, ultimately she agreed with the course he proposed and I therefore declared a voir dire on the understanding that I would rule on Mr. Bagnall's Charter application on its conclusion, and Mr. Bagnall helpfully further consented that if no stay of proceedings was granted then all evidence heard on the voir dire would form evidence at the trial. [ 16 ] I requested Mr.

Bagnall to provide a written statement of the issues he asked the Court to deal with on the voir dire and he did so as follows: The applicant says that his rights under s. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms were breached by an unjustified and unnecessary delay in the laying of charges and in effecting the arrest of the applicant which has rendered the current proceedings unfair. The applicant says that the pre-charge delay has the effect of abusing the Court's process and that the delayed prosecution and the reason for it has resulted in an oppressive and vexatious proceeding and is a violation of the fundamental principles of justice which underlie the community sense of fair play and decency.

The applicant seeks relief under s. 24(1) of the Charter of Rights and Freedoms . The applicant says that the laying of charges and the arrest of the applicant 14 months after the events which gave rise to the charges was an unjustified delay which has rendered the process unfair. The applicant says the current proceedings have been rendered unfair and that no other remedy other than a judicial stay of proceedings is called for as this is one of the "clearest of cases".

In the alternative, the applicant says that the pre-trial custody of the applicant served from the date of his arrest on the matter up to the date of the current trial have to be credited to any sentence he receives should the proceeding result in a conviction. [ 17 ] The majority of the facts in this matter are not dispute. [ 18 ] Constable Mick White, the lead investigator, testified on the voir dire . The search warrant allowing the police to enter the residence was as I said obtained on April 8th, 2009 based on an earlier report that electricity was being stolen at the residence.

It was executed at the residence at 1:00 o'clock p.m. on April 8th. White was part of a team of some seven officers in total who surrounded the residence. Corporal Stanford was the lead officer. [ 19 ] Two RCMP members detained the accused at about 1:05 p.m. when he answered the back door of the home leading on to a raised rear wooden deck attached to the residence.

Shortly after his initial detention and when the grow op was discovered within seconds of the police entering the residence, the accused was arrested for the two above Controlled Drugs and Substances Act charges. [ 20 ] The accused identified himself to Constable White when he was placed in the rear of his cruiser at about 1:15 p.m. and as well apparently told White that he knew he had an outstanding warrant for his arrest on a charge of aggravated assault in New Brunswick at the time. White shortly confirmed this fact.

[ 21 ] At 2:56 p.m. at the Detachment, White learned from another member of the search team, Constable Wiley, that two guns had been located at the residence and he arrested the accused on charges pertaining to same. [ 22 ] Later on April 8th, I believe, the Coquitlam RCMP were able to make contact with the Moncton, New Brunswick RCMP and confirm the outstanding warrant and obtain a copy of same I assume by fax.

No copy of this warrant was filed as an exhibit on the voir dire . [ 23 ] In this communication, White learned that the Moncton RCMP wanted the accused returned to New Brunswick to deal with the aggravated assault charge. The New Brunswick warrant is a so-called Canada-wide warrant. [ 24 ] On cross-examination, White said his Report to Crown Counsel was started the day he started his file. I was not given a precise date for this. I assume it was April 8th, 2009. He said the Report to Crown Counsel was created over a number of months.

The file was completed in early August 2009. [ 25 ] When asked why the police had taken so long to complete the file, he offered that he wanted to check things, for example, the RCMP had sent samples of the plants taken from various rooms on April 8th to the lab for analysis; this took a bit of time. As well, his Marihuana Enforcement

Section was very busy to the end of July. There was a lot of surveillance being done which in essence took time away from the Ferris case. He could think of no other reason for delay and said it usually took two to three months to complete a file or report. [ 26 ] He was finished most of the file in August 2009 but was still then awaiting apparently a firearms ballistic report with respect to the two guns found at the residence, and in addition a counterfeit currency report with respect to some $20.00 bills found as well. [ 27 ] By November 22nd, 2010 this latter report had not been forthcoming.

Count 4 dealing with same was stayed by the start of the voir dire . [ 28 ] Following his arrest, White said the accused was held by him to go to court. He was not to be released on process by which I understood White meant, for example, a promise to appear. [ 29 ] A Report to Crown Counsel was not done on April 8th as Mr. Ferris was to go to New Brunswick on the outstanding warrant. White said he was not being held in custody "on our file". [ 30 ] He said it was always the RCMP's intent to deal with their file relating to the grow op after the New Brunswick charges were dealt with.

If Ferris was convicted on them they would have to decide what to do with their B.C. file. They discussed I understood within the RCMP the possibility of not proceeding with their B.C. file if Mr. Ferris was convicted and sent to jail in New Brunswick, but Constable White agreed that this decision was not his to make. White said his detachment did not know what would occur to Mr. Ferris in New Brunswick. [ 31 ] At the time his Report to Crown Counsel was being prepared, White knew where Mr.

Ferris was being held in New Brunswick; I believe at the Miramichi Youth Centre, at least for a period of time, and at some point learned that he had a court appearance December 21st, 2009 relating to the New Brunswick charges. [ 32 ] The Report to Crown Counsel which White authored states in part: Due to the seriousness of the offences outlined [here he refers to the B.C. matters] police are requesting a Canada-wide warrant should he [Ferris] be released from custody. [ 33 ] White said this request was made because Ferris was in New Brunswick at the time and on his release, the police knew they would have to deal with their B.C. matter. [ 34 ] White said it was not his decision to bring Ferris back to British Columbia and could not state that cost was a factor in this discussion or matter. [ 35 ] White said the reason the accused was not charged with any B.C. offences -- and seemed to state he might have done so with respect to the guns -- was that Mr.

Ferris was not in B.C. and not able to attend court processes here. [ 36 ] He said over the next few months after April 2009 the Coquitlam RCMP were engaged in a number of investigations that took priority to Mr. Ferris's case. White explained that his Report to Crown Counsel was finally closed off on his computer and sent to Crown counsel on October 20th, 2009. He also testified he believed Crown had got some report earlier on October 9th.

There is really no other evidence that this occurred. [ 37 ] For purposes of this testimony, Crown counsel is a lawyer one Nancy Seto at Greenbank & Company, a local law firm then assisting the federal government with various drug prosecutions.

No lawyer from this firm was called to testify on anything at the voir dire and that is so with respect to matters that occurred while the file was with this office apparently into February 2010 when Murchison & Company took the file over for Crown. [ 38 ] White agreed there was always an urgency to get a Report to Crown Counsel into Crown and get charges approved but did not say why. [ 39 ] White explained the process of authoring the Report to Crown Counsel. I did not see it at the voir dire and it was not in whole or in part entered as an exhibit at the voir dire . The process involved in

part including portions of other team officers' notes, for example, he used a portion of Corporal Stanford's notes therein with respect to a description of the premises as he, White, was not inside them. White suggested that his preparation of the Report to Crown Counsel took place over roughly a four month period of time which I understood ran into August 2009.

[ 40 ] White said the Report to Crown Counsel was mostly completed by the beginning of August 2009. By this date, he said he had most of the disclosure, meaning for example a report from B.C. Hydro concerning theft of electricity at the premises, his fellow officers' notes, photographs, and various certificates of analysis were complete, but not all. [ 41 ] White recalled after the Report to Crown Counsel was completed and submitted for charge assessment, the RCMP got a number of requests for information which I understood emanated from Crown counsel.

