R. v. Lasota Date:, 2011 BCPC 244

Citation: R. v. Lasota Date: 20110526 2011 BCPC 0244 File No: 14629-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WALTER STEVEN LASOTA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MacCARTHY Crown Counsel: L. Fillingham Place of Hearing: Port Hardy Date of Judgment: May 26, 2011 [ 1 ] THE COURT: These are my oral reasons for judgment in the matter of Regina v. Lasota. This is on Court File 14629-1. Counsel for Mr. Lasota, Jeffrey Green, Q.C., was in attendance yesterday, and it was agreed as between the court, Mr. Green, and Crown counsel Ms.

Fillingham, that I would render my reasons today and that Ms. Fillingham would be present in the absence of Mr. Green in order to hear and to pass on to Mr. Green the results of my decision. Introduction [ 2 ] The accused, Walter Steven Lasota, seeks a judicial stay of proceedings on the basis that there has been a violation of the accused's rights to be tried within a reasonable time as guaranteed by s. 11 (

b) of the Canadian Charter of Rights and Freedoms . [ 3 ] Mr. Lasota is named in two counts on the information in Court File 14629. Those counts read as follows: Count 1 Walter Steven LASOTA, on or about the 20th day of April, 2009, at or near Port Hardy, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle, contrary to Section 253(1) (

a) of the Criminal Code . Count 2 Walter Steven LASOTA, on or about the 20th day of April, 2009, at or near Port Hardy, in the Province of British Columbia, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to Section 253(1) (

b) of the Criminal Code . [ 4 ] Mr. Lasota had entered pleas of not guilty on both counts. [ 5 ] It is the contention of the accused in connection with this matter that this is a case of an overall delay of 24 months in a one-stage

summary conviction prosecution. It is contended by the applicant that the event that caused the delay to be so long was an adjournment of the first trial date of June 9, 2010. The adjournment was caused by the lack of available court time.

[6] The applicant, the accused in this case, argues that he has suffered prejudice as a result of this delay. [7] The time lapse between the swearing of the information on May 21, 2009, and the second trial date of May 24, 2011, is twoyears. The applicant argues that this is some 14 months beyond the outer limits of the Supreme Court of Canada guidelines for

summaryconviction cases as set out in paragraph 55 of R. v. Morin, (SCC), [1992] S.C.J. No. 25. Evidence and Submissions [8] This matter comes before me prior to the actual trial date. Crown counsel and defence counsel agreed that this matter would bedealt with by way of written submissions to the court. Accordingly, I have before me the following: 1. the affidavit of the accused, Steven Lasota, sworn March 21, 2011; 2. the affidavit of Veronica Bandet, a legal assistant, sworn March 18, 2011. Ms. Bandet is a legal assistant for Jeffrey Green, Q.C.,counsel for the accused.

She was responsible for dealing with the judicial case manager to book and rebook trial dates in this matter; 3. a transcript of the adjournment of the trial of these proceedings on June 9, 2010, before the Honourable Judge Saunderson in PortHardy; 4. an outline of submissions prepared and filed by the accused’s counsel. I note that Crown has not filed any affidavits in rebuttal, nor have they filed any response to the accused's counsel's outline ofsubmissions. I understand that Crown does not intend to do so.

Accordingly, I understand that Crown is not taking any positionconcerning the facts relied upon by the accused, nor is Crown taking any position with respect to the submissions made by the accused. Facts [9] The chronology of events in this matter are of great significance.

They may be summarized as follows: April 20, 2009, date of the alleged offence; May 21, 2009, the information is sworn; July 6, 2009, defence disclosure request is sent by fax to Crown counsel; July 7, 2009, the accused makes his first appearance; August 11 and 12, 2009, the accused enters a not guilty plea and a trial date is set for June 9, 2010; May 11 and 18, 2010, at a trial confirmation hearing, the trial date is confirmed; June 9, 2010, the trial does not start.

