R. v. Singleton, 2010 BCSC 1855

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Singleton, 2010 BCSC 1855 Date: 20101224 Docket: 15635-7 Registry: Nelson Regina v. Marvin Kenneth Singleton Before: The Honourable Madam Justice E.A. Arnold-Bailey Reasons for Judgment –

Part 2 – Charter Applications Counsel for the Crown: Trevor Shaw and Elizabeth Campbell Counsel for the Accused: Kenyon McGee and Jo-Anna Cowen Place and Date of Trial: Nelson, B.C. October 26, 27, 28, 29, 30, November 2, 3, 4, 5, 6, 16, 17, 18, 19, 20, 23, 24, 26, 30, December 1, 2, 4, 7, 8, 9, 10, 11, 14, 15, 16, and 17, 2009, January 25, 26, 27, 28, 29, February 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, and March 22, 23, 24, and 25, 2010 Place and Date of Judgment: Nelson, B.C. December 24, 2010 THE CHARTER ANALYSIS Introduction [ 1 ] These reasons are the Reasons for Judgment –

Part 2 – Charter Applications referred to in R. v. Singleton , 2010 BCSC 1734 , filed on December 3, 2010. In the Reasons for Judgment –

Part 1- Offences of Theft and Fraud (“Part 1”) I found Mr. Singleton guilty of one count of theft and one count of fraud. I stated that the defence applications for a judicial stay for alleged violations of Mr. Singleton’s Charter rights were denied. What follows are my reasons in relation to the defence Charter applications, as they address the second issue set out in

Part 1 at para. 37: Whether Mr. Singleton has established a violation of one or more of his Charter rights justifying the imposition of a judicial stay of proceedings pursuant to s. 24(1) of the Charter. [ 2 ] Reasons for Judgment

Part 1 and

Part 2 are meant to be read together. I do not propose to set out again all the evidence relevant to the alleged Charter violations. I will, however, refer to aspects of the police evidence and Mr. Singleton’s evidence contained in

Part 1. I will also refer to parts of Mr. Singleton’s evidence relevant to his Charter applications. In addition, I will set out the evidence pertaining to the alleged abuse of process perpetrated by the Burns affidavit in the context of the extradition proceedings, including the evidence of the American lawyers, Mr. Semmelman and Mr. McCausland. [ 3 ] It is, however, appropriate to state that the time frame for the offences of theft and fraud, in relation to which I have found Mr. Singleton guilty, is from March 30, 1988 to December 31, 1990.

The charges pertaining to the George Estate were originally laid on December 30, 1997. On August 5, 1998 additional charges of theft and fraud were also laid against Mr. Singleton in relation to the Copp Estate. The latter charges were stayed in 2009 at the beginning of this trial. [ 4 ] Mr. Singleton, who holds both Canadian and American citizenships, continued to reside in Nelson, British Columbia (where he had practiced law from September 11, 1978 to October 23, 1990) until the autumn of 1993, when he moved to the United States, initially to assist an elderly parent in Texas. [ 5 ] In the United States Mr.

Singleton apparently lived openly and worked under his own name in various places. He had driver’s licences in his name in Texas, South Dakota, and Kansas. By 1995 he had settled in Wichita, Kansas, doing welding and other jobs, and by 1997 he was working part-time teaching and in the college library at Butler College in nearby Rose Hill. [ 6 ] It is admitted that by September 1998 Mr. Singleton knew of the criminal charges outstanding against him in Nelson. Although Mr.

Singleton contacted two lawyers in British Columbia at different times about legal representation and returning to this jurisdiction to face the charges, he did not voluntarily return. [ 7 ] Canadian law enforcement agencies eventually sought and obtained the extradition of Mr. Singleton from Kansas, with his

initial arrest occurring on August 30, 2004. Upon finding himself in custody in Kansas, Mr. Singleton initially planned to seek bailpending the extradition proceedings, but then withdrew his application after the Burns affidavit was placed before Judge Bostwick of theU.S. District Court for the District of Kansas. Filed subsequent to several other affidavits, the Burns affidavit referred to the outstandingcharges and their alleged attendant circumstances, contained some potentially misleading material, and appended newspaper articles thatdid not portray Mr. Singleton in a favourable light. Mr.

Singleton considered parts of the Burns affidavit to be highly defamatory,inaccurate, and prejudicial. Mr. Singleton now claims that the contents of the Burns affidavit and its use were highly improper andrepresent a grave abuse of the B.C. justice system that tainted his application for bail pending the extradition proceedings to the extentthat he was compelled to withdraw it. [8] Mr. Singleton remained in custody in Kansas from the date of his arrest on August 30, 2004 until his return to Canada onSeptember 2, 2006. [9] During this time Mr.

Singleton engaged in proceedings before the U.S. courts in relation to the Canadian request for hisextradition. For the majority of these hearings Mr. Singleton was self-represented, having discharged his legal counsel shortly after heinstructed that his application for bail pending the extradition hearing be withdrawn. [10] On February 28, 2005 Judge Bostwick issued a certificate of extraditability and order of commitment, which Mr. Singletonthen appealed. Mr.

Singleton remained in prison in Kansas until he abandoned his appeal of the extradition order and became subject toextradition to Canada. [11] On August 30, 2006, two years after his arrest, the surrender order for Mr. Singleton’s return to Canada was issued. OnSeptember 2, 2006 he was transferred by the RCMP from Kansas to Kelowna, B.C., where he initially remained in custody.

He thensought and obtained judicial interim release on September 8, 2006, and has been out of custody since, residing in Nelson, B.C. while thismatter proceeded before the Provincial Court to preliminary inquiry, and then to trial in this Court. [12] Mr. Singleton was initially represented by Mr. Wyllie, but Mr. Wyllie withdrew and Mr. Singleton came to represent himself.This continued from April 2007 through to early September 2008. During that time Mr.

Singleton made a number of pre-trialapplications seeking disclosure from various sources, brought an unsuccessful interlocutory appeal, and filed applications under theCharter and the Canadian Bill of Rights, S.C. 1960, c. 44. After bringing a Rowbotham application, Mr. Singleton came to berepresented by his present counsel, Mr.

Kenyon McGee, in early September 2008. [13] In light of what defence counsel characterizes as the combination of the extraordinarily excessive delay in this case that hascaused all the witnesses’ memories to fade, a potential witness to be lost, various relevant documents to be destroyed, the onset ofMr. Singleton’s own mental deterioration due to an Alzheimer’s-type of dementia, and a number of other alleged abuses, Mr.

McGeesubmits that the only just outcome at trial is the imposition of a judicial stay pursuant to s. 24(1) of the Charter. [14] It is the Crown’s position that the delay in bringing this matter to trial was caused or significantly contributed to byMr. Singleton, that he has not been significantly prejudiced by the passage of time, that the alleged abuses are without foundation, andthat Mr.

Singleton is still very mentally alert and able for a man 77 years old, and is thus able to have a fair trial in answer to the charges.Given the nature of the Crown’s case, which includes a significant number of documents, the Crown submits that the relevant evidencehas been preserved. Where Mr. Singleton complains of lost evidence, any such evidence is at best peripherally relevant, and much, if notall of it, was either in his possession or within his control to preserve, and he failed to do so. [15] Based on the evidence before me, the alleged Charter violations can be divided into four discrete areas: i. Mr.

Singleton submits that his s. 7 right to liberty and security of the person (and the right not to be deprived thereof except inaccordance with the principles of fundamental justice) and his s. 11(

d) right to a fair trial have been seriously violated due to a significantand serious deterioration of his mental condition in recent years, such that he is unable to properly defend himself; ii. Mr. Singleton submits that his s. 11(

b) right to be tried within a reasonable time has been flagrantly violated given that almost20 years have passed since the end date of the time frame contained in the Indictment, seven years have passed from the end date in theIndictment and the laying of the present charges (pre-charge delay), followed by the passage of almost 11 years from the date the presentcharges were laid to the date of the commencement of the trial (post-charge delay). Mr.

Singleton submits that during the period of sevenyears of pre-charge delay the Crown and/or the police took minimal or no action to further the investigation and prosecution.Mr. Singleton submits that after the charges were laid Canadian law enforcement agencies, primarily the RCMP, “dragged their heels,”doing virtually nothing to facilitate his return to Canada from Kansas for long periods of time prior to 2004, when extradition proceedingswere commenced. Mr.

