R. v. Austin Date:, 2011 BCPC 387

Citation: R. v. Austin Date: 20111205 2011 BCPC 0387 File No: 15633-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW OWEN AUSTIN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. M. MERRICK Counsel for the Crown: M. West Counsel for the Defendant: A. Pollack Place of Hearing: Sechelt , B.C. Date of Judgment: December 5, 2011 [ 1 ] THE COURT: Matthew Owen Austin is charged with wilfully doing an indecent act and prowl at night. [ 2 ] This is an application by Mr. Austin for a judicial stay of proceedings of 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 ] I will first review the facts as they have been outlined for me for the purposes of this application and the factors that I must consider. I will then apply those principles to the facts in this case and conclude with my ruling. [ 4 ] Mr. Austin is alleged to have committed both offences on July 11th, 2010. The Information charging him with the two offences was sworn August 6th, 2010. Mr. Austin's first appearance was August 25th, 2010. On September 21st, 2010, Mr.

Austin's case was set for trial, with a trial date of July 4th, 2011. [ 5 ] On May 18th, 2011, a trial confirmation hearing was held and both Crown and defence confirmed that they were ready to proceed to trial. [ 6 ] On June 21st, 2011, Crown Counsel learned that there was no judge available to sit in Sechelt on July 4th, 2011, and on June

27th, 2011, the trial was adjourned and reset for December 13th, 2011. [7] The general approach to a determination as to whether or not the right to a trial within a reasonable time has been denied is notthe application of a mathematical or administrative formula, but rather by judicial determination, balancing the interests which thesection is designed to protect against factors which either inevitably led to delay or are otherwise the cause of delay. (See: R. v. Morin (SCC), [1992] 1 S.C.R. 771.) [8] The burden, of course, is on Mr.

Austin to show an infringement of his right to be tried within a reasonable time. The factors thatI 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 of institutional resources; e. other sources for the delay; and 4. prejudice to the accused. (See: R. v. Askov [1992] 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 delay, the court in Morin, in attempting to set a guideline for the length of the tolerable institutionaldelay, suggested eight to 10 months as generally acceptable if an accused is not in custody. [11] In this case, it is 16 months and seven days from the date the Information was sworn to the trial date, an approximately 14 andtwo-thirds months from the date the case was first set for trial to the trial date. [12] Regarding waiver, Crown Counsel concedes that there was no waiver of any period of delay by Mr.

Austin. [13] I conclude, therefore, that the length of unwaived delay (approximately 16 months) is sufficient to justify an inquiry into thereasonableness of the delay in this case. That inquiry begins with an identification of the reasons for the delay. 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 thesystem cannot accommodate them. (See: R. v. Morin.) [15] In this case, the inherent time requirements were approximately one month. B. Actions of the Accused [16] In this case, Mr.

Austin did not act in any way consistent with a person who is trying to delay matters nor has Crown Counselsuggested, that Mr. Austin 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 to have a new trial date set upon learning that therewould be no court on July 4th, 2011. That said, the onus is on the Crown to bring Mr. Austin to trial. (See: R. v. Askov.) 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 justice. As we do not live in such a world, some allowance must bemade for institutional resources. (See: Mills v. The Queen (SCC), [1986] 1 S.C.R. 863.)

[19] Counsel for Mr. Austin made reference to Justice Delayed: A Report of the Provincial Court of British Columbia ConcerningJudicial Resources (September 14, 2010), and Justice Delayed: A Report of the Provincial Court of British Columbia ConcerningJudicial Resources (March 31, 2011). [20] While both of those are relevant to the issue of institutional resources, an application pursuant to s. 11(

b) of the Charter is not atrial of the budgetary policy of the government as it relates to the administration of justice. (See: R. v. Morin.) [21] How are we, therefore, 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 programscompete for the available resources, this consideration cannot be used to render s. 11(

b) of the Charter meaningless. The Court cannotsimply accede to the government's allocation of resources and tailor the period of permissible delay accordingly.

The weight to be givento resource limitations must be assessed in the light of the fact that the government has a constitutional obligation to commit sufficientresources to prevent unreasonable delay, which distinguishes this obligation from many others that compete for funds with theadministration 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] In this case, the delay is clearly attributable to a lack of judicial resources.

The first trial date had to be re-scheduled because ajudge was not assigned to sit in Sechelt on July 4th, 2011. E.

Other Reasons for the Delay [24] Based on what I heard, there are no other reasons for the delay, other than what I have referred to as the apparent timerequirements of the case and the limits on institutional resources. [25] I will now deal with the fourth factor: prejudice to the accused. [26] Prejudice in delay applications is concerned with the three interests of the accused that s. 11 protects: liberty as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompaniesa criminal charge; and the right to make full answer in defence, insofar as delay can prejudice the ability of the defendant to leadevidence, cross-examine witnesses, or otherwise raise a defence. (See: R. v.

Godin 2009 SCC 26 , [2009] 2 S.C.R. 3.) [27] The question of prejudice cannot be considered separately from the length of delay. As Justice Sopinka wrote in Morin, 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." [28] 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 justice proceedings resulting from the delay will give rise to some prejudice. (See: R. v.Godin.) [29] In this case, the delay does not exceed the ordinary guidelines by a year or more, and accordingly, I am not prepared to inferprejudice. [30] However, Mr. Austin and his mother both provided affidavits to the Court, testified, and were cross-examined.

While I havesome concerns with respect to Mr. Austin's evidence, I accept the evidence of Mr. Austin's mother, Ms. Lewis. Ms. Lewis testified thather son suffers from schizophrenia. She further testified that while he has suffered as a result of being charged, his condition worsenedafter the first trial date was cancelled. She testified that the symptoms of his illness increased and worsened. [31] I also accept Mr.

Austin's evidence that as a result of the delay resulting from the first trial date being cancelled, his suffering hasincreased. [32] While it is to be expected that every person charged with a crime will experience some anxiety, some difficulties, and somesocial stigma from being charged while awaiting a trial, as long as a trial occurs without too long of a delay, that kind of prejudice isneutral. [33] I am satisfied that the prejudice described by Mr. Austin and his mother relate to the delay rather than simply to the fact of beingcharged. (See: R. v.

Stavast, a decision of my colleague Judge Rounthwaite, pronounced June 22, 2011.) [34] I find that this kind of prejudice should be given considerable weight. [35] It is my judgment that none of the delay has been caused by the actions of Mr. Austin and the inherent time requirements of thiscase only amount to about one month. The excessive delay must be combined with the prejudice that I find has been caused to Mr.Austin. [36] The next question is, does the excessive amount of delay and prejudice outweigh the interests of society and law enforcement? [37] While Mr.

Austin faces charges that are being proceeded by way of

summary conviction, they are nonetheless, in my view,serious charges. The more serious the charge, the greater becomes the interest of society in bringing accused persons to trial for crimesthat they are charged with. [38] 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 factors

other than the inherent time requirements of the case and the actions of the accused. [ 39 ] I find that the other delay factors and the prejudice to the accused outweigh society's interest in prosecuting Mr. Austin for trial. [ 40 ] I therefore order that the prosecution of the charges against Mr. Austin be stayed. (JUDGMENT CONCLUDED)