R. v. N.J.S., 2013 BCSC 2513

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. N.J.S., 2013 BCSC 2513 Date: 20131212 Docket: 146983-2; 146983-4 Registry: Victoria Regina v. N.J.S. Restriction on Publication: Pursuant to s. 486.4(1) & 486.5(1) C.C.C.; Inherent Jurisdiction Corrected Judgment: The second docket number wascorrected on May 26, 2014. Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgmentre: s. 11(

b) Charter Application Counsel for the Crown: R. PichaCounsel for the Accused: B. JohnsonPlace and Date of Trial/Hearing: Victoria, B.C. November 25 - 28, 2013Place and Date of Judgment: Victoria, B.C. December 12, 2013 [1] THE COURT: In the spring of 2009, the Saanich Police Department began investigating the potential misuse of the internetwebsite “Craigslist Victoria” for the purpose of illegally obtaining the sexual services of minors. As part of their investigation, on14 April 2009 the police posted the following advertisement on the “Erotic Services”

section of Craigslist: YOUNG and FRESH - w4m - 19 (Victoria) We have the youngest girls. Small tight bodies. These girls are new but willing to please. New to Vic, in town today only. Discret (sic)incall location close to town. Send back for rates and times. [2] There were many responses to the advertisement, but only two individuals followed through and met with an undercover policeofficer who was posing as the girls’ handler or Madam. The first individual was the accused. The second was an individual namedChiang.

Both were eventually charged with communicating for the purposes of obtaining for consideration the sexual services of aperson under the age of 18 years, contrary to s. 212(4) of the Criminal Code. Mr. Chiang’s trial, which has already occurred, resulted in aconviction (see: R. v. Chiang, 2010 BCSC 906, aff’d 2012 BCCA 85). [3] The accused's 10-day trial before a Supreme Court judge and jury is set to commence in February of next year.

By way ofnotice of application filed 19 November 2013, the accused seeks a judicial stay of proceedings pursuant to s. 24(1) of the CanadianCharter of Rights and Freedoms based upon an alleged violation of his s. 11(

b) Charter right to be tried within a reasonable time. Governing Legal Principles [4]

Section 11(

b) of the Charter guarantees an accused the right to have his or her trial within a reasonable time. [5] In R. v. Morin, (SCC), [1992] 1 S.C.R. 771, Mr. Justice Sopinka confirmed that s. 11(

b) serves to protect twodistinct interests. The first is an accused’s right to security of the person, liberty, and a fair trial. At page 786 Justice Sopinka explained: The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) theright to a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while

evidence is available and fresh. [6] Protecting the interests of society as a whole is the second purpose of s. 11(b). Justice Sopinka described this interest at pages786 and 787 of Morin: The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that theleast fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy theconfidence of the public. As observed by Martin J.A. in R. v. Beason, (1983), (ON CA), 36 C.R. (3d) 73 (Ont.

C.A.): "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and,indeed, to the ultimate benefit of the accused ..." (p. 96). In some cases, however, the accused has no interest in an early trial andsociety's interest will not parallel that of the accused. There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Courtrecognized that the interests of the accused must be balanced by the interests of society in law enforcement.

This theme was picked up inAskov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial anddealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accusedbe brought to trial.

The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accusedof serious crimes simply to clean up the docket. [7] Determining whether a delay is unreasonable does not simply entail a piecemeal mathematical accounting of the time it hastaken to bring a matter to trial.

Instead the court must perform a multi-step judicial balancing of the two interests protected by s. 11(b).This analysis incorporates a consideration of the following four distinct factors (Morin, at pp. 787 - 88): 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) the inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) the limits on institutional resources, (

e) other reasons for delay; and 4. prejudice to the accused. [8] In R. v. Ghavami, 2010 BCCA 126, Mr. Justice Donald and Madam Justice Huddart, speaking jointly for a unanimous court,explained the assessment and balancing of the Morin factors at paragraphs 52 and 53: [52] In our view, balancing makes sense only if weight is attributed to the causes of delay. Inherent time requirements should receivelittle if any weight, because they are not attributable to either the state or the accused, and because some delay is inevitable.

Actual orinferred prejudice to the accused will be accorded a certain weight, but it may be counter-balanced by delay caused or contributed to bythe deliberate actions of the defence. Correspondingly, if the organs of state – Crown, justice system, or judiciary – are responsible forsome part of the delay, then the public interest will be entitled to less weight when balanced against the accused’s right to a timely trial,because the protectors of the public interest have failed to live up to the standard expected of them.

However, institutional and judicialdelays will be accorded less weight than delays actually within the scope of the Crown’s ability to expedite proceedings, because theyare not the result of voluntary Crown action. [53] By deliberately assigning relative weight to the different causes of delay and balancing them against one another, the judicialreasoning process becomes transparent.

Although balancing will inevitably be fact-specific and contextual, it is important that the court’sreasoning process not be opaque, so that the accused, the Crown and the public are able to identify why or not a particular delay isunreasonable. Chronology of Events [9] The relevant chronology of events for this case can be set out as follows: Arrest and Charge 14 April 2009: The alleged offence date. The accused was arrested and released later that day on an undertaking given to an officerin charge. 21 May 2009: The Information charging the accused was sworn.

