R. v. Lamming, 2013 BCSC 970

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lamming, 2013 BCSC 970 Date: 20130412 Docket: 38563-1 Registry: Campbell River Regina v. Kelly Michael Lamming Before: The Honourable Mr. Justice Baird (appearing via videoconference) On Appeal from: Provincial Court of British Columbia, September 18, 2012, ( R. v. Lamming, 15074-1, Port Hardy Registry) Oral Reasons for Judgment Counsel for the Crown/Appellant: T. Morgan Counsel for the Accused/Respondent: D. Marion Place and Date of Hearing: Campbell River, B.C. January 10, 11, 2013 Place and Date of Judgment: Campbell River, B.C.

April 12, 2013 [ 1 ] THE COURT: This is a Crown appeal from a judicial stay of proceedings entered in the Provincial Court of British Columbia at Port Hardy on September 18, 2012, on the basis that the respondent's s. 11(

b) Charter right to be tried within a reasonable time had been infringed or denied. The respondent was charged with impaired driving, refusal to provide a breath sample, and obstruction of a peace officer in the execution of his duty. [ 2 ] Briefly stated, on November 3, 2010, various Port Hardy RCMP members were present in the parking lot of an apartment complex responding to an unrelated call. The respondent entered the lot in his vehicle at a high rate of speed and parked. He approached the police officers on foot and started arguing with them. He swore at them. He invited them to taser him.

The respondent allegedly displayed signs of impairment, including a strong odour of alcohol on his breath, bloodshot and watery eyes, and slurred speech. For some reason, he was not wearing his shoes. His behavior was persistently aggressive and profane. He was pepper-sprayed and placed under arrest for impaired driving, after which his contrary behaviour apparently continued. Ultimately, he refused to provide a sample of his breath for analysis. [ 3 ] On December 16, 2010, the respondent was formally charged with the criminal offences I have already mentioned.

On January 11, 2011, he made his first appearance in Port Hardy Provincial Court and received disclosure of the Crown's case. On February 11, 2011, he entered not guilty pleas and the matter was adjourned to fix a trial date. On March 21, 2011, a judicial case manager scheduled the case for a five-hour trial on December 1, 2011. On December 1, 2011, the trial was adjourned before it was started, for reasons that will be discussed in greater detail later. On December 12, 2011, the trial was rescheduled for May 16, 2012. [ 4 ] On May 16, 2012, the trial started. It occupied approximately four hours of court time.

The Crown's case was heard in full, and one defence witness testified. Defence counsel estimated that an additional three hours would be required to complete the trial. The matter was, accordingly, adjourned to set a continuation date. [ 5 ] On May 27, 2012, the judicial case manager fixed a continuation date for September 18, 2012.

On September 18, 2012, as previously stated, defence counsel applied for and was granted a judicial stay of proceedings, on the basis of what is commonly termed "unreasonable delay." [ 6 ] The Crown's main argument on appeal was that the learned trial judge had been "indolent" and that he "failed to do the work and analysis that is inherent in any Askov application." The final paragraph of the Crown's written argument says: The Crown asks for a new trial and that the [learned trial judge] be reminded to use court time sensibly and efficiently. [ 7 ] As I observed on the hearing of the appeal, there is an obvious subtext here that was not made explicit to me.

All I can say is that there is nothing in the record of this case to show that the learned trial judge was "indolent." If there is some generalized problem with the use of court time in Port Hardy, no evidence of it was put before me on this appeal. In any event, the role of this court is to entertain appeals on legal issues. If there are problems with the operation of the Provincial Court in Port Hardy, it is a matter for others to

investigate. [8] For reasons that I will explain in greater detail below, I think the learned trial judge's handling of the case on December 1,2011, was unfortunate. I think that his analysis of the underlying facts of the case contained palpable and overriding errors. Finally, I donot think his reasons for entering a stay of proceedings were correct, although I agree with the result. [9] My task here is to evaluate the record below and apply the established standard of review for appeals of this sort and thefactors applicable to a s. 11(

b) application, both recently confirmed and neatly summarized by our Court of Appeal in R. v. Horner, 2012BCCA 7, at paras. 68 to 70 as follows: 68 The legal framework applicable to an analysis under s. 11(

b) of the Charter was set out by the Supreme Court of Canada in R. v.Morin, (SCC), [1992] 1 S.C.R. 771 ("Morin"). The question whether delay has been unreasonable is assessed by lookingat the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for thedelay, the prejudice to the accused, and the interests that s. 11(