The court adjourns the trial due to lack of court time; June 15, 2010, a new trial date is set for May 24, 2011. [10] Based on the transcript of the proceedings of June 9, 2010, it is evident that at that time there were 59 cases on the list for thatday. This was due in part to several adjournments from the preceding day. There were six matters set for trial, including the Regina v.Lasota matter. The time estimate for the Regina v. Lasota matter was a minimum of three and a half hours to four and a half hours.

Thistime period included an anticipated Charter application that would be made by the accused. [11] When the matter was called, Mr. Lasota was present, as were both Mr. Green, acting as defence counsel, and Crown counsel. Both sides were ready to proceed. The Honourable Judge Saunderson concluded that because of the unusually long list that day, it wasnot possible to conclude the Lasota case in the time provided for on that particular day. Accordingly, the matter was adjourned forrescheduling by the judicial case manager. [12] Veronica Bandet, in her capacity as the legal assistant to Mr.

Green, contacted the judicial case manager on June 15, 2010, for thepurposes of rescheduling the trial. In paragraph number 3 of her affidavit sworn the 18th of March 2011, Ms. Bandet deposes as follows: As of June 15, 2010, Mr. Green had availability for 7 dates in August, 5 dates in September, 6 days in October, 5 days in November and5 days in December. In 2011, he was also available for 3 days in February, 7 days in March, 5 days in April and 2 days in May (one ofwhich was May 24, 2011).

And in paragraphs 4 to 6, she further deposes that the court only had 10 available dates in the next 11 months, all of which, except May24, 2011, conflicted with Mr. Green’s other scheduled trials and the July 10, 2010 and January 19, 2011 dates conflicted with his twoseparate long planned out of country vacations. [13] There is no dispute that the inherent time requirements for this particular matter would be characterized as a straightforward“impaired and over .08” prosecution with one witness.

Accordingly, the time requirements were not onerous. [14] The evidence before me also discloses that there have been no waivers of time periods by the accused in this matter. [15] I observe that Port Hardy is a remote community on Northern Vancouver Island. It does not have a resident judge. Accordingly,it is serviced by visiting judges who deal in all areas of the court's jurisdiction, including criminal (which also includes provincialticketing matters and youth justice matters), civil matters, and family matters.

[16] The Port Hardy courthouse services the communities of Port Hardy, Port McNeill, Woss, Alert Bay, Port Alice, Holberg,Zeballos, and Rivers Inlet. In addition, all of the rural and wilderness areas surrounding those communities also receive services fromthis courthouse. Usually there are only five court sitting days per month. The lists are usually very full. There is one courtroom and onesettlement conference room. [17] In the case of R. v. Breland, [2007] B.C.J.

No. 2448, a decision of my brother judge, the Honourable Judge Doherty, thefollowing observations were made in connection with a trial that was to take place in Campbell River, which is a two-and-a-half-hourdrive south of Port Hardy. Quoting from the decision of Judge Doherty as follows, starting at paragraph 6: 6 It is clear that the court simply ran out of time. The trial was to take place in what then was a single Resident Judge courthouse. Insuch a situation, when the judge is unable to accommodate a case, it is not a matter of passing the file down the hall to some other judge.There is no one else. R. v.

Breland had to be adjourned and was rescheduled to this date. 7 In this jurisdiction, a November trial date fixed in March is not unreasonable. [It should [b]e noted; Mr. Green did offerSeptember dates but could not be accommodated by the trial coordinator.] 8 That brings me to my next observation. Fixing trial dates is an art, not a science. A Judicial Case Manager has little choice but tobook more trial time than is actually available in a day. To book one, five hour, trial is not practical. In a single Resident Judgecourthouse, should the [trial] not proceed it leaves a large part of a trial day unused.

The only alternative is to overbook, with theexpectation that some cases will not go forward. Usually, this will happen due to a last minute plea. Occasionally, an accused does notshow for his trial. 9 I think it fair to say that the system relies on such intervening events to happen, in order to accommodate those trials that areactually going to proceed. 10 Some days it does not. Some days all cases scheduled are ready for trial.