Proceedings in Provincial Court 29 May 2009: The accused’s first appearance in Provincial Court.

Counsel for the accused, not Mr. Johnson, appeared on behalf of the accused, pursuant to a counsel designation form. Crown counsel provided the defence with particulars of the alleged offence. Counsel for the accused requested an adjournment to 5 June 2009. 5 June 2009: Fix date. Crown counsel provided further particulars to the defence. The accused elected trial by Supreme Court judge and jury, preceded by a preliminary inquiry. The matter was adjourned to 26 June 2009, so that the Crown and the defence could discuss the time requirements for the preliminary inquiry. 26 June 2009: Fix date.

Counsel for the accused informed the court: The original purpose was to fix a date today, and unfortunately I guess I've un -- I've failed to communicate my concerns about a preliminary hearing to the prosecutor, and I'd like to put it over till July the 8th so that I can satisfy that requirement. The matter was adjourned to 8 July 2009. 29 June 2009: Accused’s counsel wrote to Crown counsel suggesting that three days be set aside for the preliminary inquiry. 8 July 2009: Fix date. The preliminary inquiry was set for 2 and 3 March 2010. 31 August 2009: Interim appearance.

The accused applied to vary the condition of his bail that prohibited him from leaving British Columbia. Crown counsel consented to the application. The application was granted. The new condition of bail allowed the accused to leave the jurisdiction with the permission of his bail supervisor. 1 February 2010: Trial Confirmation Hearing. The preliminary inquiry dates were confirmed. 2 March 2010: First day of the preliminary inquiry. The evidence was completed, submissions were made, and the accused was committed to stand trial.

Proceedings in Supreme Court 3 March 2010: The accused’s first appearance in Supreme Court. The Indictment was filed. Counsel for the accused indicated the defence might be raising a number of Charter arguments and estimated that four days would be necessary to complete the trial. The court suggested seven days would be more appropriate to conclude the matter. The defence maintained five days would be sufficient. The following discussion took place between the court and counsel for the accused: THE COURT: Well, I am happy to set it down for seven, if you think that's useful, but -- MR.

CHRISTIE: No, I quite frankly think that five [days] would be sufficient. . . . MR. CHRISTIE: And I don't anticipate needing other witnesses besides the two that were called [at the preliminary inquiry]. The week of 25 October 2010 was offered for the trial, but the Crown was not available [the “First Available Trial Date”]. A trial date was set: Jury selection on 1 November 2010, immediately followed by 5 days of trial [the “First Trial Date”]. 5 March 2010: Crown counsel, not Ms.

Picha, contacted counsel for the accused to inform him that he had been mistaken when he indicated on 3 March 2010 that he was available to conduct the trial during the week of 1 November 2010. Crown counsel requested the trial be adjourned to another date. The trial was adjourned, with the consent of the accused, to 29 November 2010 [the “Second Trial Date”]. The jury selection date remained scheduled for 1 November 2010. 13 October 2010: The accused filed a constitutional notice seeking a declaration that s. 212(4) of the Code breaches s. 2(

b) and 2(

d) of the Charter , and is of no force and effect. 14 October 2010: Pre-trial conference. In light of the pending constitutional challenge to the validity of s. 212(4) and the defence's position that the issue needed to be determined in advance of the trial, the Crown and the defence agreed to adjourn the jury selection to 29 November 2010.

In the meantime, counsel agreed to confer on the time requirements for any additional pre-trial applications so that the issue could be addressed with the trial judge at a future pre-trial conference. 21 October 2010: The parties were advised by the Trial Manager’s office that a trial judge had been appointed and a pre-trial conference was scheduled for 2 November 2010. 2 November

2010: Pre-trial conference. The defence informed the court that, in addition to the constitutional challenge to s. 212(4), there would be two other pre-trial voir dires to address:

i) the defence’s objection to the admissibility of certain emails in the possession of the police, on the grounds that their prejudicial effect outweighed their probative value; ii) the defence’s desire to challenge for cause to the potential jurors, pursuant to s. 638(1)(

b) of the Code. Counsel for the accused confirmed that aside from the three identified pre-trial voir dires , there would be no other pre-trial motions or challenges, including anything relating to the accused's conversation with the undercover police officer. Given the time requirements needed to address the three identified pre-trial issues, the Crown and defence agreed to adjourn the trial and use the week of 29 November 2010 for the pre-trial arguments. 29 November 2010: The start of voir dire Number 1 (Admissibility of the email correspondence - prejudicial effect vs. probative value).

During this hearing, counsel for the accused informed the court he also wished to challenge the admissibility of the emails and the accused's conversation with the undercover police officer on the ground that the accused's s. 7 Charter rights had been breached. The court informed the defence that it must file and serve an appropriate notice of application setting out the particulars of the alleged Charter breach prior to the issue being addressed. 30 November 2010: Ruling on voir dire Number 1: the emails were ruled admissible. The start of voir dire Number 2 (challenge for cause).