He could not recall the number of times he communicated with Crown with respect to same. Nonetheless he said he felt his report was complete when submitted and did justify the laying of charges.

This decision of course was not his to make. [ 42 ] Even though both of the guns were found loaded, he said the same still required analysis as the police needed to prove the charges contemplated established that these guns worked in fact. [ 43 ] On cross-examination, it was suggested to Constable White that on one occasion Crown requested information prior to charge approval in December 2009 and that he had responded to them in March 2010, likely on the 10th, and he said this was possible.

No specifics were given in the question and no documents shown to Constable White on point, including copies of emails for example of Crown requests and a police response. He said this response took so long as it all depended on the circumstances. He could have spoken to Crown counsel. [ 44 ] White testified that he first found out that the charges the RCMP had recommended were approved by Crown counsel on April 10th, 2010. He was not aware a warrant had issued for Mr. Ferris until one week before the trial November 22nd, 2010. He did not deal with this end of things. In September 2009 he went to the RCMP Robbery

Section leaving the Drug Enforcement section. [ 45 ] White said he submitted his Report to Crown Counsel to Corporal Stanford for review in the ordinary course of how his detachment functioned on October 7th, 2009. He believed it had been updated October 19th by a court liaison officer. On October 18th, 2009 this report was apparently forwarded electronically to Crown counsel. [ 46 ] Part of the police work on this matter involved Constable Wiley obtaining an order pursuant to a report to a justice permitting the police to retain seized items found on September 24th, 2009.

This in essence allowed the police to further detain items seized at the residence for some six months. [ 47 ] Constable White agreed that the responsibility of Crown counsel on the matter started when Greenbank & Company received the Report to Crown Counsel he felt October 18th, 2009.

Prior to this date, no other report concerning this matter had been given to them. [ 48 ] Based on the evidence on the voir dire I am unable to find Greenbank & Company was retained on this file prior to October 18th, 2009. [ 49 ] Prior to testifying on his second day of trial, November 23rd, Constable White had prepared a typewritten

summary of his activity as a police officer from April 8th, 2009 to November 12th, 2009 which was marked as Exhibit H on the voir dire . [ 50 ] This

summary discloses that he worked on other matters or files, some or the majority of which related to other grow operations starting on April 9th, 2009 and showed that he worked for some nine days in April on such matters, as I understand this document. He typically worked four ten-hour shifts on Tuesday to Friday of each week. He worked 13 days in May 2009 according to this schedule. None of these days related to the Ferris matter. [ 51 ] On June 1st or 2nd, 2009 certain certificates were completed for the case at bar. Exhibit H fails to explain what these were for. June 2nd was spent training in Chilliwack.

Ten later days in June 2009 were spent working with the Burnaby RCMP on a different drug related matter. He was on vacation from June 30th to July 2nd. [ 52 ] On July 6th, the request for a firearms analysis was sent out in the Ferris matter. Nine later days in the month of July involved White performing other police duties. [ 53 ] On July 29th, the counterfeit money located at the residence was sent out for analysis. The last two days in July were spent in part by White investigating other grow operations. [ 54 ] On August 6th, the two guns were delivered to the lab and his

summary states as well this day: "Completed RCC and disclosure package for the Ferris case early August. Awaiting firearm and counterfeiting reports".

No other entries appear on Exhibit H for August. [ 55 ] On October 6th or 7th, 2009 an entry appears: "Have not received firearms or counterfeit reports and therefore submitted RCC to federal Crown". [ 56 ] Lastly, an entry on November 12th, 2009 on Exhibit H states: "Firearms lab report completed for Ferris case; received shortly after". [ 57 ] Also entered as Exhibits at the voir dire were an affidavit of Bill Cheavins who deposed that on August 19th, 2009 at the request of Corporal Stanford, he searched the Canadian Firearms Information System ("CFIS") and found no record of a licence or any other authority relating to firearms having been issued to the accused in the case at bar.

This was sworn August 20th, 2009. As well, two certificates of analysis for the two guns completed September 22nd, 2010 were filed as Exhibits A and B on the voir dire stating that the two were examined by the weapons examiner that day in Surrey, British Columbia. [ 58 ] These documents are the result of Constable White's July 6th, 2009 request for analysis of the guns. White said the analysis had not been requested sooner because he was busy on other matters. He readily agreed on April 9th, 2009 he could have sent out his request for a firearms analysis sooner.

He could not speak for the lab and why it had taken them over one year to do the examination, but suggested he understood they had their own system of priorities for different cases.

[ 59 ] The Report to Crown Counsel was described by Constable White in some detail at the voir dire .

It contains various parts, including a disclosure package and narrative being a synopsis of the case and details of the investigation set out in chronological order for the most part, a synopsis relating to each police officer involved in the investigation, police "will say" or witness evidence summaries, police statements including one Constable Mills prepared, and certain other documents showing the results of forensic reports. [ 60 ] The above disclosure package includes copies of documents the police obtained at the scene and possibly certificates which cannot be transmitted electronically as it seems all or the majority of the Report to Crown Counsel can be. [ 61 ] Again, Constable White admitted he had everything he needed in this case to go to Crown counsel on or about August 6th, 2009, save the firearms and counterfeit money reports or certificates which he obtained after October 18th, 2009 on some unknown date.

White also agreed on cross-examination the police had virtually everything they needed to submit a Report to Crown Counsel before August 6th, 2009 and said they wanted the whole package before submitting anything. He agreed he could have submitted the firearms certificate later and sought a new charge on this element of the case then. He said it was commonplace for the police in serious matters to submit a package to Crown counsel early on to get charge approval. [ 62 ] Constable White said it was not his decision as to when the warrant in the Ferris matter was served on the accused.

There is no dispute in this case that the Crown eventually assessed this case for charges and approved same on March 29th, 2010 and that a warrant issued and according to Ms. Choi, this was not initially a Canada-wide warrant. No copy of this warrant has been filed in evidence on the voir dire either. This warrant was issued April 6th, 2010, the same day the first Information in this matter was sworn. This warrant was some two months later served on Mr. Ferris in the Moncton courthouse on June 7th, 2010. [ 63 ] Constable White said after he went to the RCMP Robbery

Section in September 2009, this file remained his responsibility. He had most of it with him and did not enlist the help of anyone else on the Marihuana Enforcement Team to help him with it thereafter. Crown counsel requests for information went to him or someone on his team depending on what was being sought by federal Crown counsel. [ 64 ] During Crown counsel's opening remarks, Ms. Choi advised the Court (with no objection from Mr.

Bagnall) that after receiving the Report to Crown Counsel on or about October 18th, 2010 that federal Crown had made various requests of police for additional information prior to the charge approval which occurred March 29th, 2010. The dates of these various requests were said to be November 27th and 30th, December 2nd and 8th, and December 31st, all in the year 2009. Finally, on March 17th, 2010, Crown submitted a further request. [ 65 ] I have no evidence as to what these requests were for and when the RCMP responded to each of them save one.