Singleton maintains that during his time in Kansas, particularly while he was employed part-time at ButlerCollege in Kansas, he was eminently findable, and thus that he is not responsible for any significant post-charge delay. He also allegesreal prejudice arising from delay in terms of the deterioration of his mental condition, the loss of a potential defence witness, and the lossof bank records, in particular cheques and other bank documents that support the bank account statements in evidence. iii. Mr.

Singleton submits that the conduct of the Crown, in preparing and submitting the highly inflammatory and inaccurate Burnsaffidavit to the U.S. District Court in Kansas when he was seeking bail pending extradition, constitutes a serious violation of s. 7, fallingwithin the residual category of abuse. This alleged abuse caused him to be arbitrarily detained during the extradition proceedings inviolation of s. 9. iv. Mr.

Singleton submits that the improper involvement of the Law Society in the Crown’s conduct of the prosecution, in terms ofpressing for his prosecution in these criminal proceedings and for his extradition, and in seeking redress for its own losses (in terms ofthe payment to the George Estate beneficiaries from the Special Compensation Fund), also constitutes an abuse of process and a seriousviolation of s. 7. [16] In light of the alleged Charter violations and the relief sought, the decision of Wood J.A. in R. v. Light (1993), (BC CA), 78 C.C.C. (3d) 221 (B.C.C.A.) is relevant:

75 I begin by noting that the power of the court to grant a stay of proceedings, pursuant to s. 24(1) of the Charter, because of abreach of the accused's constitutional right to be tried within a reasonable time, and the jurisdiction of the court to stay proceedingswhich would constitute an abuse of its process, are separate and distinct remedies for separate and distinct mischiefs. They serve differentinterests. They are guided by different principles. It is therefore my view that they should be considered separately, and not ascomplementary portions of one single complaint. 76 The right to be tried within a reasonable time, under s. 11(

b) of the Charter, is a right belonging to the accused. While itcoincidentally serves the community's interest in ensuring that those who commit crimes are brought to justice, it is an adjunct of, and itsreal purpose is to protect, the right of an accused to liberty, security of the person and a fair trial; Regina v. Morin, (SCC), [1992] 1 S.C.R. 771.

When the breach of the right has been established on a balance of probabilities, the accused has a remedy.That remedy is a stay of proceedings which the court then has the constitutionally derived discretion to order under s. 24(1) of theCharter. 77 By contrast, the special power to stay proceedings which constitute an abuse of process is an adjunct of the inherent jurisdictionwhich the courts have to control their own process.

That jurisdiction, which can only be exercised in the clearest of cases, existedindependently of the remedies provided for the breach of individual rights which are now constitutionally entrenched in the Charter; see;Regina v. Scott, (SCC), [1990] 3 S.C.R. 979, per McLachlin, J. at p. 1006. Its purpose is to preserve the integrity of theprocess through which justice is administered in the community, not to provide a remedy for the breach of individual rights.

When thejurisdiction is exercised, it is exercised in order to prevent the court's process from being enlisted in a proceeding which would damageits integrity; Connelly v. D.P.P., [1964] 2 All E.R. 401 (H.L.), Regina v. Jewitt, (SCC), [1985] 2 S.C.R. 128, Regina v.Conway, (SCC), [1989] 1 S.C.R. 1659. The fact that when it is exercised it simultaneously provides, as it frequentlywill, a remedy for a breach of individual rights, is a circumstance which is incidental to and does not detract from the unique nature ofthis important jurisdiction.

With this distinction in mind, I will address each of the alleged Charter violations in the order set out above. 1. Does Mr. Singleton’s mental deterioration and condition at trial constitute a violation of his s. 7 and s. 11(

d) Charterrights? [17] The defence submits that to conduct the trial in 2009 and 2010, when Mr. Singleton is an old man with impaired mentalabilities, violates his s. 7 right to liberty and security of the person (and the right not be deprived thereof except in accordance with theprinciples of fundamental justice) and his s. 11(

d) right to make full answer and defence in the context of a fair trial. As a result, counselfor Mr. Singleton submits that this is the clearest of cases where a judicial stay should be entered because to do otherwise would shockthe conscience of the community and would be detrimental to the proper administration of justice. [18] In relation to this submission, I rely upon the evidence relating to Mr. Singleton’s mental condition from the testimony andreports of Dr. Magee and Dr. Smith set out in

Part 1, and Mr. Singleton’s testimony as set out in

Part 1, as well as his conduct in court. Attrial he was on the stand for a total of ten days. [19] Dr. Magee’s diagnosis was that Mr. Singleton is likely dealing with a “mixed pattern likely both a multi-infarct/Alzheimer’stype combination of dementia.” [20] Dr. Smith concluded that Mr.

Singleton was suffering from a mild degree of dementia at the time she assessed him that was,“currently manifesting in impairment of [his] recent memory and concentration but [his] long-term memory appears to be intact.Nevertheless the deficits are beyond what would be considered normal aging.” [21] In terms of the features and diagnosis of Mr. Singleton’s mental condition at the time of trial, Dr. Magee and Dr. Smith do notdisagree in any significant way. Dr. Magee approached Mr. Singleton from the point of view of a diagnostician and treating physicianwho had seen him several times, whereas Dr.

Smith was asked to assess Mr. Singleton’s level of mental functioning on one specificoccasion and review aspects of his performance at trial. Both psychiatrists impressed the Court as fair-minded and knowledgeableprofessionals, well familiar with the issues of mental deterioration and diseases associated with aging. [22] During the trial Mr. Singleton was generally alert and responded to the questions asked, although at times he tended to digresstowards the irrelevant. Mr. Singleton’s ability to concentrate and respond on point fluctuated.

Some days he was sharper and more ableto concentrate than others, but at no time was he unable to answer the questions posed. He was sufficiently cognitively alert to be verybrief and on topic in his answers to some questions. At other times he digressed, sometimes pointlessly but sometimes to avoid answeringa particularly troublesome question. [23] Mr. Singleton appeared to tire more easily some days, while on other days he had more stamina and displayed more energy inthe witness box. At times the Court changed sitting hours, starting and ending earlier to accommodate him. Sometimes Mr.

Singletonhad difficulty hearing the questions and they would have to be repeated so that he could answer. Overall, he was responsive and at timesdisplayed a quick mind and a feisty nature. In my view such fluctuations would no doubt affect his results on the MMSE (Mini MentalStatus Examination), conducted by Dr. Magee and Dr. Smith, within a point or two. I note the MMSE is described not as a definitivescale, but “a crude tool.” [24] I most certainly accept Dr. Magee’s opinion that the deterioration of Mr. Singleton’s mental condition is due to a multi-infarct/Alzheimer’s combination of dementia.

I also agree that on a “good day” he would present as observed and assessed by Dr. Smith.On a “less good day” he would be somewhat less sharp and less able to concentrate, thus permitting some of Dr. Magee’s observations. [25] A careful review of the transcript of Mr. Singleton’s testimony at trial will dispel any notion that Mr. Singleton was notmentally sound enough to participate in this trial to the extent that it rendered the trial unfair. [26] However, a number of examples are useful to portray the tenor of his testimony.

I have selected these portions to show aspectsof his mental condition, not for their relevance to the offences charged. I must also say that Mr. Singleton, like many of the other

witnesses, could not recall many things from the distant past. Like other witnesses, his memory was often refreshed by a document. However, I am firmly of the view that Mr. Singleton could remember very well generally what went on as it related to the activities giving rise to the offences charged. [ 27 ] During his trial Mr. Singleton, even with his mental deterioration, still impressed the Court as a very bright and articulate elderly man, albeit one who is eccentric and not particularly modest about his intellectual gifts. In this regard, I note that Mr.

Singleton was very capable of explaining complex topics in the course of his testimony, including: what “an analytical index is” (December 7, p. 18, ll. 12-16); that he has a memory system cued on dates that he relied upon in his studies, for example, in keeping track of the separation of church and state in Virginia (December 7, p. 20, ll. 20-26); and the merger of equity and common law, which he explained in some detail and said he had explored from the origins of the colony of Virginia (December 7, p. 22, ll. 2-26).