The hearing was completed and the decision was reserved. 1 December 2010: The start of v oir dire Number 3 (the timing of the constitutional challenge to s. 212(4)). During this hearing, the defence again informed the court that it would be making a new application to have the emails and the conversation with the undercover police officer excluded from evidence because of an alleged s. 7 Charter breach. The Crown and the defence agreed to

schedule the new voir dire Number 4 for 28 February and 1 March 2011, and to adjourn voir dire Number 3 to that same date for continuation. 10 December 2010: Mr. Justice Harris rendered his decision on entrapment in R. v. Chiang . The Crown provided a copy of those reasons to counsel for the accused on 14 December 2010. 28 February 2011: Ruling on voir dire Number 2 (challenge for cause): the application was denied. The start of v oir dire Number 4 ( s. 7 Charter breach). 1 March 2011: Continuation of voir dire Number 4. 14 March 2011: Continuation of voir dire Number 4. Ruling: the application was denied.

The accused withdrew his application to have his constitutional challenge of s. 212(4) heard prior to the trial ( Voir dire Number 3). Counsel for the accused confirmed that all pre-trial applications had been addressed. A new trial date was set: Jury selection on 3 October 2011, and a 10-day trial to commence on 17 October 2011 [the “Third Trial Date”]. A pre-trial conference was set for 26 September 2011. The accused applied to vary his bail conditions to allow him to have contact with minors when accompanied by a parent or when in the presence of an adult. Crown consented to the variation.

The application was granted. 26 September 2011: Interim appearance. The accused applied for an adjournment of the trial pending a decision in the Chiang appeal that was set to be heard in the Court of Appeal on 8 December 2011. The defence waived any delay from the Third Trial Date, until the new trial date. Counsel for the accused explained his one reservation: . . . the one caveat I would raise is the possibility that the Court of Appeal could reserve for quite a period of time. . . .

It’s possible, and that delay could prejudice the -- the accused, but presuming, say, within a month they gave a decision, I don’t see any

prejudice in that situation. Sometimes they reserve for six months or a year maybe. That might be a problem. That’s the only thing I have to say about that. The Crown did not oppose the adjournment. The application was granted and the matter was adjourned to 14 December 2011 for an interim appearance. 8 December 2011: The Court of Appeal heard the Chiang appeal and reserved its judgment. 14 December 2011: Interim appearance. The accused applied to adjourn the matter to 21 March 2012.

Crown counsel suggested earlier dates, but the agent who appeared for counsel for the accused indicated that counsel for the accused would be undergoing medical treatments during the first two months of 2012 and would not be available. The matter was adjourned to 25 January 2012. 25 January 2012: Interim appearance. The Court of Appeal’s decision in Chiang remained on reserve.

The matter was adjourned to 28 March 2012 for an interim appearance. 23 February 2012: The Court of Appeal dismissed the Chiang appeal. 20 March 2012: Crown counsel wrote to counsel for the accused, enclosing a copy of the Court of Appeal's reasons in Chiang . Crown counsel asked counsel for the accused if there were any further issues that needed to be litigated prior to the trial. The Crown also suggested new trial dates in October and November 2012 and January and February 2013. 27 March 2012: Accused’s counsel responded to Crown counsel and indicated he “would be agreeable to a trial date in February 2013”.

There was no response to the Crown’s enquiry about further pre-trial issues. Counsel for the accused requested the Crown’s consent to another variation to the accused's bail conditions. 28 March 2012: A new trial was set for 4 to 15 February 2013, with jury selection being on 4 February [the “Fourth Trial Date”].

Crown consented to a further variation of the accused’s bail, allowing him to have contact with minors in public. 30 October 2012: Crown counsel wrote to counsel for the accused enquiring if there remained any outstanding issues or applications that the court needed to address. 8 November 2012: Counsel for the accused informed Crown counsel that the defence intended to apply for a judicial stay of proceedings on the basis of an alleged s. 11(

b) Charter breach. 15 January 2013: The accused filed his s. 11(

b) Charter application. 16 January 2013: The accused’s s. 11(

b) application was delivered to Crown counsel. 25 January 2013: The defence delivered to the Crown the transcripts of proceedings it intended to rely upon at the hearing of the accused’s application for a judicial stay of proceedings. 28 January 2013: The defence filed a “Memorandum of Argument” relating to the accused’s application for judicial stay. 4 February 2013: Jury selection. A jury was selected and the jurors were stood-down until 12 February 2013. The accused’s s. 11(

b) Charter application was heard from 4 to 8 February 2013. 12 February 2013: The accused’s s. 11(

b) Charter application was dismissed. The accused’s trial began. 21 February 2013: Counsel for the accused was incapable of continuing with the trial because of a serious health issue. The trial was adjourned to 22 February 2013. 22 February 2013: The trial was adjourned to 25 February 2013 because of the accused counsel’s health problem. 25 February 2013: The accused informed the court his counsel had been admitted to hospital and would not be able to continue with the trial.

The trial was adjourned to February 26, 2013. 26 February 2013: The accused informed the court he could not find new counsel who could continue the trial and he did not want to proceed as a self-represented litigant. The jury was discharged and a mistrial declared. The court suggested the matter go over two weeks for the accused to confirm he had retained new counsel. The accused requested a one-month adjournment. The matter was adjourned to 27 March 2013.