It seems the December 29th Crown request received a police response on March 10th, 2010. White testified that this was possible. [ 66 ] White agreed that in September 2009 he had received copies of two letters dated September 10th and 18th, 2009 from a Mr. Markovitz said to be Mr. Ferris's B.C. lawyer directed to then federal Crown counsel, one Nancy Seto at Greenbank & Company. He was shown these letters in cross-examination by Mr. Bagnall and the same were filed as Exhibits on the voir dire . They state in part as follows: September 10, 2009 Thank you for your letter of September 9, 2009.

Our concern here is that the police should have presumably by now had sufficient time to provide Crown counsel with a report and recommendation as to charges. The cynical side of me suggests that the police are simply waiting to see if Mr. Ferris is convicted in New Brunswick. Unless information to the contrary can be provided, I will assume that that is what is occurring. If I am right, it would be a contention that this is a manifest abuse of the process. Again, I await your response. [ 67 ] I have not been provided with a copy of Ms. Seto's September 9th, 2009 letter. It would appear Mr.

Markovitz received no response to his September 10th letter, so wrote again to Ms. Seto on September 18th as follows: I write further to my letter of September 10th, 2009. I continue to have considerable concerns about the police conduct in relation to Mr. Ferris. If Mr. Ferris had not been transported to New Brunswick earlier this year, there is no doubt in my mind that charges would have been forwarded already to Crown counsel in relation to the allegation of marihuana cultivation in Coquitlam. Your letter to me indicates that Corporal Stanford is waiting for information before sending charge approval to Crown.

What possible information could the police be waiting for before forwarding their recommendation to Crown counsel? I continue to keep you on notice that I will be vigorously arguing that this pre-charge delay is an absolute abuse of the powers vested in the police department. We continue to await your response. [ 68 ] I should note that certain portions were deleted from the first letter by defence counsel, Mr. Bagnall, before the same was filed in Court at the voir dire with no objection from Ms. Choi. I understand those portions were not particularly relevant. [ 69 ] Constable White admitted that had Mr.

Ferris not been sent to New Brunswick in response to the outstanding warrant (and I have no precise date when this occurred but assume it was shortly after April 8th, 2009), there was no doubt charges would have been laid in essence sooner in British Columbia than occurred. [ 70 ] I have no evidence in the voir dire to suggest that the Coquitlam RCMP did anything other than respond appropriately to this outstanding warrant in returning Mr. Ferris to New Brunswick when they did. [ 71 ] White said Constable Sharma was tasked to deal with Crown counsel in New Brunswick in 2010 and then became involved in follow-up.

White said he had spoken to the RCMP in New Brunswick about Mr. Ferris's December 2009 court date and the criminal proceedings there but not Crown counsel. As well, he was unsure if he had discussed these New Brunswick proceedings with B.C. Crown counsel.

[ 72 ] White agreed that on April 8th, 2009 following the grow op bust, two things were of significance: the grow op, and the guns. The theft of electricity could be of significance; the counterfeit money was of no real concern to the police. [ 73 ] Had Mr. Ferris not then been subject to a New Brunswick warrant, he felt that he would have forwarded a Report to Crown Counsel on April 8th or 9th so the accused could have had an early bail hearing in British Columbia. The charges sought would have been similar to those now before the Court. He would have awaited the firearms analysis later.

The guns located appeared to him to be in essence proper working guns. [ 74 ] Constable Sharma testified. He was one of the seven persons on the RCMP team which executed the warrant on April 8th, 2009. He assisted Constable White with the accused's arrest and testified that on April 8th, at 1:30 p.m., the RCMP, using CPIC, confirmed the outstanding New Brunswick warrant on Mr. Ferris. Ferris was not however arrested under this warrant on April 8th, 2009. [ 75 ] On June 2nd, 2010, Sharma said he was asked by Corporal Stanford to look into Mr. Ferris's custodial status in New Brunswick.

He was also asked to liaise with federal Crown agents and organize transportation for the accused from New Brunswick to British Columbia. He was involved with this task June 2nd to 7th, 2010. Sharma on June 4th, 2010 prepared a Canada-wide Warrant Occurrence Report re Ferris marked as Exhibit J on the voir dire which states in part as follows: 1. Ferris had a court date June 7th, 2010 in New Brunswick concerning the aggravated assault charge. 2. The Ferris B.C. warrant was authorized by federal Crown in B.C. to be Canada-wide and that CPIC had been amended accordingly. 3.

The Port Coquitlam Sheriff's Office were prepared to go to New Brunswick to return Ferris to B.C. as federal B.C. Crown had told the B.C. RCMP that they intended to seek Ferris's return to attend court for the B.C. matter. [ 76 ] This memorandum then states: "The current status of the matter is as following: if Ferris is found guilty for the New Brunswick aggravated assault matter, he will remain in custody at the New Brunswick remand facility. The matter of Ferris's return to British Columbia would then be a concern for the New Brunswick Sheriff's Office and British Columbia federal Crown.

If Ferris is found not guilty on the New Brunswick then Kodiak RCMP Constable Arsenault and Corporal Ducette have been instructed by B.C. federal Crown Spencer Hamade to immediately arrest Ferris on the B.C. charges after Ferris is released from court. Spencer Hamade also advised Sharma that he would keep Sharma and the Coquitlam RCMP updated as to the ongoing status of the Ferris matter.

Therefore, Coquitlam RCMP have received approval/confirmation from federal Crown that they intend to have Ferris brought back from New Brunswick and approval/confirmation from Port Coquitlam Sheriff's Office that they will be the agency that attends and retrieves Ferris.

The CPIC entry has been amended and there is a written notice of intent from the offices of Murchison, Thomson & Clark on the file requesting Ferris's return to British Columbia." [ 77 ] Constable Sharma was contacted by B.C. federal Crown June 7th, 2010 and learned and reported in a further Occurrence Report dated June 11th, 2010, marked as Exhibit K on the voir dire , that Ferris had been acquitted of the aggravated assault charges, had been served with the B.C. Canada-wide warrant, this process being called by Mr.

Bagnall "gating" and was to be held on remand for five days and returned to B.C. with the aid of the Port Coquitlam Sheriff's Office. [ 78 ] There are several further facts relating to Mr. Ferris's court history, both in New Brunswick and B.C. not in dispute in this case in my understanding and received on the voir dire by me as statements from counsel: firstly, Mr. Ferris's first trial in February 2010 in New Brunswick on the aggravated assault charge before a jury concluded in the declaration of a mistrial. The June 7th, 2010 trial was the next trial date in this same New Brunswick matter. [ 79 ] Mr.

Ferris was returned to British Columbia and first appeared in Court here on June 11th, 2010 and consented to remain in custody until July 22nd, 2010 when a contested bail hearing was held with Mr. Markovitz as his counsel and Mr. Ferris was then ordered detained. [ 80 ] Mr. Bagnall commenced assisting Mr. Ferris as defence counsel in August 2010 and the trial dates before me in November 2010 were then set. [ 81 ] Corporal Stanford also testified on the voir dire . He was in charge of the above team.

