R. v. Nelson Date:, 2011 BCPC 401

Citation: R. v. Nelson Date: 20111024 2011 BCPC 0401 File No: 15411-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ARTHUR DEAN NELSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: W. Havelaar Counsel for the Defendant: G. Cranston Place of Hearing: Sechelt , B.C.

Date of Judgment: October 24, 2011 [ 1 ] THE COURT: Arthur Dean Nelson is charged with production of a controlled substance, cannabis marihuana, and possession of a controlled substance, cannabis marihuana, in an amount exceeding three kilograms, for the purpose of trafficking. [ 2 ] This is an application by Arthur Nelson for a judicial stay of proceedings on the charges against him on the ground that his Charter right under s. 11(

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time has been infringed. [ 3 ] The information charging Mr. Nelson was sworn May 18th, 2010, and the date of the first appearance was June 23rd, 2010. On July 14th, 2010, Mr. Nelson's case was set for preliminary inquiry, as the election at that time was trial in Supreme Court. [ 4 ] On January 18th, 2011, which I actually believe to be the trial confirmation date for the preliminary inquiry, there was a discussion with respect to the time available on March the 2nd, the date set for the preliminary inquiry.

At that time, both Crown and defence, and I wish to stress absolutely appropriately, came to the determination that there would not be time for this matter to proceed to preliminary inquiry on March the 2nd. The date for the preliminary inquiry was vacated. There was a re-election and, as I understand, admissions were made so that this matter would remain within the one-day time estimate. [ 5 ] The case was then reset for trial for October 24th, today. The case did not proceed today due to a lack of court time, and I heard argument with respect to this application.

Counsel agree that if this matter were reset for trial, the new trial date would be sometime in June of 2012.

[6] The general approach to a determination as to whether or not the right to a trial within a reasonable time has been denied is not anapplication of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the

section isdesigned to protect against factors which either inevitably lead to delay or are otherwise the cause of delay: see R. v. Morin, (SCC), [1992] 1 S.C.R. 771. [7] The burden of course is on the accused, Mr. Nelson, to show an infringement of his right to be tried within a reasonable time. The factors that I must consider are: (1) the length of the delay; (2) waiver of time periods; (3) 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 (

e) other reasons for the delay. [8] I must also consider as number 4, prejudice to the accused: see R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, and R.v. Morin. [9] I will now apply those factors to this case. [10] With respect to the length of the delay, the court in Morin, in attempting to set a guideline for the length of the tolerableinstitutional delay, suggested eight to 10 months is generally acceptable if an accused is not in custody. [11] In Mr.

Nelson's case, it would be 24 months from the date the information was sworn to a June 2012 trial date, andapproximately 23 months from the date when the case was first set for preliminary inquiry to the June 2012 trial date. [12] Regarding waiver, Crown and defence agree that there was no waiver of any period of delay by Mr. Nelson. I conclude,therefore that the length of unwaived delay, 24 months, is sufficient to justify an inquiry into the reasonableness of the delay in this case. That inquiry begins with an identification of the reasons for the delay. [13] I begin with: (

a) The inherent time requirements [14] This is not a complicated case nor a lengthy case. Systematic delay starts to run when the parties are ready for trial, but when thesystem cannot accommodate them. [15] In this case, the inherent time requirements were from June 23rd, 2010, to July 14th, 2010, less than one month. (

b) Actions of the accused [16] In this case, Mr. Nelson did not act in any way consistent with a person who is trying to delay matters, nor has Crown suggestedthat Mr. Nelson has acted in a fashion which contributed to delay. In addition, Mr. Nelson instructed his counsel to make admissions tolessen the amount of trial time required. (

c) Actions of the Crown [17] There is nothing to suggest that Crown counsel has not acted consistent with its obligation to ensure that trials proceed in a timelyfashion, and I compliment Mr. Havelaar for the position he took in this court and with respect to the appearance at the trial confirmationhearing, recognizing that there would not be time for this matter to proceed. That decision allowed for the matter to be reset rather thanwaiting the additional two months, and then two months later having the matter set, which would have just increased the delay. (