At that point Crown has a choice, as it did in this case, asto which case to prosecute and in what order. 11 The court ought not to be in the position of second guessing prosecutorial decisions of the Crown. Crown counsel, faced with 14and a half hours of scheduled trial ready to proceed, obviously had to make choices as to priority. For reasons this court ought not to gobehind, Mr. Breland's case did not have priority on the original trial date. [18] I note that the observations made by Judge Doherty apply equally well to Port Hardy and to this case of Regina v. Lasota.

Issues [19] The issues before me are as follows: (

a) whether there has been an unreasonable delay in this matter coming on for trial and hence a violation of the accused's rightsunder s. 11(

b) of the Charter; (

b) whether the applicant has suffered "real prejudice"; (

c) whether there is any inferred prejudice arising from the delay; and (

d) what is the appropriate remedy, if any, in the circumstances. Analysis [20] The delay between the swearing of the information on May 21, 2009, and the second trial date of May 24, 2011, is two years. The Supreme Court of Canada in R. v. Morin, supra, sets out the guidelines for what is reasonable delay. These guidelines were recentlyreviewed in R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26. In Godin, Cromwell J. for the court stated: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to holdthemselves in a state of perpetual availability [see paragraph 23]. [21] The two-year delay here is, in fact, 14 months beyond the outer limits of the Supreme Court of Canada guidelines for a

summaryconviction case. The analytical framework to be used in s. 11(

b) Charter cases is set out in R. v. Morin and adopted by the BritishColumbia Court of Appeal in R v. Guilbride, [2006] B.C.J. No. 2047 at paragraphs 70-72 and 121-126. This framework is to beconsidered by a court in analyzing the question of how long is too long. Such a question is asked with respect to delays in a criminalmatter coming on for trial. [22] The analytical framework requires the court to deal with the following issues: 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 the delay; and 4. prejudice to the accused. [ 23 ] I turn now to each of the matters set forth in the Morin analytical framework. With respect to the length of the delay, the net delay here of 24 months is prima facie excessive and the court's scrutiny of that delay is warranted. Just under one year (by 16 days) of this two-year period was caused by the adjournment of the trial of June 9, 2010. [ 24 ] With respect to the waiver of time periods, in this case there are no waivers. [ 25 ] I turn to the question of the reasons for the delay.

Starting with the inherent time requirements, as noted, this is not a factor here. This case was a straightforward "impaired/.08" prosecution with one Crown witness. The delay was entirely unrelated to the inherent time requirements of the case. [ 26 ] Turning to the question of actions of the accused, it is also clear that this is not a factor here. Ten dates were offered by the judicial case manager, including two dates where defence counsel had planned vacation and would have been greatly inconvenienced due to prior existing arrangements.

Of course, Crown has not specifically raised the issue of the lack of availability by defence counsel, but that situation does bear some mention. [ 27 ] In R. v. Morin , the Supreme Court held that "account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case." (see paragraph 41). [ 28 ] In R. v. Godin , Cromwell J. for the court stated: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (

b) purposes, require defence counsel to hold themselves in a state of perpetual availability [see paragraph 23]. [ 29 ] Also at paragraph 23, Cromwell J. agrees with the dissenting judge in the Court of Appeal: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable." [ 30 ] Accordingly, on June 15, 2010, it would not have been reasonable to expect defence counsel to cancel a planned family holiday abroad in order to do a trial by July 15, 2010. [ 31 ] With respect to the January 19, 2011, date, defence has presented two submissions.

Defence says it would not have been reasonable to expect defence counsel to cancel a long-planned trip to Argentina because the court was not able to offer a trial date between July 10, 2010, and the end of December of 2010. Defence counsel also says: More importantly, even if this trial had been held on January 19, 2011, i.e. 20 months after the Information was sworn, the delay, accompanied as it was by significant prejudice, would still have been excessive.

I agree with that observation. [ 32 ] Likewise, with respect to the April 12, 13, and 14 dates and the May 10, 11, and 12, 2011 dates, it is contended by the defence that this amounts to a meagre array of available dates. Accordingly, on the whole of the evidence before me, I can safely conclude that there has been no action on the part of defence counsel which would have contributed to the delay in this matter. [ 33 ] I now turn to the question of the actions of the Crown.

