R. v. Flumerfelt Date:, 2011 BCPC 389

Citation: R. v. Flumerfelt Date: 20111205 2011 BCPC 0389 File No: 15787-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL TROY FLUMERFELT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. M. MERRICK Counsel for the Crown: M. West Counsel for the Defendant: D. Fairweather Place of Hearing: Sechelt , B.C. Date of Judgment: December 5, 2011 [ 1 ] THE COURT: Daniel Troy Flumerfelt is charged with two charges of utter threats. This is an application by Mr. Flumerfelt 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. [ 2 ] I will first review the facts as they have been outlined for me for the purposes of this application and the factors I must consider. I will then apply those principles to the facts in this case and conclude with my ruling. [ 3 ] Mr. Flumerfelt is alleged to have committed both offences on December 21st of 2010. The Information charging him with the offences was sworn February 3rd, 2011. Mr. Flumerfelt's first appearance was February 16th, 2011. [ 4 ] On March 16th, 2011, Mr.

Flumerfelt's case was set for trial, with a trial date of November 29th, 2011. [ 5 ] A subpoena was served upon the complainant, Mr. Gibson, in early August, 2011. Subsequently Crown Counsel learned that Mr. Gibson would not be available for the trial November 29th, 2011, as he was leaving for China in early November, 2011, and would not be returning to the Sunshine Coast until the end of June of 2012. [ 6 ] On October 5th, 2011, Crown Counsel applied for and received an adjournment of the trial. The case was adjourned to the trial coordinator to set a new trial date.

[7] The trial coordinator, exercising her discretion, declined to set a new trial date pending the outcome of this application. Counselagreed that a new trial date would not be set for September 2012. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [8] THE COURT: The general approach to a determination as to whether or not the right to a trial within a reasonable time has beendenied is not the application of a mathematical or administrative formula, but rather by judicial determination, balancing the interestswhich the

section is designed to protect against factors which either inevitably led to delay or otherwise that cause the delay. (See: R. v.Morin (SCC), [1992] 1 S.C.R. 771). [9] The burden, of course, is for Mr. Flumerfelt to show an infringement of his right to be tried within a reasonable time. The factorsthat I must consider are: 1. the length of 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; and

e) other sources for the delay. [10] The fourth factor is prejudice to the accused. (See: R. v. Askov [1992] S.C.R. 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 the accused is not in custody. [13] In this case, it would be approximately 19 months from the date the Information was sworn to the proposed trial date, andapproximately 18 months from the date the case was first set for trial to the proposed trial date. [14] Regarding waiver, Crown Counsel concedes that there was no waiver of any period of delay by Mr.

Flumerfelt. [15] I, therefore, conclude that the length of unwaived delay of approximately 19 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. Inherent Time Requirements [16] This is not a complicated case nor a lengthy case. It is alleged that during a dispute over monies owed by Mr. Gibson to Mr.Flumerfelt, Mr. Flumerfelt threatened to kill Mr.

Gibson and damage his property. [17] Systematic delay starts to run when the parties are ready for trial but the system cannot accommodate them. (See: R. v. Morin.) [18] In this case, the inherent time requirements were one month. B. Actions of the Accused [19] In this case, Mr. Flumerfelt did not act in any way consistent with a person who was trying to delay matters. Crown Counselsuggested the Mr. Flumerfelt was responsible for two months delay due to the fact that a new trial has not been set. With respect, Idisagree. C.

Actions of the Accused [20] There is nothing to suggest that Crown Counsel did not act in a timely fashion in applying for an adjournment of the trial onlearning that the complainant was unavailable for the November 29th trial date.

[21] However, the Crown Counsel chose to apply for an adjournment of the trial based on the complainant's unavailability.