b) is designed to protect: R. v. Godin, 2009 SCC 26 , [2009] 2S.C.R. 3 at para. 18. 69 The ultimate question is whether the overall delay is unreasonable, considering the causes of the delay, the prejudice, and theinterests at stake: R. v. Qureshi (2004), (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.) at para. 24. 70 With respect to a judge's analysis of the Morin factors, including his or her characterization and allocation of various periods oftime, the standard of appellate review is correctness. However, I agree with the Ontario Court of Appeal that a judge's underlyingfindings of fact are reviewed on a standard of palpable and overriding error. [10] This was a reasonably straightforward

summary conviction case. The overall delay between the laying of charges and the dateupon which the proceedings were stayed was just over 21 months.

This was well outside the eight to 10-month guideline set out by theSupreme Court of Canada in Morin, supra, for institutional delay in Provincial Court, and an inquiry was clearly called for into thereasons for the delay and any prejudice that the accused may have suffered because of it. [11] The learned trial judge's brief reasons for entering the stay were as follows: The defendant seeks a stay of proceedings, saying that his Charter right to a trial within a reasonable time has been denied.

I conclude,from my frequent and ongoing involvement with this case, that there was no reasonable or realistic likelihood of a settlement. On the first fix date, which was March 21, 2011, the case at that point was set for a five-hour trial. The first trial date was to have beenDecember 1, 2011, some 11 and a half months after the Information was sworn. On December 1, 2011, I met with Crown and defence counsel in Chambers to determine whether the matter would proceed and, if so,whether the five-hour time estimate was still accurate. Counsel agreed with the estimate and said the case would go ahead.

None of thatcame as a surprise to me. Other matters had been booked for December 1, 2011, and as usual, there was at least one prisoner who had to be dealt with by way of abail hearing or sentencing. The court list shows nine criminal cases, of which five were set for trial, one family application, and oneprisoner to be dealt with. It involved a pre-sentence report and a sentencing hearing. Clearly, when the list was created, that is the list for December 1st, 2011, there was no hope of completing everything.

The court's policyof overbooking by a factor of almost two to one, to which I alluded in court earlier today in the course of counsel's argument, is bound toresult in adjournments and unreasonable delays. This case, at the outset, ought to have been given the entire day without interference, subject, I suppose, only to being interfered with, asit were, by prisoners who had the misfortune to be arrested by the police a day or two previously. It was not. I make a point of saying that I am not blaming the Judicial Case Manager or managers who were involved.

She has a very difficult joband always does the best she can with the resources given to her. The problem is that the Provincial Government has declined to provide the resources, which are more courts and more judge time,especially in remote areas such as northern Vancouver Island. The government knows this; any number of judges have pointed it out indecisions staying charges for delay.

The government will probably fix the situation, which is to say spend more money and make morejudicial appointments, when, not if, the public and the press are appalled by a stay of proceedings involving some horrendous chargesuch as a violent sexual abuse of children or something equally heinous. This trial should have started and finished on December 1, 2011. It did not. It was sent to the Judicial Case Manager to be rescheduledfor one full day, with no other cases to be set on that date.

It was put on for the second trial on May 16, 2012, but it did not start on time and the court ran out of time to complete the trial. At thatpoint it was adjourned by the JCM to today's date for continuation and conclusion, presumably. On May 16, 2012, including Mr.Lamming's case, six matters were set for trial. There is a total delay here of some 21 months; 21 months from the Information's date to this date. None of that time has been waived bythe defendant; counsel agree. This is clearly a case delayed directly by government imposed limits on institutional resources. Mr.

Cacchioni is correct in his analysis ofthe situation, and I accept his argument. I am also satisfied that the defendant has been prejudiced by this long delay. I can and do infer that prejudice.

He has also proven financial prejudice, in which I do not include the costs of this delay application. There will be a stay of proceedings on this charge. Thereafter, in the transcript, there is a notation in brackets, "Proceedings concluded." [ 12 ] On a s. 11(

b) inquiry, it is well known that there must be an evaluation of the inherent time requirements of a case including the intake period after the preferring of charges, during which both Crown and defence counsel prepare to dispose of charges or set trial dates. Such a delay is built into every case and is considered to be neutral in an 11(

b) analysis. [ 13 ] In this case, the learned trial judge made no deduction from the aggregate delay to account for the inherent time requirements of the case, especially in Port Hardy, a small community where court sits only a few days per month and where, invariably, there are other matters on the court list that require attention on any given sitting day. The failure to make this deduction constituted an error. [ 14 ] The trial judge's finding that the trial should have started and finished on December 1, 2011, or that, absent interruption, it could have done so on May 16, 2012, was also clearly erroneous.