He provided an intelligent and in-depth description of characters in the works of Faulkner: the female equity person and the male who represents the common law, and how they engage in “a gender drama around these… values” (December 7, p. 31, ll. 1-7). He referred to an

article he wrote on Melville, which he explained was actually a parallel to the Faulkner

article and stated, “I saw myself as thinking very like these two writers on the point of equity and the common law as cultural tensions, and I think Melville was very disquieted by the same things that concerned me” (December 7. p. 32, ll. 8-14). [ 28 ] Mr. Singleton was also able to relate complex ideas to the trial proceedings.

For example, he said: I might mention back to the Faulkner article, there was something very important in that to me which may come up in this case, even, and that is that in chancery pleadings the story, the narrative, is retold in three different ways and that is so contrary to the common law idea that there are some facts, factoids, that rubber stamp along in a line. And I myself deeply feel that those narratives are the meaning; not a bunch of rubber stamp facts thumped out.

And I mention that now because I think – I thought that during the recent voir dire where I’m apparently under scrutiny for perhaps differently wording things over a 20-year period of time. And I know in my own creative writing those narratives are supreme and to me the meaning, and so that’s an important part of the Faulkner article. (December 7, p. 32, ll. 15-32.) [ 29 ] In the course of his own testimony Mr.

Singleton also made reference numerous times to the testimony of others that he had heard during the trial and had obviously remembered in meaningful contexts: in relation to the content of the evidence of Ms. Bonderoff and Mr. Carphin (December 7, p. 52- 53, ll. 38-9); by correcting his counsel, who said Ms. Bonderoff had referred to a particular fee account in her trial evidence, when Mr. Singleton correctly recalled it as having been Ms.

Shacher (December 8, p. 39, ll. 20-24); in cross-examination he noticed that Crown counsel had made a mistake about a date and corrected him (December 15, p. 23, ll. 38-39); and in his comments that he found the testimony of Mr. Carphin “very eye-opening” (December 11 p. 31, ll. 13-17). [ 30 ] Mr. Singleton remembered factual things from years ago relating to the case.

For example, he recalled that all the legatees were notified with a copy of the Will sent out on the same day (December 7, p. 51, ll. 19-25), despite the innuendo in the Nelson Daily News to the contrary, having found proof of the same in the police documents (December 8, p. 5, ll. 16-27). He had an appreciation of the implications of Ms. Hersh’s “partial” audit on behalf of the Law Society in May 1993 based on correspondence he was shown (December 9, p. 23, ll. 24-47). [ 31 ] When he was recalled to the stand by his counsel Mr.

Singleton explained clearly how he had found additional documents relevant to his defence over the winter break (December 2009) and remembered the date when his materials had been returned to him by the Law Society (Jan. 25, 2010, pp. 19-20). [ 32 ] As previously indicated, there were times when Mr. Singleton rambled somewhat and did not recall things that one might expect that he would have. For example, Mr. Singleton said that he did not recall engaging Mr.

Dietrich to assist with the George Estate, as was clearly proven by the latter’s testimony regarding the correspondence between the two of them in 1988 and 1989. Mr. Singleton said, “I don’t, but I should have, I know,” but he did recall the evidence about Mr. Dietrich from the preliminary inquiry (December 8, p. 12, ll. 3-7). [ 33 ] At times, Mr. Singleton was alert and astute, and on occasion decidedly clever in his responses. He was able to engage in focused and appropriate repartee during cross-examination.

For example, he put it to Crown counsel that his suggestion ought to be framed as a question and he would take it as such (December 14, p. 9, ll. 30-34). In one exchange, he asked, “Well, am I addressing your comment with my comment?” to which Crown counsel responded “Yes.” Mr. Singleton then said, “It is not possible at the time that I would ever be dealing with so clearly a civil matter in every conceivable way in a criminal court. That was impossible; it has happened. That’s my comment.” [ 34 ] Mr.

Singleton’s intelligence and wit at the age of 77 was readily apparent when he was asked in direct examination what he taught at the University of Manitoba. He responded, “Well, I taught the American Revolution through British eyes, which I’m sure Mr. Shaw will charge me with fraud over because I don’t really have British eyes. So I will throw that one to him.” (December 7, p. 24, ll.5-8.) [ 35 ] It is my view that Mr.

Singleton was, at the time of the trial, clearly an elderly man who was somewhat physically frail and hard of hearing, and a man whose very considerable intellectual abilities were being affected by his gradual deterioration due to a dementia/Alzheimer’s type of illness; however, he was still very able to participate in his trial to the extent necessary to mount a detailed and comprehensive defence with the assistance of able counsel. [ 36 ] The comment by Dr. Magee about the gradual mental deterioration of a person who is extremely bright seems to aptly capture Mr. Singleton’s situation at the time of trial. Dr.

Magee said for someone with “an IQ of 140, they’re going to have to drop fairly significantly before it’s going to be apparent to most of us. If you’ve got an IQ of 80 and you start losing a few points, it’s going to become apparent much sooner.” The Case Law [ 37 ] I will now address a number of the authorities to which I have been referred.

[ 38 ] The legal issues surrounding mental capacity and the potential need for a stay were discussed by the Ontario Court of Appeal in R. v. Morrissey , 2007 ONCA 770 . In Morrissey the accused shot and killed his ex-girlfriend before shooting himself in the head, which resulted in a very serious brain injury. The defence argued that the accused’s right to make full answer and defence was fatally impaired by his incompetence to testify due to his inability to remember critical events as a result of the brain injury.

However, the Court of Appeal upheld the trial judge’s decision, concluding that the impact of his injury did not deny his constitutional right to make full answer and defence: 73 While it is likely that the appellant’s brain injury and ensuing retrograde amnesia had some impact on the manner in which he was able to conduct his defence, they have not so interfered with his ability to defend himself that it can be said that he was denied his constitutional right to make full answer and defence.

As the trial judge noted ... “s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him/her to the most favourable procedures that could possibly be imagined.” ... [ 39 ] Blair J.A. reviewed a number of authorities that discuss the effect of amnesia on relief from prosecution, at para. 40: ... while the inability of a person to recall or testify about the immediate events surrounding a crime may be a factor to be weighed in determining whether the Crown has met its onus of establishing guilt beyond a reasonable doubt, amnesia has never been considered, by itself, to be a basis for declaring the accused unfit for trial or for relief from prosecution or conviction. [ 40 ] Blair J.A. also described some of the policy reasons against granting a stay of proceedings in cases where there is memory loss as follows: 75 There are strong policy reasons for concluding that a claim of memory loss respecting the critical events in question, by itself, ought not to provide the foundation for a stay of proceedings – regardless of the cause of that disability.

For one thing, such a loss of memory is a prevalent claim (30-40% of people charged with a violent crime, perhaps more, claim to be affected by amnesia in relation to the crime). For another, it is an easy claim to make and a difficult one to disprove ... If a claim of amnesia is available to support an abuse of process application under the Charter in cases such as this, it could lead to many cases being stayed in a manner that is not in the public interest. [ 41 ] Defence counsel put forward R. v. Lindsay , [1997] O.J. No. 5464 (C. J. (Gen.

Div.)), where the accused was charged with five counts of fraud arising from events that occurred five to six years prior to trial. Mr. Lindsay applied for a stay, alleging that impairment of his memory made him unable to make full answer and defence to the charges. [ 42 ] In Lindsay , during the time between the alleged fraud and trial, the accused was diagnosed with a rare neurological condition described as a “structural brain abnormality” that caused memory loss, walking and balance disturbances, and numbness of the arms and legs. Mr.

Lindsay had neurosurgery to correct the problem, but subsequently developed a number of other symptoms. Two years later he suffered a stroke, which left him with left-sided upper and lower limb weakness, facial weakness, and slow dysarthric speech. Two years following his stroke he had two episodes of a right-side transitory ischemic attack. In addition to these physical problems, Mr. Lindsay was also suffering major depression. [ 43 ] Carnwath J. ordered a stay in Lindsay , concluding: 19 I am satisfied on the balance of probabilities that the stay should be granted.