Crown counsel consented to a further bail variation that permitted the accused to travel outside of British Columbia without first obtaining the permission of his bail supervisor. 27 March 2013: The accused’s new counsel, not Mr. Johnson, appeared via teleconfence and indicated the defence wished to fix a new trial date. Trial dates in September and October 2013 were offered to the accused, but the accused’s counsel was not available. Trial dates in November were canvassed and all parties were available.

Counsel for the accused requested that the trial date in November not be confirmed and that the matter be adjourned to 18 April 2013 for a fix date, so as to allow him additional time to review his calendar and determine if could be available for a trial in October. The matter was adjourned to 18 April 2013.

18 April 2013: The Accused appeared in court without his previous legal counsel. With him on this occasion was Mr. Johnson who was appearing as “a friend of the court” and not counsel for the accused. Mr. Johnson informed the court that he anticipated he would be acting for the accused and that in his opinion it was “premature" to fix a trial date. The matter was adjourned to 21 May 2013. 21 May 2013: Pre-trial conference. Mr. Johnson appeared and confirmed he was counsel of record for the accused.

He also indicated the accused would be initiating a Rowbotham application in the event he was unable to obtain state-funded counsel. Trial dates were canvassed and counsel for the accused indicated that dates in February 2014 would "be the best fit" for his calendar. Counsel for the accused was not available on various suggested trial dates in September and December 2013. A trial date was tentatively scheduled for two weeks in February 2014, with potential pre-trial motions being heard in October and November 2013. 21 June 2013: Pre-trial conference.

There were further discussions between the court and counsel about potential trial dates in February 2014 and the scheduling of pre-trial motions in the fall of 2013. Nothing was confirmed. 24 July 2013: Pre-trial conference. Counsel for the accused confirmed the defence’s intention to make pre-trial applications addressing the following issues: the need for state-funded counsel ( Rowbotham ); recusal of the trial judge; challenge for cause; alleged s. 11(

b) Charter breach; exclusion of the emails and conversation with the undercover police officer, based on an alleged s. 7 Charter breach. The issue of the applicability of s. 653.1 of the Code and the use of the pre-trial rulings from the first trial was to be addressed at the next pre-trial conference. A new trial date was set: 17 to 28 February 2014, with jury selection on 3 February 2014 [the “Fifth Trial Date”]. When the court asked counsel for the accused if he wished to look for earlier dates, counsel responded: . . . I can't make myself available. That's the earliest I could be available, in any event, My Lord. 23 August 2013: Pre-trial conference. A

schedule for the following pre-trial motions was set: 16 September 2013: argument on the recusal of the trial judge and the applicability of s. 653.1 of the Code ; 18 to 20 September 2013: argument on the proposed challenge for cause; and 23 to 27 September: argument on the alleged s. 11(

b) Charter argument. 11 September 2013: The defence applied to adjourn the pre-trial motions until the issue of state-funded counsel had been resolved. The defence submitted that any delay occasioned by the adjournment would be considered "neutral" and did not form part of any delay for the purposes of the accused’s s. 11(

b) Charter application. The application was granted and the following new dates were tentatively set for the following pre-trial motions: 24 October 2013: argument on recusal of the trial judge and the applicability of s. 653.1 of the Code ; 18 to 22 November 2013: s. 11(

b) Charter argument; 25 to 29 November 2013: argument on the proposed challenge for cause; 6 to 17 January 2014: s. 7 Charter argument on the admissibility of the emails and the accused’s conversation with the undercover officer. The fix date was adjourned to 18 September 2013 to confirm the proposed dates for the pre-trial motions. 18 September 2013: Fix date.

The pre-trial motions dates proposed on 11 September 2013 were confirmed, except the argument on the recusal of the trial judge and the applicability of s. 653.1 of the Code was changed to 25 October 2013. 1 October 2013: The accused and the Attorney General’s Ministry reached an agreement on state-funded counsel. 25 October 2013: The recusal application was heard and judgment was reserved until 29 October 2013. The accused withdrew his Rowbotham application. The accused abandoned his challenge for cause application.

The question of s. 653.1 of the Code and its application to this case was adjourned at the request of the defence. 29 October 2013: Ruling on the recusal application: the application was dismissed. 20 - 21 November

2013: Submissions made on the applicability of s. 653.1 of the Code. During his submissions on this issue, counsel for the accused informed the court that the defence wished toraise a new s. 8 Charter argument concerning the admissibility of the emails and the accused’s conversation with the undercover policeofficer. This application was scheduled for 13 January 2014. Judgment on the applicability of s. 653.1 was reserved to 25 November 2013. 25 - 28 November 2013: Ruling on the applicability of s. 653.1 of the Code: The rulings on voir dires Number 1 and 4 in the firsttrial were held to be binding on the accused’s new trial. Submissions made on the accused’s

section 11(

b) Charter application. Judgment was reserved. On 27 November 2013, the accused filed a Notice of Application alleging a s. 8 Charter breach. Thehearing of this application was set for the week of 13 January 2014. 12 December 2013: Ruling on the s. 11(

b) the Charter application: the application was dismissed. 13 - 17 January 2014: The scheduled hearing of the accused's s. 8 Charter argument on the admissibility of the emails and hisconversation with the undercover police officer. 3 February 2014: The scheduled date for the jury selection. 17 - 28 February 2014: The scheduled trial dates. [10] From the foregoing chronology, I have discerned the following approximate periods of time: In Provincial Court: a) 1½ months from the date the charge was laid until the preliminary inquiry date was set (21 May to 8 July 2009). b) 8 months from the fix date until the conclusion of the preliminary inquiry (8 July to 2 March 2010).