After Ferris was arrested on April 8th, 2009 he said the police, after some discussion and being aware of the New Brunswick warrant, agreed to seek a six-day remand for Ferris. He was not formally charged on April 9th with anything relating to the grow op because he was being transported to New Brunswick in response to the outstanding warrant. He recalled after Ferris was transferred to New Brunswick asking White for a status report on the file and telling him or urging him more than once that he needed to submit I assume his draft Report to Crown Counsel to Stanford initially. After White went to the Robbery

Section in September 2009, he was then outside Corporal Stanford's jurisdiction or supervision according to Stanford. [ 82 ] He had reviewed the two letters from lawyer Markovitz. Stanford recalled the B.C. warrant for Mr. Ferris was only extended to become Canada-wide in June 2010, just before Mr. Ferris's June 7th trial date in New Brunswick. [ 83 ] Stanford said he believed there was some discussion; he did not say with whom as to what would occur if Ferris was convicted of the New Brunswick charge. They discussed what was a feasible option. Cost was a relevant consideration in these discussions.

I assume this meant transportation costs and not costs of a federal drug prosecution. If Mr. Ferris was convicted, they would discuss his sentence and what to do with the B.C. charges; did they wish to proceed or not? The Law

[84] I intend to set out briefly a

summary of the main legal principles which counsel seem to agree govern in this matter. [85] It is not in dispute that the defence on the application before the Court on this voir dire bears the onus of proving the allegedbreaches of the Charter on a balance of probabilities and establishing the remedy of a judicial stay pursuant to s. 24(1) of the Charter(see for example R. v. L. (W.K.), (SCC), [1991] 1 S.C.R. 1091). [86] I have reviewed all authorities submitted by both counsel and several located by me and I have included with these reasons anappendix setting out the cases.

I do not intend to refer to all of these cases in these reasons. Most can be factually distinguished from thecase at bar. [87] In Young the Ontario Court of Appeal considered whether charges brought against a lawyer for admittedly swearing a falseaffidavit some eight years after the alleged event ought to have been stayed by the Provincial Court trial judge under s. 11(

b) of theCharter. [88] Dubin J.A. of the Ontario Court of Appeal held the trial judge erred in doing so on the basis he did, but found rights the accusedheld under s. 7 of the Charter justified a stay due to the delay in commencement of the proceedings. He held s. 11(

b) deals with delayafter the charge is laid, not before, and found in Young there was no such unreasonable delay. He then considered principles offundamental justice and noted the comments of Chief Justice Laskin in R. v.

Rourke, (SCC), [1978] 1 S.C.R. 1021 thatthere were many cases where judges have used the common law principle of abuse of process as a way of controlling prosecution'sbehaviour that operated prejudicially to an accused. [89] In Rourke, Laskin C.J. observed at p. 1040 as quoted by Dubin J.A. in Young at para. 84 as follows: The facts and indeed the situation now before us do not, in my view, provide any basis for considering the invocation of the court'spower to stay the proceedings against the accused.

The appellant is in effect asking the courts to undertake the supervision, through theirpower to control prosecutions before them, of the operation and efficiency of police departments, departments which vary in organizationand in size and in the demands that are made upon them. Absent any contention that the delay in apprehending the accused had someulterior purpose, courts are in no position to tell the police that they did not proceed expeditiously enough with their investigation, andthen impose a sanction of a stay when prosecution is initiated.

The time lapse between the commission of an offence and the laying of acharge following apprehension of an accused cannot be monitored by Courts by fitting investigations into a standard mould or moulds.Witnesses and evidence may disappear in the short run as well as in the long, and the accused too may have to be sought for a long orshort period of time.

Subject to such controls as are prescribed by the Criminal Code, prosecutions initiated a lengthy period after thealleged commission of an offence must be left to take their course and to be dealt with by the Court on the evidence, which judges areentitled to weigh for cogency as well as credibility. The Court can call for an explanation of any untoward delay in prosecution and maywell be in a position, accordingly, to assess the weight of some of the evidence. [90] Mr.

Justice Dubin then concluded as follows in paras. 87 to 92 of his reasons: [87] I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge tostay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie thecommunity's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.

Itis a power, however, of special application which can only be exercised in the clearest of cases. [88] It is equally clear, according to the present state of the authorities that, absent any finding that the delay in the institution of theproceedings was for the ulterior purpose of depriving an accused of the opportunity of making full answer and defence, delay in itself,even delay resulting in the impairment of the ability to make full answer and defence, is not a basis for a stay of process. Why this is sois set forth in detail by Chief Justice Laskin in Rourke, supra, and by Mr.

Justice Marshall in United States v. Lovasco (1977), 431 U.S.783, in the portions of their judgments which I have referred to above. [89] Courts cannot undertake the supervision of the operation or the efficiency of police departments and to be asked to determinewhether the police proceeded as expeditiously as they should have in any given case. [90] Furthermore, to compel the police or Crown counsel to institute proceedings before they have reason to believe that they will beable to establish the accused's guilt beyond a reasonable doubt would, as Mr.

Justice Marshall stated, have a deleterious effect both uponthe rights of the accused and upon the ability of society to protect itself. [91] There is the further consideration that to hold otherwise would permit the court to impose an ad hoc limitation with respect to theinstitution of proceedings for indictable offences where no statutory prescription is in place. [92] However, as Estey J. stated in Amato, supra, there is a distinction to be drawn where the institution of the proceedings is validand the only issue is delay prejudicial to the accused, and the case where the executive action leading to the institution of proceedings isoffensive to the principles upon which the administration of justice is conducted by the courts.

I think this is such a case. [my own emphasis added] [91] Mr. Justice Dubin found that the Young, supra, matter fell into the latter category of cases in part because Mr. Young might havebeen charged in a timely way in 1976 under a provincial statute with less severe consequences as compared to the criminal charge beingbrought eight years later when this provincial statute had been repealed. [92] This principle in para. 87 in Young, supra, was adopted by our Supreme Court of Canada in R. v. Jewitt at para. 26 including thatthis power to stay should only be used in the clearest of cases.

By the time this principle was later approved in R. v. Keyowski, also inthe Supreme Court of Canada, it appears that the "and" in the test in para. 87 of Young, supra, was replaced with an "or", namely, "orwhere the proceedings are oppressive or vexatious". This case removed any requirement for proof of misconduct or improper motive toestablish the doctrine and the grounds for the stay (para. 3). Misconduct or improper motive are but two factors of many for the Court to

consider in considering whether or not in a particular case Crown's actions amount to an abuse of process. [93] In R. v. Kalanj, s. 11(

b) of the Charter was in issue and the reckoning of time - the reasonableness of same thereunder - was heldto start with the swearing of an information alleging an offence and continuing until the completion of the trial (para. 19). The Courtthen said this in para. 22: [22] The length of the pre-Information or investigatory period is wholly unpredictable. No reasonable assessment of what is or is nota reasonable time can readily be made. Circumstances will differ from case to case and much information gathered and an investigationmust, by its very nature, be confidential.

A court will rarely, if ever, be able to fix in any realistic manner a time limit for theinvestigation of a given offence. It is notable that the law, save for some limited statutory exceptions, has never recognized a timelimitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify theswearing of an Information then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomespossible. It is for that reason that s. 11 limits its operation to the post-Information period.