The fact is that almost a full day of court time was devoted to the case on May 16, 2012, after which defence counsel claimed that he would require an additional three hours to complete the trial.

In other words, counsel's original time estimate of five hours for the trial proved to be inadequate, and the matter would not have started and finished in one day even if there had been no other cases on the docket to deal with. [ 15 ] Furthermore, the trial judge's assertion that "This is clearly a case delayed directly by government-imposed limits on institutional resources," is not borne out by the record of the case, especially where the proceedings of December 1, 2011, are concerned. On that date, the parties attended Provincial Court in Port Hardy ready to proceed to trial.

There was only one judge available, the same judge, as it turned out, who presided over the case at every stage. Superficially, at any rate, the court was heavily booked with other matters, and it looked like it would be a busy day. From the court records, it would appear that the learned trial judge took the bench at 9:33 a.m. and dealt with various short matters until 9:45 a.m. or so.

Then court stood down for just over 10 minutes, during which the learned trial judge invited Crown and respondent's counsel into his chambers to discuss the case. [ 16 ] When court reconvened just before 10:00 a.m., the learned trial judge addressed this case on the record and said: I have had a fruitful discussion with Crown and defence counsel in chambers. I am advised that the Crown intends to proceed with all three counts, which -- and there will be likely five witnesses at trial.

The time estimate for that is five hours and it would seem to me that counsel think we'll probably need all that; in other words, a one day trial. Mr. Cacchioni [the respondent's counsel], not surprisingly, is booked elsewhere for tomorrow. If we were to start the trial right now, we would have about three and a half hours in which to deal with a five-hour trial. That would necessarily mean it would be adjourned and in this case it's not appropriate to adjourn it, it's appropriate to hear it all at once. So the matter will be adjourned.

The judicial case manager will set a one day trial in consultation with counsel. I am not requiring her to set this matter in Port Hardy, it can be set elsewhere to suit the convenience of counsel. That might, in fact, be Campbell River. One full day should be allocated; there should be no cases set on that day. I am proceeding on the basis that this case will go to trial, that no, in the vernacular, deals will be possible. Is there anything else, counsel, that should be put on the record regarding this? [ 17 ] Neither Crown nor defence counsel objected to this adjournment.

As it happened, the remainder of the learned trial judge's daily list soon collapsed, and the Port Hardy Provincial Court was closed for the day at 11:40 a.m. [ 18 ] In my respectful view, the learned trial judge's decision to stay proceedings on the basis of delay caused solely by a lack of institutional resources ignored the obvious fact that on December 1, 2011, over half a court day was wasted that could have been used to make a substantial start on the respondent's trial.

Resources were available that went entirely unused because of the trial judge's unilateral decision to adjourn the case. [ 19 ] Given these errors by the trial judge, I am permitted to examine afresh the s. 11(

b) Charter issues in this case as the deference generally accorded to trial judges is not applicable: R. v. Sychterz , [2005] O.J. No. 2722, at paragraph 72 . [ 20 ] As previously stated, the overall delay in this case from the date of laying charges to the judicial stay of proceedings was just over 21 months. The Crown has conceded that no portion of this delay was waived by the respondent. With respect to the inherent time requirements, as previously stated, a reasonable intake period has to be netted from the aggregate delay.

From the laying of charges to the fixing of the trial, there was an interval of approximately three months. A three-month intake period for a case such as this, especially in a remote location like Port Hardy, seems to me to be reasonable. [ 21 ] The other inherent time requirement that should be emphasized is the amount of time required for this particular trial to run from start to completion. At the outset, Crown and defence counsel apparently agreed on a one-day time estimate, but it seems clear that a full trial on the merits would have taken approximately 1.5 days.

In other words, the trial required court time on at least two court days. [ 22 ] Given the fact that the Provincial Court sits in Port Hardy only a few days per month and that, on any given sitting day, other matters are bound to arise to which the court must devote its attention, I am firmly of the view that it would have been reasonable, given the inherent time requirements of this case, if the trial had begun on December 1, 2011, and finished on May 16, 2012.

