R. v. Joe Date:, 2012 BCPC 84

Citation: R. v. Joe Date: 20120306 2012 BCPC 0084 File No: 15525-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLARD STEWART JOE EXCERPTS FROM PROCEEDINGS RULING ON APPLICATION OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: M. West Counsel for the Defendant: A. Sawyer Place of Hearing: Sechelt , B.C. Date of Judgment: March 6, 2012 [ 1 ] THE COURT: Willard Joe was charged with arson for a fraudulent purpose, contrary to s. 435(1) of the Criminal Code . [ 2 ] This is an application by Willard Joe for a judicial stay of proceedings on the charge 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. Joe was sworn April 6th, 2010, and the date of the first appearance was April 7th, 2010. [ 4 ] On April 28th, 2010, Mr. Joe's case was set for trial for January 18th, 2011. [ 5 ] On May 6th, 2010, the trial date was changed to January 20th, 2011. [ 6 ] On August 11th, 2010, Mr. Joe's case was added to the court list because the judicial case manager learned that the January 20th, 2011, trial date was no longer available, as no judge was assigned to sit in Sechelt that day.

The case was re-set for trial for January 7th, 2011. That trial date was confirmed on December 1st, 2010. [ 7 ] On December 20th, 2010, Crown counsel applied to adjourn the trial because of the unavailability of a witness for medical reasons. That application was granted, and a new trial date of September 27th, 2011, was set.

[8] The trial did begin on September 27th, 2011, but did not complete due to a lack of court time. The continuation was set forNovember 21st, 2011, but again, due to a lack of court time, the case did not proceed. The next continuation date is set for April 25th,2012. [9] The general approach to 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 of balancing 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 SCR 771. [10] The burden, of course, is on Mr. Joe to show an infringement of his right to be tried within a reasonable time. The factors that Imust 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) others reasons for delay; and 4. prejudice to the accused. See R. v. Askov, (SCC), [1990] 2 SCR 1199 and R. v. Morin. [11] I will now apply those factors to this case. [12] With respect to the length of delay, the court in Morin, in attempting to set a guideline for the length of the tolerable institutionaldelay, suggested eight to ten months as generally acceptable if an accused is not in custody. In Mr.

Joe's case it would be 24 months and19 days from the date the information was sworn to the continuation date, and approximately 24 months from the date when the casewas first set for trial to the continuation date. [13] Regarding waiver, Crown concedes that there was no waiver of any period of delay by Mr. Joe. I conclude, as is conceded byCrown counsel, that the length of unwaived delay, 24 months and 19 days, is sufficient to justify an inquiry into the reasonableness ofthe delay in this case. That inquiry begins with identification for the reasons for delay. [14] I begin with: (

a) The Inherent Time Requirements [15] This is not a complicated case nor a lengthy case. Systemic delay starts to run when the parties are ready for trial but when thesystem cannot accommodate them. In this case, the inherent time requirements were from April 7th, 2010, to April 28th, 2010, somethree weeks. (

b) Actions of the Accused [16] In this case Mr. Joe did not act in any way consistent with a person who is trying to delay matters, nor has Crown suggested thatMr. Joe has acted in a fashion which contributed to the delay. (

c) Actions of the Crown [17] There is nothing to suggest that Crown counsel did not act in a timely fashion in applying for an adjournment of the trial uponlearning that a witness was unavailable for the January 20, 2011, trial date. Nonetheless, that resulted in the case being delayed for eightmonths. That said, while the Crown chose to apply for the adjournment, I find that the eight month delay occurred because of lack ofresources. Based on the submissions of counsel, I conclude that it was simply not possible to have this case heard sooner. (

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 time

requirements of the case, the limits on institutional resources and the unavailability of a witness. [20] How then 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. The court cannot simply accedeto the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resourcelimitations must be assessed in the light of the fact that the government has a constitutional obligation to commit sufficient resources toprevent unreasonable delay, which distinguishes this obligation from any others that compete for funds with the administration ofjustice. 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. [21] 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. [22] 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 themore likely that such an inference will be drawn." [23] Where the delay exceeds the ordinary guidelines of a year or more, even though the case is straightforward, it is reasonable toinfer that prolonged exposure to the criminal proceedings resulting from the delay will give rise to some prejudice. See R. v.

Godin. [24] As my colleague Judge Rounthwaite noted in R. v. Stavast, 2011 BCPC 157, since R. v. Godin, courts "have declined to infer anysignificant prejudice and grant stays in the absence of actual prejudice, except in a case where institutional delay stretched to 25 months." [25] In this case, given when this matter would be continuing to trial, I find that there is implied prejudice from the excessive delay, aswell as some actual prejudice, based on the letter from Mr. Joe's doctor, Mr.

Joe's affidavit and his testimony in court. [26] 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 the 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. [27] It is my judgment that none of the delay has been caused by the actions of Mr.

Joe and the inherent time requirements of this caseamount to less than one month. That excessive delay must be combined with the prejudice that I find has been caused to Mr. Joe. [28] The next question is, does the excessive amount of delay and prejudice outweigh the interest of society in law enforcement? Mr.Joe faces a serious charge. The more serious the charge, the greater becomes the interest of society in bringing accused persons to trialfor crimes they are charged with. [29] It is my judgment that institutional delay sways the balance.

There is a point in 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 inherent time requirements of the case and the actions of the accused. I find that the other delay factors and the prejudice tothe accused outweigh society's interest in prosecuting Mr. Joe through trial. [30] I order that the prosecution of the charge be stayed. (RULING CONCLUDED)