Prior to the charge the rights of the accusedare protected by general law and guaranteed by ss. 7, 8, 9, and 10 of the Charter. [94] Ms. Choi points out in para. 13 of her written submission that unlike with

summary conviction offences, the Criminal Code issilent with no time limit set out within which anyone is to lay an information for an indictable offence. I agree with this submission. [95] In R. v. L. (W.K), the Supreme Court of Canada considered whether or not a stay entered by a trial judge in a prosecution forsexual assaults 30 years after the offences allegedly occurred was proper. Breaches of s. 11(

b) and s. 7 of the Charter as in the case atbar were the basis on which the trial judge entered a stay. The Court considered whether the delay in itself was enough of a foundationfor the stay. Prior to quoting the above passage at p. 1040-1 from R. v.

Rourke, supra, the Court said this at para. 21: [21] Delay in charging and prosecuting an individual cannot, without more, justify staying the proceedings as an abuse of process atcommon law. [96] Continuing after setting out the above Rourke quotation, the Court held at paras. 23 to 25 as follows: [23] Does the Charter now insulate accused persons from prosecution solely on the basis of the time that has passed between thecommission of the offence and the laying of the charge?

In my view, it does not. [24] Staying proceedings based on the mere passage of time would be the equivalent of imposing a judicially created limitation periodfor a criminal offence. In Canada, except in rare circumstances, there are no limitation periods in criminal law. The comments of LaskinC.J. in Rourke are equally applicable under the Charter. [25]

Section 7 and s. 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 that delayupon 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. [97] In R. v.

O'Connor, the Supreme Court of Canada further clarified the principles applicable to abuse of process and said there wasno longer a need to maintain any type of distinction between the common law doctrine of abuse of process and Charter requirementsregarding abusive conduct. At issue were Charter rights under s. 7 and a remedy under s. 24(1). The common law doctrine arising inYoung, supra, was approved at para. 59.

The Court said this in para. 68 while considering whether the concept should remain distinct: [68] I also recognize that, despite these strong parallels, the common law and Charter analyses have often been kept separate becauseof the differing onus of proof upon the accused under the two regimes. In R. v. Keyowski (1986), (SK CA), 28 C.C.C.(3d) 553 (Sask. C.A.), at pp. 561-62, for instance, it was noted that while the burden of proof under the Charter was the balance ofprobabilities, the burden under the common law was the "clearest of cases".

It is important to remember, however, that even if aviolation of s. 7 is proved on a balance of probabilities, the court must still determine what remedy is just and appropriate under s. 24(1). The power granted in s. 24(1) is in terms discretionary, and it is by no means automatic that a stay of proceedings should be granted for aviolation of s. 7. On the contrary, I would think that the remedy of a judicial stay of proceedings would be appropriate under s. 24(1)only in the clearest of cases.

In this way, the threshold for obtaining a stay of proceedings remains, under the Charter as under thecommon law doctrine of abuse of process, the "clearest of cases". [98] In R. v. O'Connor, supra, at para. 73, the Court also said this: [73] As I have already noted, the common law doctrine of abuse of process has found application in a variety of differentcircumstances involving state conduct touching upon the integrity of the judicial system and the fairness of the individual accused's trial.

For this reason, I do not think that it is helpful to speak of there being any one particular "right against abuse of process" within theCharter. Depending on the circumstances, different Charter guarantees may be engaged. For instance, where the accused claims that theCrown's conduct has prejudiced his ability to have a trial within a reasonable time, abuses may be best addressed by reference to s. 11(b)of the Charter, to which the jurisprudence of this Court has now established fairly clear guidelines (Morin, supra).

Alternatively, thecircumstances may indicate an infringement of the accused's right to a fair trial, embodied in ss. 7 and 11(

d) of the Charter. In both ofthese situations, concern for the individual rights of the accused may be accompanied by concerns about the integrity of the judicialsystem. In addition, there is a residual category of conduct caught by s. 7 of the Charter. This residual category does not relate toconduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses thepanoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote

unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of thejudicial process. [99] Dealing with an appropriate remedy under s. 24(1) of the Charter and when to grant a stay, the Supreme Court of Canada held inO'Connor, supra, at para. 75: [75] Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of competent jurisdiction the powerto confer "such remedy as the court considers appropriate and just in the circumstances".

Professor Paciocco, supra, at p. 341, hasrecommended that a stay of proceedings will only be appropriate when two criteria are fulfilled: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, orby its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused or to the integrity of the judicialsystem. [100] In R. v.

Regan the Supreme Court of Canada said that O'Connor, supra, sets out the seminal discussion of abuse of process andsaid that in O'Connor at para.71 Madam Justice L'Heureux-Dubé had held that now when courts are asked to consider whether thejudicial process has been abused, the analysis under the common law and Charter will dovetail. At para. 50, the Court also quoted withapproval Madam Justice McLachlin's reasons in R. v.

Scott, (SCC), [1990] 3 S.C.R. 979 at p. 1007 as follows: [70] ...abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamentalprinciples of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousnessunderline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process andthe proper administration of justice.

I add that I would read these criteria cumulatively. [101] Regan, supra, was a case where the accused did not claim an abuse of process which allegedly had tainted the fairness of thetrial. The Court in Regan said this concerning a stay of proceedings as a remedy in para. 53: [53] A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: "that ultimate remedy", as this Court inTobiass, supra, at para. 86, called it. It is ultimate in the sense that it is final.

Charges that are stayed may never be prosecuted; analleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact.

For these reasons, astay is reserved for only those cases of abuse where a very high threshold is met: "the threshold for obtaining a stay of proceedingsremains, under the Charter as under the common law doctrine of abuse of process, the "clearest of cases" (O'Connor, supra, at para. 68). [102] The Court then reconfirmed the two step or two part test for granting a stay as per para. 75 in O'Connor, supra, and said this inpara. 54 through to para. 57: [54] … The Court's judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important.

It reflects the fact thata stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. Itaims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in thefuture. [55] As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter,however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamentaljustice of the system (O'Connor, at para. 73).

Yet even in these cases, the important prospective nature of the stay as a remedy must stillbe satisfied: "[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings"(Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings isonly appropriate when the abuse is likely to continue or be carried forward.

Only in "exceptional", "relatively very rare" cases will thepast misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" (Tobiass, at para. 91). [emphasis added] [I note that Regan was felt by the trial judge to be just such a case in this small residual category of cases]. [56] Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation topossible remedies less drastic than a stay.

Once it is determined that the abuse will continue to plague the judicial process, and that noremedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay. [57] Finally, however, this Court in Tobiass instructed that there may still be cases where uncertainty persists about whether the abuseis sufficient to warrant the drastic remedy of a stay. In such cases, a third criterion is considered.

This is the stage where a traditionalbalancing of interests is done: "it will be appropriate to balance the interests that would be served by the granting of a stay of proceedingsagainst the interest that society has in having a final decision on the merits".

In these cases, "an egregious act of misconduct could[never] be overtaken by some passing public concern [although] ... a compelling societal interest in having a full hearing could tip thescales in favour of proceeding" (Tobiass, at para. 92). [103] These cases in my view are the leading Canadian cases that set out the legal principles I should follow in dealing with theaccused's application. [104] Before leaving Regan, supra, I note that therein one fact that was said to be supportive of the trial judge's issuance of a stay ofproceedings was the Crown's having interviewed certain witnesses before trial and the charging process itself.