I find this to be the clearest of cases, where to require the accused to stand trial would shock the conscious of the community and would be detrimental to the proper administration of justice. I find that compelling the accused to stand trial would violate those fundamental principles of justice which underline the community's sense of fair play and decency. I do so for the following reasons: (

a) Mr. Lindsay is in a fragile physical and mental state having been born with spina bifida, diagnosed with Arnold Chiari Malformation, undergone surgery for removal of the arterial-venule malformation, suffered a series of transient ischemic attacks beginning in 1995, followed by a major stroke in July of 1996. (

b) I accept Dr. Fulton's opinion that Mr. Lindsay's memory is substantially impaired, that he suffers from quite severe cognitive impairment, and that he is not able, in his present state, to concentrate sufficiently in order to attend to important life tasks. ... (

d) The age and nature of the charges are such that it would be particularly unfair to require Mr. Lindsay to face them. The events are now over six years old and would require the evaluation and recollection of documentary evidence. [ 44 ] Defence counsel also referred to Canada (Minister of Citizenship and Immigration) v. Fast , 2001 FCT 1269 . Mr. Fast was 91 years old at the time of the proceedings and had allegedly concealed the fact that he was a member of police services in Germany during World War II. Mr.

Fast sought a stay of proceedings on the basis that he suffered from an Alzheimer’s type of dementia, and his severe deficits in immediate and short-term memory rendered him unable to participate meaningfully in the proceedings. [ 45 ] Pelletier J. considered the expert medical evidence before the court and the scores that Mr. Fast received on five attempts at the MMSE: 16, 17, 14, 13, and 16. As a result of that evidence Pelletier J., at para. 26, found that Mr.

Fast had problems of attention and concentration, he quickly forgot information to which he had been exposed, he had difficulty in following simple conversations, he was impaired in his ability to understand what went on immediately around him, it was likely that he would deteriorate during the course of trial, and he had difficulty keeping track of a line of questioning. As a result of these findings, Pelletier J. concluded, at para. 28, that Mr.

Fast, “would be unable to participate meaningfully in the trial of the allegations against him.” [ 46 ] What I take from these authorities is that the level of impairment must be significant enough to preclude meaningful participation in the trial before a stay of proceedings is the appropriate remedy. [ 47 ] I note that the facts in Lindsay are easily distinguishable from the case at bar. While Mr. Singleton is undoubtedly suffering

from what was at the time of trial a low level dementia, his memory and cognitive abilities are not impaired to the same level as those ofthe accused in Lindsay. The cumulative effect of the numerous medical conditions and ailments suffered by Mr. Lindsay was profoundlydebilitating and therefore of far greater severity than those experienced by Mr. Singleton. [48] I note that Fast was not a criminal case, but an immigration matter. More importantly, however, is that the impairmentMr. Fast was found to be suffering from was also significantly more serious than that facing Mr. Singleton. For example, the scoresMr.

Fast received on the MMSE were consistently much lower than Mr. Singleton’s. There is no evidence before me indicating thatMr. Singleton has difficulty following simple conversations or is unable to understand what is happening around him. To the contrary,the evidence is that Mr. Singleton understood what he was asked at trial and answered appropriately. Some of his exchanges withcounsel or the answers that he provided were complex, both in terms of their language structure and their content. When Mr. Singletondigressed he was able to be reminded and then responded appropriately. Mr.

Fast was 91 years old at the time of his trial and the eventsin question had happened over 50 years earlier; Mr.

Singleton was 76 years old at the time of trial (born February 4, 1933), and theevents at issue commenced with his drawing of the Will in November 1987, and thus happened about 22 years before trial or thereafter.As a result, I do not find Fast to be of much assistance. [49] While it is useful to be reminded of the public policy considerations that may militate against the imposition of a stay in a casewhere the alleged impairment is a form of self-induced amnesia, as per the particular violent event that founds the criminal charge inMorrissey, such considerations are not relevant to the case at bar. Mr.

Singleton quite legitimately did not and could not be expected toremember everything from 22 years earlier; however, he did not make repeated claims of amnesia in relation to any key aspects of theCrown or defence case, with the apparent exception of not remembering having retained Mr. Dietrich, the accountant. [50] In conclusion, the evidence before me does not support a finding that Mr. Singleton’s s. 7 and s. 11(

d) Charter rights areviolated by the trial proceeding to a conclusion on the merits, necessitating the imposition of a judicial stay. Mr. Singleton’s gradualcognitive decline, due to a dementia/Alzheimer’s type of condition, is without a doubt occurring, but a review of the trial transcript of histestimony given over ten days makes it very clear that his ability to fully participate in this trial was not compromised to any meaningfuldegree by advancing age or mental impairment. 2. Does the delay in this case, both pre-charge and post-charge, violate Mr. Singleton’s Charter rights?

Pre-Charge Delay Introduction [51] Mr. Singleton seeks a stay of proceedings under s. 24(1) of the Charter on the basis of a breach of his s. 7 right to life, liberty,and security of person in the context of pre-charge delay. [52] Counsel for Mr. Singleton characterizes the pre-charge delay as 66 months and describes the time periods as follows: • Police failure to act between June 10, 1992 (the date Mr. Skogstad first made a complaint about Mr.

Singleton regarding asuspected theft and/or fraud regarding the Copp Estate) and August 17, 1995 (the date police sent their report to Crown counsel inrelation to the George Estate investigation) for a total of 38 months; and • Crown failure to act between August 17, 1995 (the date Mr. Skogstad first made a complaint about Mr. Singleton regarding asuspected theft and/or fraud regarding the Copp Estate) and December 30, 1997 (the date charges were laid regarding the George Estate)for a total of 28 months. General Legal Principles [53] In R. v.

Kalanj, (SCC), [1989] 1 S.C.R. 1594, the Supreme Court of Canada held that s. 11(

b) only appliesonce an Information is sworn, but in special circumstances pre-charge delay may violate s. 7 because of prejudice resulting from thedelay. However, these circumstances are very fact-specific, because, as noted by McIntyre J., “the length of the pre-information orinvestigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, a reasonable time can be readily made.” [54] In R. v.

L. (W.K.), (SCC), [1991] 1 S.C.R. 1091, the Supreme Court of Canada held that delay in charging andprosecuting an individual, without more, cannot justify staying the proceedings as an abuse of process. This is because stayingproceedings based solely on the mere passage of time would be the equivalent of imposing a judicially-created limitation period forcriminal offences. [55] In order for a pre-charge delay to result in a stay of proceedings, the accused must establish that he suffered actual orsubstantial prejudice to his right to a fair trial (R. v. D. (D.L.) (1992), (MB CA), 77 C.C.C. (3d) 426 (Man. C.A.)).

Police Investigation [56] In L. (W.K.), at 327, the Supreme Court of Canada held that in the absence of finding that the delay in apprehending theaccused had some ulterior purpose, the courts are in no position to find that the police did not proceed expeditiously enough with theirinvestigation and then impose a stay of proceedings. [57] In R. v.

Young (1984), (ON CA), 46 O.R. (2d) 520 (C.A.), the Ontario Court of Appeal held that courtscannot undertake the supervision of the operation or efficiency of police departments and then be asked to determine whether the policeproceeded as expeditiously as they should have in a particular case. Similarly, in R. v. Cleary, 2002 NWTSC 19 at para. 27, Schuler J.held that to compare cases and make judgments about which should have been given priority and why would engage the court insupervising the efficiency of pre-charge police investigative work, which is not the court’s proper function. Prejudice

[58] The degree of prejudice required to establish a breach of s. 7 has been described as, “prejudice to the defence of a significantdegree” or “prejudice of such magnitude and importance that it can be fairly said to amount to a deprivation of the opportunity to makefull answer and defence” (R. v. R.C. (1995), (ON CA), 77 O.A.C. 56 (C.A.)). [59] The prejudice alleged in pre-charge delay cases is often the loss of evidence. However, the loss of evidence, even relevantevidence, is not by itself sufficient to found a decision that the accused’s right to full answer and defence has been breached (R. v.

Grimes(1998), 1998 ABCA 9 , 122 C.C.C. (3d) 331 (Alta. C.A.)).

If the Crown has met its disclosure obligation, which it will havewhere the Crown or police took reasonable steps in the circumstances to preserve the evidence for disclosure, then the accused mustestablish actual prejudice to his right to make full answer and defence to make out a breach of his s. 7 rights on the loss of evidence (R. v.La, (SCC), [1997] 2 S.C.R. 680). [60] To stay proceedings, the trial judge must be satisfied on a balance of probabilities that the lost evidence is of such majorimportance to the defence that a fair trial cannot be had without it, or that the loss of that evidence deprived the accused of theopportunity to make a full answer and defence.