In Supreme Court c) 7½ months from the accused’s first appearance in Supreme Court to the First Available Trial Date (3 March to 25 October 2010). d) 1 month from the First Available Trial Date to the First Trial Date (25 October to 29 November 2010). e) 1 month from the First Trial Date to the Second Trial Date(1 November to 29 November 2010). f) 11 months from the Second Trial Date to the Third Trial Date (29 November 2010 to 17 October 2011). g) 16 months from Third Trial Date to the Fourth Trial Date (17 October 2011 to 4 February 2013). h) 12 months from the Fourth Trial Date to the Fifth Trial Date (4 February 2013 to 17 February 2014). [11] In total, from the date the charge was laid until the scheduled conclusion of the accused’s trial is approximately 57 months.

The Defence’s Position [12] The accused asserts that except for a waiver of the brief period between late 2011 and early 2012 when the parties were waitingfor the Court of Appeal’s decision in Chiang and the short delay in confirming the appointment of state-funded counsel, virtually all ofthe delay in bringing him to trial is attributable to either the actions of the Crown or institutional delay. [13] The accused also maintains that in addition to the prejudice that can be inferred from the delay in this case, he has also sufferedsubstantial actual prejudice. [14] In support of his argument, the accused has cited the following case authorities:

a) R. v. Askov, (SCC), [1990] 2 S.C.R. 1199;

b) R. v. Morin, (SCC), [1992] 1 S.C.R. 771;

c) R. v. Archibald, 2010 BCPC 273;

d) R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45;

e) R. v. Ghozerash, 2013 BCCA 272;

f) R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3;

g) R. v. Blake, 2010 MBQB 115;

h) R. v. Walker, [1998] B.C.J. No. 409 (S.C.);

i) R. v. Tremaine, (6 September 2012), Saskatchewan 2012-09-06RCQTremaineT (Q.B.) [unreported];

j) R. v. Rahey, (SCC), [1987] 1 S.C.R. 588. The Crown’s Position [15] The Crown argues that the delay in this case, when properly scrutinized, cannot be described as unreasonable in thecircumstances. The Crown also asserts that the accused has not established that he has suffered the degree of prejudice required for ajudicial stay of proceedings. Finally, the Crown maintains that any prejudice the accused may have suffered has been on account of thecharge itself and not any delay in getting the matter to trial. [16] In support of its position, the Crown has cited the following case authorities:

a) R. v. Morin, supra;

b) R. v. Godin, supra;

c) R. v. Sharma, (SCC), [1992] 1 S.C.R. 814;

d) R. v. Tran, 2012 ONCA 18;

e) R. v. Lahiry, 2011 ONSC 6780;

f) R. v. Turner, 2012 BCSC 861;

g) R. v. Stewart, 2000 BCCA 399;

h) R. v. Ghavami, 2010 BCCA 126;

i) R. v. Baldini, 2012 BCCA 206;

j) Park v. Palmer, 2010 BCCA 8;

k) R. v. Lepage, 2012 BCSC 976;

l) R. v. Fagan, (BC CA), [1998] B.C.J. No. 2886 (C.A.);

m) R. v. A.J.W., 2009 ONCA 661;

n) R. v. Haglof, 2012 BCSC 449. Discussion [17] I now turn to the key question: applying the criteria articulated in Morin, has there been such a significant delay in bringing theaccused to trial that it and its resulting prejudice warrants a judicial stay of proceedings? 1. Length of the delay [18] Presuming the accused’s trial proceeds next February and it is completed within its presently allotted time, nearly four and threequarter years will have elapsed since the charge was laid. That is a significant period of time and in my view its sheer magnitude callsinto question its reasonableness.

Consequently, a further inquiry to determine the reason or reasons for the delay is necessary and quitejustified. 2. Waiver of time periods [19] As Justice Sopinka noted in Morin, it makes practical sense to first deal with the issue of waiver, before embarking upon adetailed examination of the reasons for any delay. If it is found that a certain period of time has been clearly and unequivocally waivedby the accused, then that period is not to be considered in the s. 11(

b) analysis (Morin, p. 790). [20] In the present case, the accused says the only waiver of delay that can be attributed to him is the approximate two and a halfmonths he was prepared to wait for the Court of Appeal to render its decision in Chiang and to have his matter reset for trial. I cannotaccept this submission, because in my view the evidence tells a different story.

Apart from the fact that the accused eventually agreedthat the time required to hear all of his pre-trial motions necessitated the adjournment of the Second Trial Date, it was the accused whoapplied in September 2011 for an adjournment of the Third Trial Date. Although counsel for the accused attempted to limit the extent of

any waiver of the delay, the fact of the matter is there are no means of predicting when an appellate court will render a decision and the accused must have known that when he sought to adjourn his trial. If, after the adjournment of the Third Trial Date, the accused had concerns about the growing delay occasioned by the Chiang decision being on reserve, then he could have and should have called this matter ahead and had the issue of fixing a new trial date addressed. He did not do so and therefore I can only conclude he did not have any concern about the delay.