This, according to theSupreme Court of Canada, was the most contentious issue at the trial (see para. 22 in Regan. It was alleged that this was inappropriateand the trial judge found that this was an abuse for the Crown to interview complainants before the charges against the accused were laid

as it extinguished Crown's objectivity leading in essence to more charges being laid than would have been the case had this not occurred ( Regan , para. 87) . [ 105 ] The Nova Scotia Court of Appeal disagreed that collaboration between the Crown and police in the charging decision was wrong and found that provided no improper purpose was being pursued, it was desirable for Crown and police to avoid unnecessary disagreements about whether charges should proceed (para. 37).

Both at trial and before the Supreme Court of Canada, evidence was led or submissions made that in a number of Canadian provinces including New Brunswick, Quebec and British Columbia, Crown counsel do regularly exercise a pre-charge screening function following review by police files to see that for example there is a reasonable prospect of conviction (para. 72 dealing with the New Brunswick practice for example in Regan ). [ 106 ] As to the British Columbia practice, the Supreme Court of Canada said this at para. 77 in Regan , supra : [77] Several of the witnesses and interveners remarked that British Columbia also uses a system of pre-charge screening, similar to New Brunswick and Quebec.

In British Columbia, Crown counsel must approve charges before the police can lay them, and this Crown approval may require witness interviews, pre-charge. The Crown charge screening function is intended to accomplish the same variety of systemic benefits as in New Brunswick, Quebec, and even Ontario (see below).

A 1990 study by the Law Reform Commission of Canada, which looked at the role of Crown counsel in the criminal justice system, remarked that the pre-charge screening/interviewing procedures used in New Brunswick, Quebec and British Columbia work well ( Law Reform Commission of Canada, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990), Working Paper 62, at pp. 74-75). [ 107 ] Hence the system in use in British Columbia and used in the case at bar has found support in the Supreme Court of Canada. [ 108 ] No evidence was led on the voir dire before me including from any senior Crown counsel as to any practice routinely followed in our courts that is different with respect to this screening process, certainly on serious matters such as in the case at bar, as described by the Supreme Court of Canada in Regan , supra .

This procedure was followed as I have said in the case at bar. Nor is there any such evidence, namely, from such persons in B.C. who routinely and regularly make charging decisions as part of the screening process that would suggest some procedure other than what was followed in the case at bar immediately following Mr. Ferris's arrest could or might potentially have been followed in the ordinary course of such an incident. [ 109 ] There is no evidence that anything done by the police or Crown in this matter was unnecessary or unwarranted.

I have no evidence from a Crown counsel as to whether or not it would have been usual either where a Canada-wide warrant existed (or not) for an information to be sworn out, that is to say, a charge laid at an early date in a case of this magnitude (and whether or not a Report to Crown Counsel had been done or was merely started or had not been done at all).

I would have found such evidence very helpful. [ 110 ] Where the conduct of certainly the Crown and I expect the RCMP is called into question as in this case, evidence as to whether alternative courses of action can be and are regularly or ordinarily followed in B.C. courts or in the process leading up to trials could give a yardstick of sorts against which to consider the conduct in issue. [ 111 ] Such evidence was led in Regan , supra . The same can be said for what types of things can be or are routinely done with an accused in Mr.

Ferris's position who is held in one province on a warrant and pursuant to an indictable offence and who faces for example actual indictable charges in another jurisdiction. Gating [ 112 ] I turn now to the authorities placed before me by Mr. Bagnall dealing with gating. [ 113 ] Mr.

Bagnall has provided the Court with three cases dealing with gating, namely, Cardinal, a judgment of the Alberta Court of Appeal; Demers , a judgment of the Quebec Court of Appeal; and Benson , a judgment of our Court of Appeal, all being persuasive authorities and the case of Benson binding upon me as a trial judge. [ 114 ] In Cardinal , supra , decided long before O'Connor, supra , and Regan , supra , and involving post-charge delay, the trial judge had granted a stay of proceedings on an Indictment charging the accused with possession of stolen property because there had been an unreasonable delay in the prosecution of the case.

I was not provided with the trial reasons of Hetherington J. but I have obtained and reviewed them. [ 115 ] The offence date on the information relating to auto theft was June 19th, 1982 and it was sworn on November 22nd, 1982. The Court reviewed evidence of an investigating police officer given at the preliminary hearing that in early July 1982, the accused was incarcerated in Abbotsford, B.C. and the police knew this to be so on November 22nd, 1982 when the information was sworn and that he was to remain there for quite a period of time.

A warrant was obtained (and it is unclear when) for the arrest of the accused as he was outside Alberta. I assume the warrant was issued on or about November 22nd, 1982. [ 116 ] A police officer at the request of the Alberta RCMP spoke to Mr. Cardinal in British Columbia to ask if he wanted the Alberta charge waived to B.C. so he could plead guilty to it. He declined. The Alberta police therefore held the Alberta warrant pending Mr. Cardinal's release on parole when they intended to serve him at an address in Calgary where they thought he would be staying while on parole.

He did not, however, come to Calgary on release and breached his parole and was returned to prison in Abbotsford to serve the balance of his earlier sentence. He was released again -- no date is given -- I assume on parole, he did not report to the City police, I assume in Calgary, and his whereabouts were unknown to the police until they learned he had been in a car accident some 14 months after the charge was laid in January or February 1984, I assume in Calgary, and on February 3rd, 1984 was in the ICU at a hospital in Calgary. [ 117 ] A sitting of the Alberta Provincial Court was then and there held and Mr.

Cardinal made his first appearance on the November 22nd, 1982 information then, some 14-and-a-half months after the charges were laid. No dispute was made relating to pre-charge delay, June 19th to November 22nd, 1982, a period of some five months.

[118] The trial judge found there was nothing in the evidence to indicate the accused was aware prior to February 1984 that a warranthad been issued for his arrest on the November 22nd, 1982 charges. He held Mr. Cardinal was under no duty to make enquiries about itand said that the onus was on the Crown to take steps to bring the accused person before the appropriate court and to trial. He held theoffence in issue was certainly "nothing more than an ordinary street crime" with nothing complex about the law or evidence relating toit. He held the 13 month delay was presumptively prejudicial.

He said this in paras. 11 and 12 of his reasons: [11] Counsel for the Crown advances an explanation for the delay in this case, the undisputed fact that it is expensive to bring anaccused person who is a serving prisoner in another province to Alberta to face a charge here. While expense to the state is of course afactor to be considered, it is my view that it is in the best interests of the accused person and of society that any charge against him bedisposed of within a reasonable time.

An accused person is then able to make plans for his future without the prospect of facing a chargeand uncertainty as to the outcome of his trial looming on the horizon. Any plan that he may have for rehabilitation will therefore have agreater chance of success. This is of course of benefit to society. [12] In my view, Mr. Cardinal's prospects for rehabilitation were prejudiced by the delay of which he complains.

It is not suggestedthat he has otherwise been prejudiced. [119] He held that the accused's right to be tried within a reasonable time had been infringed and held that only a stay would be aremedy proportionate to the infringement of Mr. Cardinal's right to be tried within a reasonable time. The trial judge made no referenceto the concept of gating in his reasons. [120] The Crown appealed. The Court of Appeal in Alberta agreed with the trial judge's reasons and dealt with the Crown appealargument. The case in this Court's view dealt with s. 11(

b) of the Charter, unlike the case at bar. [121] The Crown agreed that a delay of 14 months between obtaining and executing the warrant was excessive having regard to thetrial judge's finding that the charge related to nothing more than an ordinary street crime. [122] The corresponding delay in the case at bar is some two months.