Then, only as a last resort and in the clearest of cases should a stay be granted (Grimes atpara. 25). [61] The other source of prejudice often alleged as a result of pre-charge delay is the loss of potential witnesses. However, themere possibility that missing witnesses might have given evidence favourable to the accused is not sufficient to justify a stay ofproceedings. Instead, there must be evidence of actual or substantial prejudice that resulted in a breach of the accused’s right to a fair trial(D. (D.L.) at 437).

The accused has the onus to show actual prejudice by demonstrating that the missing witness would have givenspecific evidence without which the accused would have been unable to fairly put forward his defence (R. v. Lee Valley Tools Ltd.,2009 ONCA 387 at para. 28). [62] I note, in assessing the prejudice to an accused’s right to make full answer and defence, that the accused is entitled to a trialthat is fundamentally fair, but not the fairest of all possible trials (Grimes at para. 30).

Further, the assessment concerning whether a trialis fair must be made not only from the point of view of the accused, but also the community and the complainant (R. v. Mills, (SCC), [1999] 3 S.C.R. 668 at 718). Position of the Defence [63] The position of the defence is that the 66 month pre-charge delay has caused Mr. Singleton substantial prejudice and that theonly just remedy is a stay of proceedings.

Counsel for the defence submits that pre-charge delay in this case was solely caused byinertness and inactivity on the part of the police and Crown, as the police took over two years to complete what was essentially a nineweek investigation, and then the Crown took 28 months to lay charges, a delay which was entirely unexplained at trial. [64] Counsel for the defence submits that had the police started their investigation when contracted by Mr. Skogstad in June 1992or when the Law Society contacted them in July 1993 the prejudice to Mr. Singleton would have been avoided.

He would have been inNelson, would not have moved to the United States and ended up in prison there fighting extradition, and he would have been able totestify on his own behalf unimpaired by the onset of senile dementia/Alzheimer’s. [65] In terms of specific prejudice related to the fairness of his trial, counsel for the defence submits that evidence that has beenlost or destroyed includes CIBC records (the Trust Account), Mr. Singleton’s time slips, Mr. Kluge’s file, appraisals of heavy equipment,George Estate receipts for 433 Winchester property expenditures, and other George Estate documents.

In addition, a potential defencewitness, Jim Patience, has died, and all other witnesses have a great deal of trouble remembering the events of almost twenty years ago. [66] Counsel for the defence submits that the actual prejudice caused by the delay is of such a magnitude that it is an affront to thepublic’s sense of decency and fairness, and as such a stay should be ordered. Position of the Crown [67] The position of the Crown is that the pre-charge delay was not the result of an abuse of process, or any ulterior motives or badfaith on the part of the police or the Crown.

As there is no bad faith, the defence must show actual prejudice, and the Crown submits thatthe prejudice alleged is either non-existent or insufficient to warrant the extremely rare remedy of a stay of proceedings. [68] The Crown submits that the police had limited resources and it was reasonable that they took their time determining whichpolice force would conduct the investigation regarding the alleged criminal actions of Mr. Singleton, a practicing lawyer, given theresources such an investigation could consume.

The Crown submits that it was also reasonable that the investigation of other cases tookpriority at different times. In the beginning the Law Society investigation could have ended the matter. Later, once the charges were laidand Mr. Singleton was no longer in Canada, Cpl. Misner and Sgt. Quenneville had other priorities. As a result, the Crown submits thereis no factual basis to support a finding of ulterior motives or bad faith on the part of the police in their investigation.

Without that finding,the defence is asking the Court to find that the way the police allocated their resources was inappropriate or the manner in which thepolice conducted their investigation ought to have been different, which the Crown submits is the type of supervision by the Court thatthe case law prohibits. [69] Similarly, with regard to the delay in charging Mr.

Singleton attributable to the Crown, the Crown submits that there is noevidence of ulterior motives or bad faith, and while the charges could have been approved earlier, the passage of time alone is not a basisfor a stay of proceedings, given that the defence has failed to establish substantial prejudice to Mr. Singleton’s defence. [70] The Crown submits that the specific missing witnesses (really just Mr. Jim Patience) and missing evidence, alleged to haveprejudiced Mr. Singleton, do not actually have a significant prejudicial effect in this trial. There is no evidence put before the Court tosuggest Mr.

Patience could have provided relevant evidence that has been lost or could not have been provided in a different manner.Similarly, other “missing evidence” was dealt with through the testimony of Mr. Singleton or by other means. For example, while somecheques are missing, the ledger and bank account statements provide sufficient evidence of what the cheques were, viewed in the contextof the totality of evidence heard at trial, thus resulting in no significant prejudice as a result of the missing cheques. Further, the bank

statements show the receipt of funds belonging to the George Estate and Mr. Singleton transferring them, often of the exact same amount, on the date they were received or within a day or two. [ 71 ] Additionally, the Crown relies on R. v. Sample , 2002 ABQB 57 , where Rooke J. held that where records are lost to the accused not by the delay but by the accused’s decision not to access the records or generally collect records for a defence, actual prejudice will not be established. The Crown submits that this is relevant because Mr.

Singleton admitted to having been aware he was charged criminally in relation to the George Estate by August 1998. Thus, he had ample opportunity to locate documents he wanted for his defence, particularly as he was the one who knew what those documents would be, and was in the best position to know their whereabouts. [ 72 ] As a result, the Crown submits that Mr. Singleton has not proven any prejudice to his right to make full answer and defence to the charges against him as a result of pre-charge delay, and his application for a stay of proceedings should be dismissed.

Analysis and Findings [ 73 ] I accept that pre-charge delay of 66 months in the circumstances of the present case warrants careful review. [ 74 ] I note that the initial complaint was in relation to the Copp Estate and it was only after Mr. Singleton was removed as the executor and trustee of the George Estate on May 31, 1993 that the extent of the dissipation of the George Estate funds became known. A criminal investigation of Mr. Singleton’s conduct of the George Estate was not recommended to the RCMP until July 26, 1993.

This effectively reduces the amount of pre-charge delay in relation to the George Estate charges by 13 months to 53 months. [ 75 ] While no one can accuse the police or the Crown of moving with particular dispatch to investigate and then to charge Mr. Singleton in relation to the George Estate, the evidence before me does not support any findings of ulterior motive or bad faith to be attributed to them. When one considers the involvement of the Law Society staff (who were initially slow to respond to indications that Mr.

Singleton was not wrapping up his practice in an acceptable manner), it seems reasonable that the Law Society would conduct its spot-audit of Mr.

Singleton’s former law practice in the spring of 1993 before recommending to the police that a criminal investigation be commenced in relation to the George and Copp estates, which the Law Society did on July 26, 1993. [ 76 ] Theoretically, from the point of view of the police, it was just as likely that once the Law Society had completed its audit all would have been found to have been in order, or at least that a criminal investigation was not warranted, and there would have been no need to expend resources on a police investigation. However, the evidence of the police (Cpl.

Misner, and to a lesser extent of Sgt. Haddow) is that they did not deliberately delay their investigation to accommodate the completion of the civil law suits or to accommodate the Law Society. It is my assessment that the police were slow to get started for more mundane reasons, namely that resources to investigate such a potentially complex matter were an issue, other cases had priority, and the Nelson City Police needed the expertise of the commercial crime unit of the Nelson RCMP, provided by Cpl. Misner, to undertake such a potentially complex investigation. [ 77 ] The evidence of Sgt. Haddow and Cpl.

Misner makes it clear that their time and other resources were limited and they got to the Singleton investigation when they could, with the bulk of the investigation being conducted between November 1994 and the spring of 1995, and culminating in the report to Crown counsel being submitted on August 17, 1995. The police testimony indicates, as well, that they waited for over 28 months for Crown counsel to get back to them in relation to whether charges would be laid.

Such a delay in other circumstances might well raise serious concerns as to the efficiency of the office of Crown counsel, but in the present case there is no evidence before the Court about why that delay occurred, except that Cpl. Misner noted that he received a call from Mr. Butterfield, Crown counsel in Nelson, on December 4, 1997 that his report was being sent to the Vancouver Commercial Crime Office.