Moreover, after the Court of Appeal decision in Chiang was rendered and the matter was back in court to a fix date, the accused chose a trial date of February 2013, notwithstanding the fact he was offered earlier dates in October and November 2012 and January 2013. [ 21 ] In my view, the 16-month delay between the Third Trial Date and the Fourth Trial Date was waived by the defence and therefore the proper period of time under consideration for the purpose of the s. 11(

b) Charter analysis is approximately 41 months. [ 22 ] I will now consider the reasons for that delay. 3. Reasons for the Delay (

a) Inherent time requirements for the case [ 23 ] In his submissions, counsel for the accused made little reference to this factor. The reason for that appears to be the accused’s contention that virtually all of the delay is attributable to the actions of the Crown or the justice system as a whole. [ 24 ] Counsel for the accused submits the 9½ months from the accused being charged to the conclusion of his preliminary inquiry resulted from institutional limitations. I do not agree. Institutional delay begins when the parties are ready to proceed but the justice system cannot accommodate them ( Morin , p. 794).

In my view, the 1½ months between the charge being laid and the preliminary inquiry being scheduled falls within the inherent time requirement or “intake period” for a case of this nature. With regard to the 8 months between the fix date for the preliminary inquiry and the completion of that hearing, I have no evidence indicating when the defence was first available and whether a desire for earlier dates could not be accommodated by either the Crown or the justice system.

I can only conclude that the date of the preliminary inquiry was the first available for the accused and his counsel or the most convenient for them.

The same can be said with respect to 7½ months between the accused's committal to stand trial and the First Available Trial Date in October 2010. [ 25 ] In my view the 9½ months between the laying of the charge and the completion of the preliminary inquiry and the 7½ months between the accused’s committal to stand trial and the First Available Trial Date fall squarely within the institutional and inherent time requirements for a case of this nature and are therefore to be considered as “neutral” when assessing whether the delay has been unreasonable. (

b) Actions of the accused [ 26 ] At p. 793 of Morin , Justice Sopinka described this factor as follows: This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this

section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.

I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable. [ 27 ] Aside from the waiver of a small portion of the delay, the accused maintains he did nothing that contributed to or prompted any of the delay in this case.

I again find myself unable to accept the accused’s argument because the chronology of events tells a different story. [ 28 ] In my view, the defence seriously under estimated the length and complexity of this case when it originally estimated the trial would be completed in four days. That position set in motion a process of scheduling the trial and pre-trial motions that, in my view, directly contributed to the lengthy and protracted nature of this case.

I find the following observations of Frankel J.A. in Baldini apposite to this issue: [52] …defence counsel is the person most knowledgeable about the case as a whole and is, therefore, in the best position to estimate how much trial time is needed.

While Crown counsel knows the evidence the Crown intends to present and can, therefore, estimate how much time is needed to introduce that evidence, he or she cannot accurately estimate -- or guesstimate -- such things as how much time defence counsel will take cross-examining witnesses and challenging the admissibility of the Crown's evidence, or how much time the defence will take for the presentation of its case, should the defence elect to call evidence.

It is, no doubt, because defence counsel is in the best position to provide the most accurate estimate of the total amount of time needed that the Criminal Caseflow Management Rules require defence counsel to provide that information in their arraignment and trial confirmation reports, not Crown counsel. [53] Allocating limited judicial resources is not an exact science. In doing so, judges must of necessity rely, as they do in other contexts, on what they are told by counsel: see Park v. Palmer , 2010 BCCA 8 at para. 10 , leave to appeal ref'd [2010] S.C.C.A.

No. 70, [2010] 1 S.C.R. xiii. [ 29 ] The accused is also principally responsible for the manner in which most of the pre-trial motions were raised and argued. By this, I mean it was largely because of the defence and it being late in identifying some of the issues it wished to address in advance of the trial, that the trial was delayed. For example, on 2 November 2010 the accused’s counsel informed the court that there would only be three issues to address in advance of the trial and that there would be no defence argument about the admissibility of the accused’s conversation with the undercover police officer.

Notwithstanding that advice, at the hearing of the first voir dire in late November 2010, counsel for the accused disclosed that the defence did in fact wish to mount a s. 7 Charter challenge not only to the admissibility of the

conversation but also to the email correspondence. The same thing occurred in 2011. In March of that year, the accused’s counsel advised the court that all pre-trial applications had been concluded. That position was reversed when the accused filed his s. 11(

b) Charter application shortly before the first trial. An additional issue also arose in the preparatory stage of the accused’s second trial when his new counsel disclosed during a pre-trial motion that the defence would be raising a new s. 8 Charter argument. [ 30 ] In my view, while many of the actions and decisions of the accused and his counsel may not have amounted to waivers of the resulting delay, they did significantly contribute to the additional time required to get this case to trial.