I am not of the view that nothing worse than "an ordinary streetcrime" would be a proper descriptor of the nine original counts on the indictment before me. [123] The Alberta Court of Appeal very much focussed on the purpose of parole in its reasons, namely, one of rehabilitation of theaccused to be carefully planned and conscientiously executed. Coming to Calgary was part of the plan.

His arrest on arrival and thepolice stratagem to save the expense to the public purse of bringing him to Alberta on the warrant the Court said would be totallydisruptive of this parole program plan, a matter the police had unacceptably not taken into account in their stratagem involving deliberatedelay. [124] Mr. Justice Kerans said this in

part in para. 6 of the Court's reasons: [6] ...I concur with what was said by the Committee on Remission Procedure headed by Fauteux, J. (as he then was), about this verypractice (quoted by Branca in R. v.

Parisien (1971), (BC CA), 3 C.C.C.(2d) 433, at p. 437): It has come to our attention that some law enforcement authorities follow the practice of holding warrants of arrest for inmates of penalinstitutions, the acknowledged intention being that, after these inmates have served their sentences, they will be re-arrested and requiredto face the charges contained in the warrants ... we cannot condemn this practice too emphatically.

Where the authorities hold a warrantfor the arrest of an inmate serving a sentence of imprisonment for another offence, they should direct that appropriate proceedings betaken forthwith to allow known outstanding charges against the prisoner disposed of immediately... [125] In the case at bar, the substantial complaint unlike in Cardinal, supra, relates to pre-charge delay including the time Crown tookto review and approve the nine charges which themselves are substantially more complex than the ordinary street crime in Cardinal.

The post-charge delay in the case at bar, if it is that, is at most two months and not 14-and-a-half months as in Cardinal. This delay wasfound to be deliberate and part of a conscious stratagem to disrupt the accused's rehabilitation unlike in the case at bar. [126] This decision appears to have been thus far mentioned in two British Columbia judgments, neither of which were presented tothe Court or argued, namely, R. v. S.D.W., [1994] B.C.J. No. 1214 (a judgment of the British Columbia Provincial Court) and R. v. P.(E.K.), [1989] B.C.J. No. 1623 (B.C.S.C.). It is said to have been distinguished in R. v.

R.E.M., 2004 BCSC 987 , [2004]B.C.J. No. 1849 (BCSC), also not presented or argued. [127] This latter decision of Romilly J. distinguishes Cardinal, supra, from R.E.M., supra, where the main reason for delay in R.E.M.was a conscious decision on the part of an accused to remain in the United States and not return to Canada following his arrest in July1988 until he was extradited therefrom some five years later in March 2003. His application for a stay of proceedings was accordinglydismissed. [128] In R. v.

Parisien (1971), (BC CA), 3 C.C.C. (2d) 433, a judgment of our British Columbia Court of Appealreferred to by Kerans J.A. in Cardinal, supra, the facts are that the police sat on a B.C. warrant relating to an auto theft possibly for aslong as 38 months before serving the accused on his release from custody in Alberta, a practice that Branca J.A. expressed concern aboutstating at p. 437 of his reasons: [15] Thus, it is in the interests of the public that justice be speedily administered and that all known charges against an accused bedisposed of as early as possible. [129] Our Court of Appeal was concerned that the sitting on the warrant for the period in question and not bringing the charges to theaccused's attention earlier could have deprived him of a chance under s. 421(3) of the Criminal Code (as it then was) to waive the B.C.charge to Alberta and plead guilty to it. [130] In Demers, supra, the headnote sets out the facts in English.

Much of the evidence in the Court of Appeal reasons is in French.

No trial court reasons are provided. The headnote states as follows: The accused was arrested in relation to a robbery. Two police officers asked the accused for his collaboration in a murder case inexchange for which they promised him that he would not be charged with respect to the robbery. The same promise was made to B. anaccomplice of the accused in the course of their investigation. It seemed to the police officers that the accused took an active

part in the murder. They charged him with murder. B. acted as a Crownwitness but the accused was acquitted by a jury. On the same day, he was re-arrested and charged with conspiracy, robbery and use of afirearm while committing an offence. No charges were brought against the B. The accused having admitted the facts alleged against him brought a motion for a stay of proceedings based on ss. 7, 9, 11(b), 11(

d) and12 of the Canadian Charter of Rights and Freedoms. In answer to his motion, the Crown denied having taken

part in an agreementwith the accused through the investigating officers. These officers testified that no immunity was offered and they had promised only apostponement of the actual charges during the investigation of the murder case. The trial judge dismissed the accused's motion. Theaccused was convicted and appealed. [131] The Quebec Court of Appeal appeared to accept that an oral offer of immunity was made to the accused for the robbery chargeand that the police had unilaterally decided not to respect this arrangement.

The accused was arrested on January 6, 1987 on a murdercharge and was later acquitted; it is unclear when. The Court of Appeal understood that both the murder and robbery investigations (andthe accused's involvement in each) were ongoing at the same time and obviously by the same police force. Kaufmann J.A. said thisgranting his appeal and upholding a stay of proceedings: [17] Again with respect, I do not think that Courts should countenance this practice. As the judge noted, "Il est clair qu'on aurait dûaccuser Monsieur Demers dès janvier 1987 de vol qualifié". I agree.

The fact alone that he was tried for murder does not, in my view,suffice to postpone the laying of other charges, then known, for this can lead to extreme situations. For instance, what if the accused isconvicted, but the verdict is reversed on appeal? Or, what if a new trial is ordered? Or, what if he is cleared by the Supreme Court ofCanada, perhaps a year or two or three after his trial?

In my view, an accused is entitled to know all charges then pending against him,although I would consider it reasonable to proceed with a charge of murder first, since a conviction on that charge, with its mandatorysentence, might make it unnecessary to proceed with relatively minor charges later. [18] In other words, I cannot approve of this type of "gating", and to say that time spent in jail will be considered should the accusedbe convicted, does not cure the ill. [19] Furthermore, sight must not be lost of the fact that, in the case at bar, the accused was arrested for robbery on October 16, 1986,and even though he was not formally charged at that point, the very arrest marks the beginning of time insofar as the Charter isconcerned: Mills v.

The Queen (1986), (SCC), 26 C.C.C. (3d) 481 at 559 (S.C.C.). [20] In the result, I find that the Appellant's Charter rights were violated, and that the appropriate remedy is a stay of proceedings,and I would so hold. [132] It would seem that when the murder charge was laid in Demers, supra, all necessary facts supportive of the robbery chargeagainst the accused were also known by police as Kaufmann J.A. uses the turn of phrase "other charges then known".

That is not theposition of Crown in the case at bar where their screening had not been completed until March 29, 2010. [133] In Demers, supra, the laying of the robbery charges apparently in breach of an oral immunity agreement relating to this charge,Kaufmann J.A. had observed such offers in an appropriate case were not necessarily a bad thing (see para. 8 of his reasons).

Implicit inthese reasons I think is the proposition that the police were in a position to charge the accused with robbery when he was arrested for itOctober 16th, 1986 even before the murder charge was laid and he was arrested January 16, 1987. [134] I also note that Kaufmann J.A.'s point in the last sentence of para. 17 is exactly what Corporal Stanford said the police discussedin Mr.