Shortly thereafter charges were approved by the Crown in relation to the George Estate. [ 78 ] The law is clear that it is not for the Court in these circumstances to determine the priorities or efficiencies of police investigations. Nor it is appropriate for the Court to review the level of efficiency of the Crown office, particularly without any evidence as to what steps were or were not taken and when. [ 79 ] In this regard I note the recent decision of R. v. Darwish , 2010 ONCA 124 .

In Darwish an accused charged with theft and fraud requested that the Crown obtain a full and independent forensic audit covering the entire period of his employment, during which it was alleged he had committed the offences. Crown and defence were unable to agree on the scope of the audit. Ultimately, the Crown obtained a further audit covering a two-year period. On a pre-trial motion the trial judge stayed the charges against the accused for a violation of his right to make full answer and defence, as a consequence of the Crown violating its duty to investigate by not obtaining the requested audit.

The Court of Appeal overturned the stay and ordered a new trial. The Court of Appeal held that the right to full answer and defence does not include the right to an adequate investigation. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right, or to a civil remedy; however, those inadequacies do not in and of themselves constitute a denial of the right to make full answer and defence ( Darwish at para. 29 ).

While the right to disclosure may sometimes require the Crown to assist the accused in obtaining records in the hands of third parties, it does not oblige the Crown to carry out investigations that may assist the accused. Further, the Crown, in its role as representing the Minister of Justice, ought to give careful consideration to concerns raised by an accused when there are potentially meritorious allegations of state misconduct in the course of an investigation, and has a duty to investigate those claims.

Otherwise, as in the present case, the adversarial nature of the system governs, and provided the Crown does not act with improper motives, the decision as to what steps to take rests with it. [ 80 ] Therefore, absent evidence of bad faith or ulterior motives on behalf of the police or the Crown to delay or otherwise subvert the timely investigation into Mr.

Singleton’s alleged criminal conduct in relation to the George Estate, it is not for this Court to speculate or opine on the timing and manner of police investigation or why it took the Crown 28 months after receipt of the report to Crown counsel to approve the George Estate charges against Mr. Singleton. Prejudice [ 81 ] It is, however, for the Court to assess prejudice in the context of pre-charge delay. Prejudice may, in cases of significant

prejudice to the defence or where the prejudice is of such magnitude and importance that it deprives an accused of the opportunity to make full answer and defence, violate s. 7 of the Charter and warrant the imposition of a judicial stay. [ 82 ] Defence counsel submits the pre-charge delay caused real and significant prejudice to Mr. Singleton in several ways. [ 83 ] First, had Mr.

Singleton been charged sooner he would still have been living in Nelson and could have answered to the charges prior to relocating and establishing a life in the United States, thereby avoiding arrest and involvement in the extradition proceedings. He also would have avoided the deprivation of his liberty by being incarcerated. [ 84 ] Generally, expeditious police investigations and the prompt laying of charges are seen as positive indicators of the proper administration of justice. One may say had Mr. Singleton been charged earlier it is more likely he would have still been in Nelson.

However, I note on the evidence before me that he left for Nocona, Texas in August 1993 because of his mother’s death, returned briefly over Christmas 1993, and then returned to the United States and stayed there from early 1994 onwards. Given that Mr.

Singleton had just been removed as executor and trustee of the George Estate on May 31, 1993, and the Law Society recommended to the police an investigation of the George and Copp estate matters on July 26, 1993, even the most prompt and effective police investigation and review by Crown counsel would not likely have resulted in the laying of criminal charges by the end of August 1993 or even early 1994. In any event, this submission is hypothetical and assumes that Mr. Singleton would have chosen to remain within the jurisdiction once he realized he was being investigated criminally. [ 85 ] Dr.

Magee places the likely time of onset of Mr. Singleton’s dementia/Alzheimer’s as two to five years prior to September 2008. He may have been free of that affliction as early as 2003 and as late as 2006. However, nothing turns on this, as I find that his mental deterioration did not compromise his right to a fair trial. [ 86 ] Second, the defence submits that as a result of the pre-charge delay important evidence was lost by virtue of witnesses who have died or otherwise become unavailable, or documents became unavailable with the passage of time.

I will deal with the specific items referred to when I address the issue of prejudice in relation to post-charge delay. However, at this point I simply say, based on my detailed knowledge of the evidence at trial, including the literally thousands of documents that comprise the 260 exhibits, of which all but a handful were admissible both at trial and in relation to the Charter applications, that no clear case for significant prejudice has been made out – either in relation to lost witnesses (which is reduced to one, Mr.

Jim Patience) or lost or missing documents. [ 87 ] I also note that the evidence shows that in this same period of time, 1993 to the end of 1997, Mr. Singleton did not take sufficient care to preserve his practice papers, given that approximately eight boxes of them were collected by Mr. Thompson in October 1996 after they were found by Mr. Markin in the basement of the building where Mr. Singleton’s former law office was located. By 1996 Mr. Singleton had been gone from Nelson for approximately two and a half years.

The practice papers included many documents in relation to the George Estate and related matters, which came to be seized by the police pursuant to a search warrant and tendered in evidence at this trial. [ 88 ] On the evidence before me I do not find evidence of significant prejudice caused by pre-charge delay. Conclusion [ 89 ] The pre-charge delay period in this case is comprised of 53 months. Absent significant prejudice, prejudice of a quality and magnitude that it amounts to a deprivation of the right to make full answer and defence, a judicial stay is not warranted.

I find no such prejudice has been established. It does not support the imposition of a stay. Post-Charge Delay Introduction [ 90 ] Mr. Singleton also applies for a stay of proceedings under s. 24(1) of the Charter , by reason of a violation of his s. 11(

b) right to be tried within a reasonable time, based on post-charge delay occurring from the time he was charged in relation to the George Estate to the time of the trial. [ 91 ] Defence counsel characterizes the period of post-charge delay as 146 months, and describes the time periods as follows: • Police failure to act from December 30, 1997 (when the charges were laid regarding the George Estate) to October 2002 (when Sgt. Quenneville learned of the Peck, Kansas post box as a mailing address for Mr.

Singleton through his daughter) for a total of 58 months; • Delay in seeking extradition from October 2002 to August 30, 2004 (when Mr. Singleton was arrested on the extradition warrant) for a total of 23 months; • Extradition delays from August 30, 2004 (date of extradition arrest) to August 30, 2006 (the date the surrender order was signed and Mr. Singleton was returnable to Canada) for a total of 24 months; • Disclosure delay from September 2006 (Mr.

Singleton was back in B.C. and released on bail) to approximately June 2009 (when disclosure applications were complete and disclosure was made) for a total of 34 months; and • Delay to end of trial, July 2009 - February 2010, for a total of 7 months. [ 92 ] Defence counsel made reference to a detailed chart that he put up in the courtroom that showed the long periods of inactivity by the police and the Crown, which caused prejudice to Mr. Singleton. He submitted that with each passing year more bank records were destroyed, documents went missing, and people who had dealings with Mr.

Singleton and the District Lot passed away or became unavailable. Furthermore, the memories of witnesses faded and Mr. Singleton became older and less mentally agile.

[ 93 ] Crown counsel attributes the various time periods of post-charge delay somewhat differently and as follows: • To “other” causes from December 30, 1997 (the date the charges were laid regarding the George Estate) to August 5, 1998 (the date the charges were laid regarding the Copp Estate); • To the accused from the end of August 1998 (when Mr. Singleton was in touch with Mr. Kluge about the outstanding charges and considering when and whether he would return to B.C. to deal with them) to August 30, 2004 (date of his arrest on the extradition warrant), a period when Mr.

Singleton knew about the charges and chose not to return to Canada in order to delay or avoid this prosecution; • To the accused from August 30, 2004 (date of the extradition arrest) to September 2, 2006 (the date the surrender order was signed), a period when Mr.

Singleton chose to fight his extradition to Canada and remained in custody in Kansas; • To inherent time requirements from September 2, 2006 to September 25, 2006 (bail hearing and disclosure of police reports); from September 25, 2006 to November 14, 2006 (defence adjournment request); and from November 14, 2006 to December 5, 2006 (defence adjournment request); • To both inherent time requirements and the accused from December 5, 2006 to January 26, 2007 (defence adjournment request to decide what documents still seeking); • To the accused from January 26, 2007 to February 19, 2007 (defence adjournment to apply for materials from the Law Society); • To the accused from February 19, 2007 to April 3, 2007 (defence not ready to arraign, seeking Law Society material and civil transcripts); • To the accused from April 3, 2007 to April 18, 2007 (defence adjournment request); • To the accused from April 18, 2007 to July 3, 2007 (election taken but defence could not arraign, adjournment because defence received a box of material from the Law Society, and defence counsel dismissed); • To inherent time requirements from July 3, 2007 to July 10, 2007 (Mr.