In particular, I find the 11 months between the Second Trial Date and the Third Trial Date and the 9 months between 21 May 2013, when the Fifth Trial Date was tentatively scheduled and 17 February 2014, the actual Fifth Trial Date, fall into this category of actions by the accused that fall short of waiver but nevertheless have contributed to the delay in bringing the matter to trial. (

c) Actions of the Crown [ 31 ] The Crown acknowledges it was not available to prosecute this case between 25 October and 5 November 2010. The defence was prepared to proceed during this period and there was court time available; consequently this delay falls at the feet of the Crown. [ 32 ] Additionally, the adjournment of the First Trial Date was on account of the assigned prosecutor’s unavailability and therefore the approximate one month delay between the First Trial Date and the Second Trial Date is equally attributable to the Crown. (

d) Limits on institutional resources [ 33 ] Invariably, there are limits to institutional resources and those limits have had some impact on the progress of this case. The court was not available during the week of 15 November 2010, when the trial of this matter could have been scheduled, presuming the defence’s initial time estimate for the trial was accurate and the Crown was able to proceed. [ 34 ] Although the accused asserts it was limits on judicial resources that created many of the alleged institutional delays in this case, I fail to see how that is so.

The sheer number of pre-trial conferences that were held is indicative of the substantial case management efforts that have been made in this case. Moreover, the fact the court has been available to the parties on reasonably short notice to address new pre-trial issues as they arose, in my mind is further evidence of the significant judicial and institutional resources that have been allocated to this case in order to get it completed in a reasonable length of time. On more than one occasion the court enquired and encouraged the parties to consider earlier dates for the trial.

At no point until the hearing of his s. 11(

b) Charter application at the outset of the first trial did the accused complain about the pace with which his case had proceeded, nor is there any evidence indicating that the accused wished to proceed on an earlier date but could not because of a lack of institutional or judicial resources. The same can be said following the mistrial in the first trial.

Notwithstanding consistent encouragement from the bench, the accused has not sought out earlier trial dates and when such dates were proactively offered to the accused, they were rejected. [ 35 ] In my respectful view, limits on institutional resources had very little impact on the delay in getting the accused to trial. Other reasons for delay [ 36 ] There are two other another important reasons for the delay in this case. [ 37 ] First, there is the fact that the accused's counsel at his first trial became seriously ill and unable to complete the trial.

Although counsel for the accused was aware of his medical condition, the sudden turn of events that forced him to withdrawn from the trial were unforeseen by anyone. [ 38 ] An adjournments and delay occasioned by the illness of a witness has been found to be part of the inherent time requirements of a prosecution and therefore considered “neutral” in a s. 11(

b) Charter analysis (see: A.J.W . , paras. 35, 40 - 43 ; Haglof , para. 40 ). In my view, the delay occasioned by the accused’s counsel’s health issues falls into the same “neutral” category, although some of it is arguably on account of the actions of the accused. When the mistrial was declared in the first trial, the court informed the accused that he would have sufficient time to retain new counsel. He was also reminded that delay was a live issue and he must therefore proceed with diligence. The matter was adjourned from time to time over the spring of 2013, while the accused attempted to retain new counsel.

At the 27 March 2013 appearance, the accused’s new counsel wished to set a trial for the fall of 2013 and a tentative date in November was reserved. At the next court appearance on 18 April 2013, the accused no longer had counsel, though he did appear with Mr. Johnson who was acting as a “friend of the court”. According to Mr. Johnson, it was premature to set any trial date.

While the actions of the accused could be said to have contributed to the delay following the mistrial, I find it is more appropriate to consider the delay as one that was beyond the control of the accused, the Crown or the justice system as a whole and therefore “neutral” in the s. 11(

b) analysis. [ 39 ] The same can be said about the time it took the accused and Mr. Johnson to negotiate a fee-arrangement with the Attorney General's Ministry, thus avoiding a Rowbotham application. I have not been made privy to the details of those negotiations and consequently I am in no position to assess whether they took longer than necessary.

All I can say is that the time it took for the agreement to be reached is either inherent delay, given the circumstances of the case, or an “other reason” for the delay, and that either way I would categorize it as a neutral period unattributable to either of the parties or the justice system in general. Prejudice to the accused [ 40 ] The final stage in the Morin analysis addresses the issue of prejudice to the accused. The prejudice must be understood and assessed in light of the interests that s. 11(

b) of the Charter is designed to protect, namely: liberty, security of the person, and the right to make full answer and defence ( Godin , at p. 15). [ 41 ] In this case, it is not suggested the delay has diminished the accused's ability to make full answer and defence or has infringed his fair trial rights. The issue is the effect the delay has had on the accused, including his liberty interests and his right to security of the person.

[ 42 ] Prejudice may be inferred simply by virtue of the length of the delay, or it may be the subject of affirmative evidence. In this case, the accused points to both inferred prejudice and specific prejudice. [ 43 ] As a general proposition, the longer the period of delay, the more likely there will be prejudice to an accused. In other words, prejudice can be inferred merely by the fact that there has been a significant delay. [ 44 ] In the present case, the accused says there has been an inordinately long delay and consequently I should infer he has suffered prejudice.

He also claims he has suffered real and tangible prejudice. The evidence submitted in support of this claim included the accused’s viva voce testimony, an affidavit he swore that had various financial documents attached as exhibits, and an affidavit sworn by his mother. [ 45 ] In advancing his argument on actual prejudice, the accused points to the television and internet news reports that were broadcast around the time of he and Mr. Chiang were charged. It would appear that an internet search of the accused’s name, using the Google search engine, will still disclose one news report dated 5 August 2010 about Mr.