Ferris's case prior to his acquittal in June 2010 relating to the New Brunswick charge. [135] Finally, in Benson, supra, in the course of a sentence appeal the self-represented accused complained he was "gated" andclaimed an abuse of process under the Charter when, following two robberies, March 2nd and 3rd, 2001, no warrant was issued for hisarrest until July 4th, 2001 which was served September 3rd, 2001 when he was released after serving a sentence on another matter. It isunclear when this sentence began or what it was for. The Court had before it an affidavit of the officer who investigated the robbery.

Hesaid the investigation did not proceed with great haste after March 5th, 2001, but Thackray J.A., speaking for the Court, found that hewas satisfied: "that because of case loads, illness and an unexplained lack of information about the whereabouts of the appellant, theprocess was neither deliberately delayed nor designed to accomplish the gating procedure about which the appellant complains". Hefound that the accused had not established a Charter breach or an abuse of process. Position of the PartiesThe Defence [136] Mr.

Bagnall argues that the delay in laying the charges and delaying the execution of process has resulted in a breach of theaccused's ss. 7 and 11(

d) rights under the Charter. These two periods of time encompass the period April 8th, 2009 to April 6th, 2010and thereafter to June 7th, 2010. [137]

Section 7 of the Charter states: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [138]

Section 11(

d) states:

11. Any person charged with an offence has the right … (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal... [ 139 ] Mr. Bagnall asserts his client has suffered actual prejudice as a result of these delays amounting at most to about 14 months assuming an Information could have been laid April 8th or 9th, 2009 and going forward to the date when the warrant with respect to the B.C. charges ultimately laid April 6th, 2010 was served on the accused on June 7th, 2010. [ 140 ] The serious prejudice which Mr.

Bagnall submits his client has suffered as a result of the delay on the part of the police, and I think to a lesser extent Crown counsel, is very much based on an initial building block, namely, that there was in this case no good reason not to proceed with early charges in B.C. relating to the grow op bust which he asserts (para. 51 of his written submission) would have occurred in the ordinary course and he by implication means before Mr. Ferris went to New Brunswick since there was nothing to prevent both proceedings in B.C. and N.B. from overlapping.

He has not defined precisely in his written submission what he means by "in the ordinary course". [ 141 ] There is no evidence, save one comment made by Constable White, as to what the ordinary course would be I suppose absent the existence of the New Brunswick bench warrant, and I therefore assume Mr. Bagnall in para. 51 of his argument refers to the ordinary course in "grow-op" matters of laying of charges. [ 142 ] Constable White said the Report to Crown Counsel in such cases usually takes three to four months.

The evidence on the voir dire suggests this is the first step in B.C. for the laying of charges, namely, the preparation of a comprehensive Report to Crown Counsel. The next step is having the charges reviewed and approved, as occurred here, by federal Crown counsel engaged by the federal government in drug prosecutions.

The evidence in this case is that this is the ordinary course for a grow op drug prosecution. [ 143 ] I find that the procedure the police used in this case at bar relating both to their investigation and seeking charge approval is what they typically do in the ordinary course of their business relating to grow operation prosecutions. They did not follow some special or different procedure. I think in essence Mr. Bagnall's argument below in paras. 60 to 63 might be seen as a proposal that Mr.

Ferris ought to have been due to his circumstances treated differently by the police and that their investigation should have been done in some extraordinary way. [ 144 ] Mr. Bagnall says Mr. Ferris should have been charged immediately after his arrest on April 8th, 2009 (para. 61 of his written submission). He was not of course first charged in B.C. but rather was physically remitted to New Brunswick on the outstanding New Brunswick warrant for his arrest on a charge of aggravated assault.

When he was not charged prior to going to New Brunswick and not in fact charged until April 6th, 2010, one year later, his actual prejudice alleged to have been suffered is described by Mr. Bagnall very succinctly at paras. 60 to 63 of his written submission which I quote as follows: 60. The 14 months Ferris spent in custody on the New Brunswick charges is time for which Ferris can receive no credit since he was not in custody on the B.C. charges and he was acquitted of the New Brunswick charge. This is real prejudice to Ferris that cannot be undone. 61.

Ferris should have been charged immediately after his arrest on April 8th, 2009. Failing to charge Ferris at a time when the B.C. police had sufficient evidence to support the charges for which he was arrested resulted in Ferris being unable to make decisions he was entitled to make about how to conduct his defence in both sets of charges in B.C. and New Brunswick. 62. Had he been charged here in British Columbia, Ferris could have elected to have a speedy trial in B.C. prior to his return to New Brunswick. The proceedings in the two provinces could have overlapped.

He might have elected to consent to a detention order on the B.C. charges in which case he would be entitled to credit for pre-trial custody were he convicted in B.C. He could have engaged in pre- trial negotiations with Crown counsel on either or both sets of charges with a view to an early resolution. Any sentence that resulted might have been calculated in accordance with the totality principle. 63.

Because Ferris was detained in B.C. only after the February 2010 amendments to the Criminal Code regarding pre-trial custody in the event he is convicted of some or all of the charges on the matter before the Court, he will not be entitled to the usual two-for-one calculation of pre-trial custody that he would have been had he been charged in April 2009. [ 145 ] This then is the prejudice Mr. Bagnall alleges Mr.

Ferris suffered or which was caused by the delay on the part of the police and Crown in the charging process and investigation process, which delay is said to be so unreasonable as to result in an abuse of process and a breach of Mr. Ferris's Charter rights. This causal step I think is critical to Mr. Bagnall's argument. [ 146 ] Mr.

Bagnall asserts that the combined affect of all of what the police did, namely: 1. making a decision not to charge Ferris at the time of his arrest for an improper motive (it is not expressly stated in the written submission what this might be); 2. delaying the creation of a Report to Crown Counsel through negligence (again it is not expressly stated what this is); 3. ignoring two letters in September 2009 from Mr.

Markovitz complaining of delay; 4. submitting the Report to Crown Counsel when the firearms and counterfeit analysis were not in hand which information was required to complete it; 5. delaying a communication to Crown counsel; here I think he refers to a December 31st, 2009 Crown request for further disclosure not being dealt with until on or about March 10th, 2010 or thereabouts; and

6. not following up to ensure the warrant that I assume White requested was extended to New Brunswick rendered the current proceedings an abuse of process because jurisdiction was only obtained over Mr. Ferris by reason of the New Brunswick acquittal June 7th, 2010 which was unconnected and irrelevant to the B.C. charges. [ 147 ] Mr. Bagnall asserts the only proper remedy is a stay of proceedings. Position of the Crown [ 148 ] Ms. Choi argues that the case was complex and did require that various analyses be done.

The time taken by Constable White in light of his other duties to prepare the Report to Crown Counsel was reasonable. He neither deliberately nor negligently conducted himself. There was no unreasonable delay in this task, nor was the time from the receipt of the Report to Crown Counsel by federal prosecutors starting on or about October 18th, 2009 to the date of the charges being approved and sworn April 6, 2010 unreasonable. [ 149 ] It was common sense to transport the accused to New Brunswick on a then outstanding Canada-wide warrant shortly after April 8th, 200

[…]