Thecomplainant is away from November 29th, 2011, to June 30th, 2012. [22] Accordingly, I find that the actions of the Crown with respect to the adjournment application result in seven months of delay. [23] With respect to the two month delay resulting from the trial coordinator exercising her jurisdiction not to set a trial date pendingthe outcome of this application, in my view, if Crown Counsel was concerned about the additional delay that resulted from the trialcoordinator exercising her discretion not to set a trial date pending the outcome of this application, Crown Counsel, not the accused,bears the onus of having the matter placed back before a judge of this court for an order confirming that a trial date is to be set prior tothe determination of this application. [24] In accordance with the local practice in Sechelt, that option was available to Crown Counsel.

It must be emphasized that theonus is on the Crown Counsel to bring Mr. Flumerfelt to trial. (See: R. v. Askov.) [25] The Crown's failure to ensure that this matter was reset for trial, I find, has resulted in two additional months of delay. D. Limits on Institutional Resources [26] 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 for personnel and facilities for the administration of justice. As we do not live in such a world, some allowance mustbe made for institutional resources. (See: Mills v.

The Queen (SCC), [1986] 1 S.C.R. 863.) [27] 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 have unlimited funds, and other government programs compete forthe available resources, this consideration cannot be used to render s. 11(

b) of the Charter meaningless. [28] 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. There is a point in time in which the court will no longer tolerate delaybased on a plea of inadequate resources. (See: R. v. Morin.) E.

Other Reasons for the Delay [29] In this case, there are no other reasons for the delay other than those that I have previously identified. [30] I will now deal with the fourth factor, prejudice to the accused. [31] Prejudice in delay applications is concerned with the three interests of the accused 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 and cloud of suspicion that accompaniesa criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to leadevidence, cross-examine the witnesses, or otherwise raise a defence. (See: R. v. Godin 2009 SCC 26 , [2009] 2 S.C.R. 3) [32] The question of prejudice cannot be considered separately from the length of delay.

As Justice Sopinka noted 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." [33] 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.) [34] In this case, the delay does not exceed the ordinary guidelines by a year or more, and accordingly, I am not prepared to inferprejudice. [35] That said, Mr. Flumerfelt provided an affidavit and he was cross-examined upon it. I accept Mr. Flumerfelt's evidence that hehas experienced some anxiety, some difficulties, and some social stigma from being charged and awaiting trial. That said, as long as thetrial occurs without too long of a delay, that kind of prejudice is neutral. [36] None of the delay has been caused by the actions of Mr. Flumerfelt.

The inherent time requirements of this case amounted toonly one month. Actions of the Crown are responsible for nine months, and limits of institutional resources are responsible forapproximately eight and a half months. [37] The excessive delay resulting from the actions of the Crown, the limited institutional resources, and the unavailability of thecomplainant is significant. However, the prejudice suffered by Mr. Flumerfelt relates more to the fact of being charged rather than to thedelay. [38] Accordingly, I find that the prejudice suffered by Mr.

Flumerfelt is at the lower end of the range. [39] The next question is: does the excessive amount of delay and the prejudice outweigh the interests of society and lawenforcement? [40] Mr. Flumerfelt faces charges that are being proceeded by way of

summary conviction. In the continuum of offences, these

offences are less serious. The more serious the charge the greater becomes the interests of society in bringing accused persons to trial for crimes that they are charged with. [ 41 ] It is my judgment that the little amount of prejudice suffered by Mr. Flumerfelt does not outweigh society's interests in bringing those charged with criminal offences to trial. This is so, even though the offences Mr. Flumerfelt faces are not the most serious. [ 42 ] At this point in time, Mr. Flumerfelt's application is denied. [ 43 ] This matter will be sent back to the trial coordinator for the purposes of setting a trial date.

That said, I will grant Mr. Flumerfelt liberty to renew this application on the date set for trial, should the trial be adjourned due to a lack of court time. [ 44 ] I am doing that because the statistics that are available to me for this year show that one in every five criminal cases that come before this Court are adjourned for a lack of court time, and in my view, it is appropriate to grant Mr. Flumerfelt the liberty to renew this application on the day appointed for trial, should the case not proceed on that day due to the lack of court time. (JUDGMENT CONCLUDED)