Chiang’s prosecution, which includes a reference to the accused also being charged. [ 46 ] The accused also blames the delay for his failed marriage and for losing his investment in his former spouse’s business. [ 47 ] During his testimony on this application, the accused explained that his heating and air conditioning business is virtually “economy proof” which I took to mean it is immune to any declines in the economy. With that in mind, the accused points out that since 2009 his business income has plummeted, he has had to lay-off employees and he eventually had to declare personal bankruptcy.

According to the accused, all of this resulted from the unreasonable delay in getting his criminal charge addressed in court and not because of the major global economic downturn in and around 2009. [ 48 ] Finally, the accused asserts he has been on onerous terms of bail that have restricted his ability to engage in social activities and travel. [ 49 ] I am not persuaded the prejudice the accused speaks of is not more the result of the actual offence with which he has been charged, as opposed to any delay in getting the charge resolved. [ 50 ] Aside from his own evidence, the accused has provided no additional evidence in support of his assertion that delay was a factor in the failure of his marriage.

The accused testified that his former spouse was devastated and became physically ill when in May 2009 he told her he had been charged with communicating for the purpose of obtaining the sexual services of a minor. They separated shortly thereafter and there was no subsequent reconciliation. Quite clearly no delay in addressing the accused’s charge existed when he and his former spouse separated and their marriage came to an end.

In my respectful view, while there may have been multiple reasons for the failure of the accused’s marriage, including the nature of the offence with which he had been charged, I am not persuaded delay in getting his criminal charge resolved was one of them. [ 51 ] In my view the evidence also fails to support the accused’s assertion that the delay in this case caused him to lose his investment in his former spouse’s business. The accused’s former spouse started a family law action in this court and the accused was served with the notice of family claim in February of this year.

For reasons that remain unclear to me, the accused filed no response to that claim and consequently on 10 April, 2013 an uncontested divorce order was pronounced. Without further explanation from the accused, it seems to me that he may have had a claim to a portion of his former spouse’s business as a matrimonial asset. The accused has not pursued this claim, and as a result it would appear he has chosen to abandon it.

In my view, any financial loss he has suffered as a result of the failure of his marriage is more attributable to the nature of the charge he is facing or some other unrelated factors, rather than the length of time it has taken to get this matter to trial. [ 52 ] I have come to a similar conclusion with respect to the difficulties the accused’s business has endured since 2009. The evidence before me indicates that after the charge was announced in May 2009, some of the accused’s customers refused to do further business with him and some of his employees chose to leave and find work elsewhere.

In my view, this occurred because of the charge itself and not because of any delay. The drop in business may have compelled the accused to lay-off other employees or reduce their hours of work; however that again would be attributable to the charge and resulting loss in business and not the alleged unreasonable delay. I should also note in passing that although the accused testified otherwise, I find it hard to accept that his business was untouched by the recent global economic crisis. [ 53 ] I accept that the accused has been under emotional stress and that he has had medical issues arise since he was charged.

I am not convinced, however, that these issues are solely attributable to the present charge or, more importantly, any delay in having it tried and resolved. I also note that the accused has another serious criminal charge before the court, and in my view it is not possible to distinguish or separate the emotional or health consequences associated with each charge. [ 54 ] Finally, with respect to the terms of the accused's bail, I agree they were restrictive when he was first arrested and released.

However, the evidence clearly indicates the terms were varied multiple times at the accused’s request and always with the consent of the Crown. While being on bail was likely an inconvenience for the accused and restricted his freedom to a certain degree, I am not convinced he suffered any noticeable prejudice to his wellbeing or liberty. [ 55 ] The issue of prejudice must be considered in the context of the length of the delay and the reason or reasons for it.

Overall, while I accept the current charge before the court has had an impact upon the accused’s life, including his ability to work and enjoy a social life, I do not find this impact amounts to the prejudice spoken of in the jurisprudence that is required for the Charter remedy the accused seeks. Striking a balance [ 56 ] In separate but concurring reasons in Morin , McLachlin J. (as she then was), articulated her vision of the s. 11(

b) analysis at p. 810:

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. [ 57 ] The accused in the present case was charged in May 2009. Close to five years will have elapsed by the time his trial is completed in February next year.

By any measure, that is a significant amount of time. However, in my opinion the magnitude of the delay is tempered to a great degree by the fact that a good portion of it is attributable to the actions of the defence or other factors beyond the control of the parties or the justice system as a whole. [ 58 ] Balanced against the unusually long time it has taken this case to get to trial, is the fact that the charge against the accused is a very serious one.

Youth who become entangled in the sex trade are victims of abuse who need to be protected from those who would seek them out for sexual purposes. [ 59 ] In my respectful view, there is an overwhelming societal interest in determining at trial whether the Crown can prove, beyond a reasonable doubt, that the accused is guilty of the charge against him. As such, I find the balance tips heavily in favour of allowing the prosecution to proceed.

Decision [ 60 ] Having considered all of the evidence before me, as well as the jurisprudence counsel have brought to my attention, I am not satisfied the accused has established a breach of his s. 11(

b) Charter right. [ 61 ] The accused's application for a judicial stay of proceedings is denied. “G.R.J. Gaul J.”