Singleton needed time to review further documents recently sent by the Crown); • To the accused from July 10, 2007 to October 24, 2007 (Mr. Singleton considering re-election, and requested adjournment for pre- trial applications); • To the accused from October 24, 2007 to November 7, 2007 (applications to quash theft counts and for disclosure dismissed, Mr. Singleton refused to elect on the “C Information,” and Sperry Prov. Ct. J. advised there was to be a deemed election on November 7 if Mr. Singleton still refused); • To the accused from November 7, 2007 to November 15, 2007 (Sperry Prov. Ct.

J. not able to sit because Mr. Singleton made a complaint to the Chief Judge about his conduct); • To the accused from November 15, 2007 to February 12, 2008 (Mr. Singleton attempted to appeal the orders of Sperry Prov. Ct. J. from October 24, 2007); • To the accused from February 12, 2008 to March 17, 2008 (Mr.

Singleton abandoned his appeal but has filed applications under the Bill of Rights , his election for trial in the Provincial Court is taken, but case is adjourned to fix trial dates); • To institutional delay from March 17, 2008 to March 31, 2008 (trial dates could not be fixed because the Judicial Case Manager needed to arrange for an out-of-town judge); • To inherent time requirements from March 31, 2008 to September 29, 2008 (trial dates set commencing September 29, 2008 in Provincial Court); • To inherent time requirements from September 29, 2008 to October 8, 2008 (Mr.

Singleton re-elects to have a preliminary inquiry instead of a trial with new defence counsel Mr. McGee, after an unsuccessful application to adjourn the trial); • To inherent time requirements from October 8, 2008 to November 7, 2008 (from committal to fix dates for Supreme Court trial); and • Explicit waiver from November 7, 2008 to February 12, 2009 (from fix date for Supreme Court trial to the conclusion of the trial). [ 94 ] The Crown calculates the total post-charge delay to be 12 years, 1 ½ months. This breaks down to 1 year, 3 months waived; 9 years, 1 month attributable to the actions of Mr.

Singleton; 1 year, 2 months attributed to the inherent time requirements of the case; half a month attributable to institutional delay; and 7 months attributable to other reasons. [ 95 ] The Crown submits that Mr. Singleton was responsible for the majority of the delay through his actions, including leaving Canada, staying in the United States, and fighting his extradition. The Crown also submits that Mr.

Singleton has suffered no prejudice as a result of the delay and that a stay of proceedings is not warranted on the facts. [ 96 ] In my view this is not a post-charge delay Charter application that turns on the characterization of several months or even a period of a year. Rather, the main issue is how to characterize the time Mr. Singleton spent in the United States after he knew the charges in relation to the George and Copp estates had been laid and warrants issued for his arrest. The time at issue is a period of eight years, six years from August 1998, when Mr.

Singleton knew of the charges, to the date of his arrest on the extradition warrant on

August 30, 2004, followed by the two years he spent in the United States in custody resisting his extradition to Canada. The Evidence [ 97 ] In

Part 1 I set out the evidence on the issue of delay generally, and in particular, the defence evidence of Mr. Singleton, which in terms of his whereabouts in the United States at particular times, is corroborated and supplemented by the testimony of his sister, Ms. Hill. [ 98 ] Very briefly, and before I turn to some specific points in Mr. Singleton’s cross-examination at trial regarding his this application, I will set out where Mr.

Singleton was and what he was doing from when he left Nelson in August 1993 until he was arrested on the extradition warrant in Wichita, Kansas on August 30, 2004. [ 99 ] On May 6, 1993 Mr. Singleton was in Nelson and signed an undertaking to appear in relation to the income tax charges. He indicates that he left Nelson in late August 1993 and went to Nocona, Texas because of his mother’s death and returned briefly over the Christmas season in late 1993. In early January 1994 he went back to Nocona, where he assisted in caring for his father until he went to work on the wheat harvest.

Following the ripening of the wheat and the harvest is apparently considered a romantic odyssey in the southern central states of the U.S., and Mr. Singleton travelled, combining grain, throughout several states during in the summer and fall of 1994. He got a South Dakota driver’s licence (bearing his own name) in October 1994, with a post box address (someone else’

s) in Claremont, South Dakota. Thereafter, he travelled about in the blue van he bought during the wheat harvest that had South Dakota plates, and spent time parked near a river on the Texas border writing books. [ 100 ] Mr. Singleton indicated that by early 1995 he was in Wichita, Kansas. In February 1995, at age 62, he started receiving American social security benefits. He did odd jobs until April or May 1995 when he got a job at a welding shop where he worked for about a year and a half until he injured his hand, leading to a finding of permanent disability.

He did some re-training at the Wichita State University. In early 1997 Mr. Singleton started part-time work at nearby Butler College in the library. He lived in rented accommodation at an address on Pattee Street in Wichita. He began to teach again part-time at Butler College. [ 101 ] Mr. Singleton said he was listed on the internet as on staff at Butler College in the Wichita area of Kansas from January 1997 onwards, and he was not charged with the offences relating to the George Estate until December 30, 1997. [ 102 ] In the summer of 1998 Mr. Singleton engaged in the correspondence with Mr.

Kluge to endeavour to determine the status of the criminal charges outstanding against him in Nelson. He considered returning to Canada to deal with them, but did not. Mr. Kluge expressed his opinion that extradition proceedings were only done in the most serious of cases because of the great cost and logistics involved. He indicated that as steps to extradite Mr. Singleton had not been taken by that point he doubted very much that they would be taken in the future. [ 103 ] Mr. Singleton obtained a Kansas driver’s licence (in his own name) on December 14, 1999, bearing the Peck, Kansas postal box address.

He continued to live in Wichita and work and teach part-time at Butler College, until he was arrested on the extradition warrant on August 30, 2006, albeit in the later years while living in different rental accommodation in North Wichita, and having a phone number listed in the name of another. It is his position that throughout the period of 1998 to 2004 all the Canadian police had to do to locate him was engage in the most basic of searches. [ 104 ] The evidence of Cpl. Quenneville, and to a lesser degree the evidence of Sgt. Haddow and Cpl. Misner (as set out in

Part 1), includes the history of the police investigation, their efforts to find Mr. Singleton, and when they were able to locate him. Cpl. Quenneville made some efforts in the fall of 1998 that were not fruitful, and then resumed his search in October 2002, having spent the intervening years on other cases. Once Cpl. Quenneville located Mr. Singleton’s daughter and spoke to her, he obtained the address of the post office box in Peck, Kansas, which permitted him to find that Mr. Singleton had a Kansas driver’s licence bearing the same address. After some delay in communicating with Cpl.

Paradis in Washington D.C., the latter, in the spring and summer of 2003, confirmed Mr. Singleton’s whereabouts in Kansas, specifically his receipt of social security, his employment at Butler College, and his residential address in North Wichita. At that point Cpl. Quenneville started working on his extradition affidavit. [ 105 ] Mr. Singleton was cross-examined regarding aspects of his testimony touching on his Charter application, and provided the following evidence: • In relation to various comments that Mr. Singleton made in his letters to Mr.

Kluge regarding a “negotiated confinement,” he said that he had “no idea” what he meant, and “no idea” if that was in relation to a possible plea bargain in relation to the present charges. • Regarding the following comments in his letter of July 10, 1998 to Mr. Kluge: I need to know if possible the imminence of process and type as to my plan – as to plan my moves. I have given notice at lodgings and will in eight days give notice at Com Coll and become greatly more obscure … • Asked if his reference in the same letter to “process” referred to an arrest warrant, Mr. Singleton said: I don’t see that at all.