I have concluded, based on the evidence before me, that it is not a factor in this set of circumstances. [ 34 ] As to the issue of other reasons for delay, there are none other than a lack of available court sitting time. [ 35 ] I will now deal with the issue of prejudice to the accused. First, there is satisfactory, unrebutted evidence before me that in this case Mr. Lasota has incurred real financial prejudice, in the form of additional legal fees, by virtue of the trial being adjourned on the original trial date.

He has also suffered real income loss both on the date leading up to that original trial date and on the date that the trial was adjourned. [ 36 ] In that regard, I refer to paragraph 21 and paragraph 22 of the outline of submissions of defence counsel, and I quote as follows: 21. Prejudice is the most important factor in this case. The financial cost to the applicant caused by the adjournment is "real" prejudice. The applicant incurred additional legal fees by virtue of the trial being adjourned on the day eve of trial. In R. v. Poloni [the citation of which is [2009] B.C.J.

No. 1299 , a decision of the British Columbia Supreme Court] the court stated, at para. 37:

If financial hardship is proven on the evidence to have been caused by delay, either in the form of additional legal fees [or harm to one's ability to earn an income], then financial prejudice may be found, and thus prejudice to the security interest of the accused." In paragraph 22 of the outline of submissions by the accused, his counsel states as follows: 22. The importance of financial prejudice, as a form of prejudice in the s. 11(

b) calculus was stated by Judge R.A. Higinbotham in R. v. Thiara [the citation of which is (Unreported) B.C. Provincial Court, Duncan Registry, No. 19476] at paragraph 28 [which reads]: ". . . The Defendant has also produced evidence of financial prejudice, consisting of additional per diem fees paid to counsel as a result of the last adjournment. This factor, financial prejudice, is not to be minimized. I can think of no other factor which has greater impact on the operation of the justice system generally or the quality of representation available to persons accused of a crime.

While financial prejudice would not be arguable if the Defendant's defence was funded by Legal Aid, in the case of a Defendant person paying a per diem fee, the impact of a last minute adjournment is significant, especially when the defendant is an ordinary working man, as is Mr. Thiara." [ 37 ] The affidavit of Steven Lasota filed in connection with this matter outlines his personal circumstances and deals with the prejudice of the accused that he alleges he has suffered as a result of the delay in this trial. Paragraph 2 of Mr. Lasota's affidavit states as follows: 2. I am forty four.

I am a Status Indian and member of the Katzie Band of Pitt Meadows, B.C. [ 38 ] Paragraph 3 states as follows: 3. I started fishing with my father when I was ten. In 1989 I received my Fishing Master, Class 3, qualification from Camosun College. I am the Master of a 60 foot long line vessel and have been for the past 20 years. This vessel is based in Victoria. I work for six months a year, divided into four months fishing halibut and two months fishing tuna off the coast of Oregon and California.

In the course of my employment I am required to meet the vessel by driving to different ports, including, Tofino, Ucluelet, Port Hardy, Victoria, Vancouver and ports in California and Oregon. [ 39 ] In paragraphs 6 through 8 and paragraph 13, Mr. Lasota sets out matters upon which he relies in order to indicate that he has suffered financial prejudice. Starting with paragraph 6, I quote as follows: 6. In June, 2009, I met with Jeffrey Green in Victoria and instructed him to defend me on this matter. 7. My fee arrangement with Mr.

Green was that I would pay a flat daily fee plus out of pocket expenses and federal and provincial taxes. The plan was that my trial would take no more than one day. Part of this agreement was, if Mr. Green prepared for my trial, travelled to Port Hardy and attended in court on the day of my trial and if my trial had to be adjourned through no fault of Mr. Green’s, that I would be obliged to pay Mr. Green’s fees and disbursements plus Federal and Provincial sales taxes. 8. My trial was set for June 9, 2010. During that period of time I was fishing.