d) Limits of institutional resources [18] In an ideal world, there would be no delays in bringing an accused to trial and there would be no difficulties in securing fullyadequate funding, personnel, and facilities for the administration of criminal justice. As we do not live in such a world, some allowancemust be made for institutional resources: see R. v. Mills, (SCC), [1986] 1 S.C.R. 863. (

e) Other reasons for the delay [19] Based on what I have heard, there are no other reasons for the delay, other than what I have referred to as the inherent timerequirements of the case and the limits on institutional resources. [20] How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarceresources? While account must be taken of the fact that the state does not have unlimited funds and other government programs competefor available resources, this consideration cannot be used to render s. 11(

b) of the Charter meaningless.

[21] The court cannot simply accede to the government's allocation of resources and tailor the period of permissible delayaccordingly.

The weight to be given to resource limitations must be assessed in the light of the fact that the government has aconstitutional obligation to commit sufficient resources to prevent unreasonable delay, which distinguishes this obligation from manyothers that compete for funds with the administration of justice. [22] There is a point in time at which the court will no longer tolerate delay based on the plea of inadequate resources: see R. v.Morin. [23] I will now deal with prejudice.

Prejudice in delay applications is concerned with three interests of the accused that s. 11(b)protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress andcloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice theability of the defendant to lead evidence, cross-examine witnesses, or otherwise raise a defence: see R. v. Godin, 2009 SCC 26 ,[2009] 2 S.C.R. 3. [24] The question of prejudice cannot be considered separately from the length of the delay.

As Justice Sopinka wrote in Morin, evenin the 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. [25] Where the delay exceeds the ordinary guidelines of a year or more, even though the case is straightforward, it is reasonable toinfer that the prolonged exposure to the criminal proceedings resulting from the delay will give rise to some prejudice: see R. v.

Godin. [26] In this case, given when this matter would be proceeding to trial, I find that there is implied prejudice from the excessive delay,as well as some actual prejudice based on the evidence of Mr. Nelson. [27] There was no pre-trial custody and Mr. Nelson was released on a promise to appear. I am therefore not prepared to inferprejudice regarding Mr.

Nelson's liberty. [28] While it is to be expected that every person charged with a crime will experience some anxiety, some difficulties and some socialstigma from being charged while awaiting a trial, as long as a trial occurs without too long of a delay, that kind of prejudice is neutral. But here I find that this kind of prejudice should be given considerable weight, due to the excessive delay in this prosecution, which is atleast one year over and above what is to be expected in a case of this kind. [29] It is my judgment that none of the delay has been caused by the actions of Mr.

Nelson, and the inherent time requirements of thiscase amount to less than one month. The excessive delay must be combined with the prejudice that I find has been caused to Mr. Nelson. [30] The next question is, does the excessive amount of delay and prejudice outweigh the interest of society in law enforcement? Mr. Nelson faces serious charges proceeded by indictment. The more serious the charge, the greater becomes the interest of society inbringing accused persons to trial for crimes they are charged with. [31] It is my judgment that institutional delay sways the balance.

There is a point at time at which the court will no longer toleratedelay based on the plea of inadequate resources. Here that limit has been exceeded. Almost all of the delay has been caused by factorsother than the inherent time requirements of the case and the actions of the accused. [32] I find that the other delay factors and the prejudice to the accused outweigh society's interest in prosecuting Mr. Nelson throughtrial.

I order that the prosecution of the charges be stayed. [33] And for the assistance of counsel, in order to give this decision as quickly as possible, I wish to note that I did refer to my reasonsin the case of R. v. A.P., a decision I gave May 18th, 2011. [34] So there will be a judicial stay of proceedings with respect to – [35] MR. CRANSTON: Thank you. [36] THE COURT: -- that information. [37] MR. HAVELAAR: Thank you, Your Honour. (REASONS CONCLUDED)