I might have to return to Canada. That’s what was my understanding of what I was talking about here. … …and I intended at that time to give notice at the Community College, but also to upon his assurances, which I finally retained, I didn’t – I was no longer – all that advice fell together and – … Later assurances from counsel, Mr. Kluge, on what the Nelson counsel had said their intentions were, to leave matters under my timing,

which enabled me to continue teaching for six or seven more years from this date, which is what I did. (December 16, pp. 39-40, ll. 24-28.) • As to how returning to Canada would cause him to become “greatly more obscure,” Mr. Singleton said: Well, it – until I got going, I would want that to be voluntary and would – unless I received the assurances I did receive - …I would have made sure that I myself was the one who returned me there, and that – because I understood throughout that one of the things you did not want was to be extradited.

So I was not going to expose myself to extradition if I could help it. (December 16, p. 40, ll. 41-46.) • When asked if he was prepared to become “greatly more obscure” to avoid extradition, he responded, “Well, it was going to take time, a certain amount of time to move up there. This was – yes.” (December 16, p. 41, ll. 5-6.) • However, Mr. Singleton indicated that he relied on the assurances he received from Mr.

Kluge and never had to become more obscure, indicating that he lived “in a gold fish bowl” and could have been contacted up to a year and a half prior to this time by searching for his name on Google. • When asked about why he did not return to Nelson to deal with the trials regarding the income tax charges against him, 433 Winchester and Silvertip 1000, on August 16, 1994, Mr. Singleton indicated that his priority during the time of the wheat harvest was to earn a living, he had no knowledge of the date, and he “simply did not” return.

When asked why he did not follow up with a lawyer to find out the date set for trial, he said, “I neglected to do so, negligence, sheer negligence, culpable negligence.” (December 16, p. 58, ll. 42-43.) • When asked about Mr. Jim Patience’s involvement and the timber cruise in relation to the District Lot (of potential relevance to Mr. Singleton’s claim that the purchase of the District Lot was permitted under the Trustee Act ), it appears from Mr. Singleton’s answers that there may have been more than one timber cruise.

He agreed that the important one was the initial one in connection with his purchase of the District Lot, of which he had a faint memory being done by someone named “Horcroft.” • Mr. Singleton agreed he knew by 1993 that his conduct of the George Estate and the income tax matters, particularly in relation to 433 Winchester, were an issue. In March 1993 he rented storage space at 12 Mile Storage where he intended to put his practice papers, and believed that they had been moved there, except that the movers missed some (as found in 1996 by Mr. Markin and picked up by Mr.

Thompson, some of which were then placed in the Craven box and seized by police). He indicated that his friend, Beth Brock, paid for the storage. When asked if he had called her and asked her to access it, would she have been able to do so, he said he had “no knowledge” of her being able to access it, but agreed that he did so upon his return in 2006. When it was put to Mr.

Singleton that he could have returned to Nelson any time after 1994 to secure a document or to speak to someone about these events, he indicated that he had different priorities like “subsistence, staying alive” and “employment” and he, “didn’t spend a vast amount of time speculating on yet another trip back up to Nelson …” (December 16, pp. 65-67.) • In relation to why and how Mr.

Singleton might have returned to Canada sooner to deal with the outstanding criminal charges the following exchange occurred: Q I understand your answer earlier to be that you had no means of returning to Canada, and I’m suggesting to you the van was one such means if you desired to return to Canada. A Well, the van - some such means – that is so general I hardly know what to say. Q Well – A One such mean – yes, I could have raced up here and done what? What? Q You could have, one, dealt with these charges. Two, secured the evidence that you required for your defence.

A Sir, I have taught the history of – constitutional history at Manitoba, which I understood. I had some sense of the Charter , the first

section of that, as a Canadian citizen I have the right to leave Canada, and I don’t have to answer to anyone. The Crown has the right, if they wish to do so, to come and get me and extradite me at any time they wish. Now, if you think I’m just going to run around and jump into things at other people’s timing, you are not sensing what I understood to be my rights under the Charter , under s. 6(1). [Emphasis added.] [ 106 ] In my view, the evidence is clear that Mr. Singleton could have been located earlier by the RCMP or their contacts via Cpl.

Paradis in Washington, D.C. if they had known generally where to look. If the police had contacted Mr. Singleton’s daughter earlier, and if she possessed and was prepared to provide the information about her father’s mailing address at the Peck, Kansas postal box, their search would have had a focus. Perhaps they might have found him on the internet. However, these are just possibilities. [ 107 ] On the other hand, there is every indication that Mr. Singleton was living under his own name, receiving social security, and openly working at Butler College.

It would not have taken much time or creativity for the police to consider that Mr. Singleton might have returned to teaching in a post-secondary institution in the United States, employment he had pursued for much of his adult life, save for his time as a lawyer.

[108] However, what is also clear is that Mr. Singleton had no intention of returning to Nelson to face the charges outstanding againsthim until the timing suited him and he was ready to do so. Had he thought extradition was being pursued I accept based on his letter toMr. Kluge that he would have taken steps to make himself “greatly more obscure.” He would have done his best to avoid extradition.Given his evidence, including the portion I have emphasized above, it seems he was at best ambivalent about being tried in a reasonabletime. General Legal Principles [109]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time.The only remedy available for a breach of s. 11(

b) is a judicial stay of proceedings (R. v. Guilbride, 2006 BCCA 392 at para. 95). [110] The purpose of s. 11(

b) was discussed in R. v. Morin, (SCC), [1992] 1 S.C.R. 771 at 786-787. Sopinka J.identified the primary purpose of s. 11(

b) as the protection of three individual rights of the accused: the right to security of the person,which is protected by seeking to minimize the anxiety and stigma of exposure to criminal proceedings; the right to liberty, which isprotected by seeking to minimize exposure to the restrictions on liberty that result from pre-trial incarceration and restrictive bailconditions; and the right to a fair trial, which is protected by attempting to ensure that proceedings take place while evidence is availableand fresh. [111]

Section 11(

b) also seeks to protect two societal interests: that those accused of crimes are treated fairly and ensuring that thosewho transgress the law are brought to trial and dealt with according to law. [112] With regard to when a delay can be considered unreasonable, Sopinka J. held, at 787-788, that it is not by application of amathematical or administrative formula that this can be determined, but by a balancing of factors. The factors to be considered aredescribed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. The Morin Factors and Analysis and Findings [113] The examination of the post-charge delay must be conducted by examining the factors in Morin. [114] The analysis of whether a delay is unreasonable is fact driven and case specific. The weight to be given to the various factorsand the individual and societal interests will vary from case to case (Guilbride at para. 120). Each of these factors was discussed bySopinka J. in Morin, and has received further clarification in subsequent jurisprudence.

I will briefly discuss each of the factors in thecontext of the present case, having considered the submissions of the Crown and defence, and then set out my findings. 1. The Length of the Delay [115] This factor requires the court to examine the period from the charge to the end of the trial.

Pre-charge delay may, in certaincircumstances, have an influence on the overall determination as to whether post-charge delay is unreasonable, but of itself it is notcounted in determining the length of delay in this factor (Morin at 789). [116] In the case at bar, the defence submits and the Crown concedes that the post-charge delay amounts to 12 years, 1 ½ months, orjust less than 146 months, which, on its face, is excessive and warrants inquiry. I agree. 2.

Waiver of Time Periods [117] The Supreme Court made it clear that if by agreement or other conduct the accused has waived in whole or in part his rights tocomplain of delay then this will either dispose of the matter or allow the period waived to be deducted. However, that waiver must be,“clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have onthose rights” (Morin at 790). [118] While waiver must be unequivocal, it may be explicit or implicit.

However, if the waiver is said to be implicit, the conductmust be such that it gives rise to an inference that the accused has understood that he or she had a s. 11(

b) guarantee, understood itsnature, and then has waived that right (Morin at 790). [119] If there is conduct of an accused that does not constitute waiver because of a lack of appreciation for what that conductsignifies, that conduct does not constitute waiver. However, that action can be considered under the factor of, “actions of the accused”(Morin at 790).

[120] In the case at bar, the defence submits that Mr. Singleton, through his counsel, waived a period of one year and three monthsfrom November 7, 2008 to February 12, 2010 (the last day of this trial). This leaves a period of 133 months of post-charge delay that,according to the defence, is not attributable to Mr. Singleton. [121] It was a point of contention in the trial whether when Mr. McGee became counsel in September 2008 he waived delay fromSeptember 2006 to that date, or whether his expression of waiver was contingent on receiving the adjournment he sought and did notreceive on September 3, 2008. The Crown resiled from its former position that approximately two years prior

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