I made a special trip in the vessel to Port Hardy on June 8, 2010, so that I could attend my trial. I estimate that my loss of income for June 8 and 9, 2010 was approximately $3000.00. I met with Mr. Green in Port Hardy the night of June 8, 2010 for a final review of the defence case. Referring now to paragraph 13: 13. As a result of the adjournment I have incurred additional legal fees of $10,000.00 plus taxes and significant travel disbursements.

This significant additional cost is solely related to the lack of available court time for my case on June 9, 2010. [ 40 ] Therefore, based on the above evidence before me and the cases cited above, I again conclude that Mr. Lasota has incurred real financial prejudice in connection with the delay of the trial in this matter and the requirement for the matter to be adjourned due to lack of court time. [ 41 ] Second, I also have before me further evidence of other prejudice from Mr. Lasota as set out in his affidavit.

In paragraphs 10 through 12 and paragraph 14, he deposes to significant stresses, worries, and concerns and anxiety that he has experienced between his encounter with the police initially and which has continued up to the June 9, 2010, trial date and thereafter as he awaited the rescheduled trial. [ 42 ] In his affidavit, Mr. Lasota expresses concerns about losing his driver's licence. He also expresses concerns about the potential impact on his employment and also a potential impact on meeting his financial obligations should he be convicted and lose his driver's licence.

He also expresses concerns about meeting his parental obligations, including transportation of his children when he is resident within Campbell River. [ 43 ] I note that Crown has not adduced any rebuttal evidence with respect to any of these issues of prejudice. [ 44 ] I have concluded that on the evidence before me, Mr. Lasota has suffered actual stress, not simply arising from the charges but caused by and exacerbated by the significant delay in this matter coming on for trial. [ 45 ] I agree with the submission made by defence counsel set out in paragraph 27 of their outline.

It reads as follows: Every person charged with a criminal offence experiences stress and other "vexations and vicissitudes" relating to a pending criminal trial. It should not be forgotten that one of the purposes of s. 11 (

b) is to protect persons from being exposed to these vexations and vicissitudes "any longer than necessary". [ 46 ] Judicial support of that position is found in R. v. Antoine . It is an unreported decision of the British Columbia Provincial Court, Duncan Registry No. 25996, May 4, 2004. Quoting from my brother judge, the Honourable Judge Higinbotham, at paragraph 25, he

says as follows: It is not that the stress was caused by the delay. Stress was always there. It is just that having to endure that stress for a much longertime than ordinarily would be acceptable in the view of the Supreme Court of Canada or in my view, at least, the additional length oftime worrying and suffering stress constitutes additional prejudice, and it is prejudice caused by the delay. [47] This is clearly a case where, due to the extent of the delay, I can and do infer that Mr. Lasota has suffered prejudice. [48] Defence counsel has referred me to certain provisions of the decision in R. v.

Godin starting at paragraph 31. Quoting from thecourt’s reasons: The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even inthe absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the morelikely that such an inference will be drawn." Here, the delay exceeded the ordinary guidelines by a year or more, even though the casewas straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

Continuing with paragraph 38 of the Godin judgment: Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant’s ability to make fullanswer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make fullanswer and defence is not invariably required to establish a s. 11(

b) violation. This is only one of three varieties of prejudice, all ofwhich must be considered together with the length of the delay and the explanations for why it occurred. Conclusions [49] On balance, and having considered all of the above, I conclude that it is abundantly clear that Mr. Lasota's right under s. 11(

b) ofthe Charter to be tried within a reasonable time has been breached. The overall delay is more than 14 months beyond the high end of theMorin guidelines. This delay is accompanied by significant prejudice. The Crown has not led any evidence that the accused was notprejudiced. [50] Turning now to the remedy sought, the law continues to be as stated in R. v. Rahey, (SCC), [1987] S.C.J.

No. 23at paragraph 48: If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, andno court has jurisdiction to try him or order that he be tried in violation of that right. After the passage of an unreasonable period of time,no trial, not even the fairest possible trial, is permissible.

To allow a trial to proceed after such a finding would be to participate in afurther violation of the Charter. [51] Accordingly, I therefore order a judicial stay of proceedings to be entered for this accused on both counts found in theinformation. This concludes my reasons for judgment. (REASONS CONCLUDED)