R. v. Turner Date:, 2012 BCPC 349

Citation: R. v. Turner Date: 20120118 2012 BCPC 0349 File No: 14913-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALBERT RUSSELL TURNER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.H. SAUNDERSON Counsel for the Crown: L. Fillingham Counsel for the Defendant: G. Cranston Place of Hearing: Port Hardy , B.C. Date of Judgment: January 18, 2012 [ 1 ] THE COURT: The defendant applies for a judicial stay of proceedings on the basis that his Charter right to be tried within a

[ 1 ] THE COURT: The defendant applies for a judicial stay of proceedings on the basis that his Charter right to be tried within a reasonable time has been infringed or denied. The date to start the calculation is the date the information is sworn, which was the 13th of May 2010. There has been an overall delay from that date to today's date, the trial date, of one year and eight months. There is what has been described by the Supreme Court of Canada as an intake period, which is not to be laid at the feet of either Crown or defence. [ 2 ] Here, I assess the intake period at some three months.

That would be from May 13 to August 10 of 2010. During that period, there was the first appearance. Counsel had to be retained, and counsel had to get instructions, which is appropriate, and I find that intake period, on the facts of this case, reasonable. [ 3 ] The next period extends from August 10 to September 16, 2010. It is a little unclear what occurred then except that I have to infer from the information before me that the case was referred to the judicial case manager to set a trial date. That referral was made August 10. It seems that September 16 was the date the JCM was to set the date.

For reasons which are not clear but which I infer relate to the non-appearance of the accused or any agent on his behalf on September 16, 2010, a warrant for his arrest was issued. Whether or not it was issued properly is an issue which has been raised.

I proceed on the basis that the issuance of the warrant was justified. [ 4 ] That period of time from August 10 to September 16, if my conclusions about it are correct, was about a month and a quarter and should be characterized as systemic delay. [ 5 ] Then we have September 16 to December 7, 2010, or probably September 24 to December 7, 2010, a period of two and a half months, and that I lay at the feet of the Crown. There is no satisfactory explanation why it took that long to get the case, if I can put it this way, back on track. [ 6 ] The next period is December 7, 2010, to January 18, 2011.

That delay I decline to characterize as systemic. The judge at the time (and that was myself) was concerned about a correct or a more accurate assessment of the time that would be needed for trial. We do have limited judicial resources. We are all very mindful of the fact that accurate trial estimates, to the extent that that is possible, are necessary and useful. The range was something of the order of anywhere from one to five hours, if I recall correctly, and it was simply not possible to make a proper estimate and get the matter into the hands of the judicial case manager.

She has an extremely difficult job trying to find adequate time. [ 7 ] The last thing anyone wants, be it the presiding judge at trial or Crown or defence counsel, is to have a case start but not finish and have to be put over for what would inevitably be months for continuation. Much is lost in the course of those delays or the length of continuations, important matters such as the impressions that a judge has of the witness and his or her credibility and reliability. It is important that cases, once started, be finished. [ 8 ] Then we have the one-year delay from January 18 last year to January 18 this year.

This trial date was set precisely one year ago. It is exactly one year, and that is simply not satisfactory. It is systemic delay. [ 9 ] We have a total delay period here which included systemic delay, delay attributable to the Crown and so on, of one year and about three and three-quarter months, which is well outside the period of time that is permissible according to the Supreme Court of Canada in Morin . That is an eight- to 10-month delay. [ 10 ] One must bear in mind in these cases that, at least with respect to criminal law, the list, in the very real sense of the word, belongs to the Crown.

It is the Crown collectively, being a combination of the police who recommend charges and Crown counsel who approve them. It is the province of the Crown to decide what cases it wants to proceed and when. The Crown is placed in an extremely difficult position, and I refer to Crown counsel here, when having to decide between any number of cases on its list and deem one to be more important than the other. [ 11 ] That was the situation in which Crown counsel here no doubt found herself on the 18th of January of last year. The transcript does not indicate Crown counsel expressing any concern about the delay.

I decline to draw any inferences from that other than the lack of expression about delay, but the handwriting at that point was on the wall. [ 12 ] There is prejudice in this case. There is established financial prejudice without a dollar value being put on it, but I expect it is substantial. Prejudice because of the length of delay can be inferred according to the Supreme Court of Canada, so the accused has met those criteria. [ 13 ] It is not clear to me whether there should be a finding of emotional prejudice because of the worry of the case hanging over the head of the defendant.

That is presumed to be the situation in virtually every criminal charge. In any event, I am not persuaded that that sort of prejudice has been proved, and I do not take it into account therefore. [ 14 ] The government, in this case the provincial government, which is responsible for the administration of justice in the province, does have a constitutional obligation to fund the court system adequately to prevent unreasonable delay.

It comes as no surprise to anybody in this province, thanks to a number of articles, comments in newspapers, and so on, that there are not enough judges, that there is not enough court time, and it seems to me - and there are many successful applications for judicial stays in British Columbia, many, many of them - it seems to me that the government has made a decision, and it is up to the government to choose its own priorities, but here it has a constitutional obligation to fund the courts.

It has simply decided not to provide adequate funding. [ 15 ] In this jurisdiction alone, traditionally there have been nine full-time judges, and I refer to the jurisdiction as starting in Nanaimo and continuing to the north end of this island. We are now at three full-time judges and something of the order of six part-time, which is to say half-time, judges, which is simply not enough. There was a judge in this particular jurisdiction based in Campbell River who retired close to two years ago.

He was not replaced. [ 16 ] My colleague in Courtenay, as of a matter of days ago, elected to get himself involved in the senior judge program, which is to say, working half-time. Effective the first day of next month, I have made the same election. So we go from three full-time judges in the North Island, and by that I refer to Courtenay and Campbell River, to two half-time judges, or one full-time judge equivalent. It is

simply inadequate, and there has not been a whisper of any suggested new appointments to fill the obvious gap. [ 17 ] The government has made its decision; it is going to have to live with it. I suspect that what it will take is the sort of case that causes the public to be absolutely appalled at the circumstances, a case probably involving something as heinous as a series of sexual assaults on little children, that kind of case to be stayed for delay - and the same rules apply - because of lack of funding. It will get the attention of the major news media in the province and probably across the country.

It will take that kind of pressure to bring the government to its senses and to comply with its constitutional obligation. [ 18 ] It is a regrettable state of affairs, but that is what it is. [ 19 ] A case has been made for a stay of proceedings here, and I direct the charges to be stayed. (REASONS CONCLUDED)