The first date was well within the Morin guidelines, and the second date was not so far outside them that the drastic remedy of a stay of proceedings would have been appropriate. [ 23 ] This case was sent off the rails, as far as I am concerned, by what happened on December 1, 2011. Court time available for the respondent's case was thrown away. The respondent attended court with a privately-retained lawyer from out of town to conduct his trial.

The lion's share of the evidence could have been heard. Instead, of its own motion, the court adjourned the case without hearing a wordof evidence and without even inviting the submissions of counsel. This was most unfortunate. It meant that this reasonablyuncomplicated

summary conviction trial did not get started until almost 14 months after the conclusion of what I consider to be areasonable intake period, and this was well outside the guidelines set down in Morin, supra. [24] I find that the delay between March 21 and December 1, 2011, was institutional delay.

On the Morin analysis, I would classifythe interval between December 1, 2011, and May 16, 2012, under "other causes for delay" and identify it as "judge-caused delay." Noportion of this nearly 14-month interval was waived by the respondent. [25] The fact that two earlier dates were offered in October and in March is of minor importance.

As Cromwell J. observed in R. v.Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3, "Counsel are not expected to maintain themselves in a state of perpetual availability." [26] I was urged that some inference adverse to the respondent should be drawn because he failed to say anything about the trialjudge's decision to adjourn the case on December 1, 2011, but I decline to do so. After all, when the trial judge asked counsel if they hadanything to say on the record, he had already ruled. The adjournment had already been ordered. The respondent was acquiescing in theinevitable.

The more important point might be that Crown counsel, whose duty it is to bring the accused to trial within a reasonable time,could have raised an objection, but did not do so. [27] Of course, the simple conclusion that there has been a delay outside the Morin guidelines does not end the matter. Thereremains the question of prejudice to the respondent, either inferred or actual, in the absence of which there will be no remedy. The lawhas long recognized the reality that many criminal defendants wish to postpone the judgment day and are happy for matters to be delayedinterminably.

Hence, the onus rests with the applicant to show that the delay in coming to trial caused some form of prejudice to him. [28] In my view, the manner in which the court handled this case caused actual and obvious prejudice to the accused of a financialnature. The respondent incurred legal fees for a trial in Port Hardy on December 1, 2011, that was, in effect, unilaterally cancelledwithout notice by the learned trial judge. Hiring a Vancouver lawyer to travel to Port Hardy to defend a criminal case is a tremendouslyexpensive proposition.

In my experience of practicing law, lawyers generally will not refund fees merely because a case does not get on,any more than they will if there is a last-minute stay of proceedings or an irresistible plea offered to a lesser offence. I have no difficultyaccepting that the precipitous adjournment of the respondent's case on December 1, 2011, caused him a significant financial loss, and tomy mind, this constitutes actual prejudice: see R. v. Poloni, [2009] B.C.J. No. 1299, especially at paras. 37 and 38. [29] Before concluding, I should like to refer briefly to two matters touched upon in Crown's appeal argument.

First of all, theCrown submitted that the learned trial judge erred in failing to consider the strong public interest in having criminal charges tried on theirmerits.

While it is true that the learned trial judge did not address this question, I have concluded that this straightforward case wasdelayed to the point where the appellant's constitutional right to be tried within a reasonable time was violated, and such public interest asthere may have been in the merits of the case must yield to well-established individual Charter rights and the equally compelling publicinterest in expeditious and fair criminal trials. [30] Secondly, the Crown submitted that the learned trial judge's reasons for entering the stay of proceedings were inadequate in thesense discussed in R. v.

Sheppard, 2002 SCC 26. While there may be force in this argument, the far greater problem with the decisionwas that it was based on an erroneous accounting of the delay and an insupportable evaluation of its causes. [31] In

summary, however, although I have found that the trial judge's evaluation of the underlying facts of this case containedpalpable and overriding error and the reasons he gave for entering a stay of proceedings were incorrect, having subjected the recordbelow to a s. 11(

b) analysis of my own, I have decided that a combination of institutional and judge-caused delay set this case welloutside the guidelines established by Morin for reasonable delay in Provincial Court and that this delay caused actual prejudice to therespondent. [32] In the result, I decline to set aside the stay of proceedings and the appeal is dismissed. “Baird J.”