R. v. Kieling Date:, 2010 BCPC 67

Citation: R. v. Kieling Date: 20100504 2010 BCPC 0067 File No: 164928-4-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARK KIELING EXCERPTS FROM PROCEEDINGS RULING ON APPLICATION OF THE HONOURABLE JUDGE R.R. LOW Counsel for the Crown: M. Schwarz Counsel for the Defendant: E. Lewis (as Agent for N. Cobb) Place of Hearing: Vancouver , B.C. Date of Hearing: May 4, 2010 Date of Judgment: May 4, 2010 [ 1 ] THE COURT: Mr. Kieling has applied for a stay of proceedings pursuant to s. 24(1) of the Charter on the basis that his s. 11(

b) right to be tried in a reasonable time has been violated. [ 2 ] Following a police investigation which commenced May the 10th, 2005, Mr. Kieling, along with Mr. Centanni, Mr. Waheed, Mr. Murray and Mr. O'Driscoll, were arrested and charged on August the 12th, 2005, with a variety of offences relating to the trafficking of illegal drugs. The charges against Mr. O'Driscoll were later stayed. [ 3 ] The information charging Mr. Kieling presently contains ten counts. Mr. Kieling is charged severally in five counts and jointly charged with Mr. Centanni on two counts. Mr. Murray is severally charged in one count, Mr.

Centanni is severally charged in one count, and jointly charged with Mr. Waheed in another count. [ 4 ] All the defendants are represented by separate counsel. Mr. Murray is represented by Ms. Percival, Mr. Centanni is represented by Mr. Fai, and Mr. Waheed is represented by Mr. Phil Rankin. Initially Ms. Connor represented Mr. Kieling. She was replaced by Mr. Johnson on October the 20th, 2005. Mr. Johnson was replaced by Mr. Cobb on April the 24th, 2007. All defence counsel involved in this matter are well known, senior busy lawyers who appear regularly at 222 Main Street in Vancouver.

[ 5 ] The Crown and Mr. Kieling have each filed a timeline reflecting each party's view of the significant events which occurred during the time this matter has proceeded. Mr. Kieling has also filed an affidavit and copies of a number of documents which form part of the court file. No transcripts were filed. No other evidence has been called. Both counsel made oral submissions and filed a brief of authorities. I have read them all and refer to a few of them in this decision. [ 6 ] Ms.

Steele for the Crown pointed to a number of decisions which suggest that a minimum evidentiary requirement for the applicant in these applications is the filing of transcripts. At the outset of this application, Ms. Steele submitted that without these transcripts it would be very difficult for the Crown to proceed. Mr. Cobb claimed that his client lacked funds to pay for transcripts and advised that instead he and members of his firm had reviewed the court's proceedings on DARS recordings of various days' proceedings to glean information as to the causes and effect of the claimed delay. Ms.

Steele pointed out that she had not had the benefit of listening to the DARS recordings as she had anticipated receiving transcripts. [ 7 ] Since I had not yet seen Mr. Cobb's materials, making it difficult to rule on their adequacy, I suggested to Ms. Steele that we proceed to hear Mr. Cobb's submission and invited her to raise again the issue of proceeding without transcripts if she wished. Ms. Steele agreed with this approach. Mr. Cobb made his submissions and then at my invitation Ms. Steele made hers. Ms.

Steele, although she continued to refer to the benefits of transcripts in her submissions, did not pursue her earlier position that the application could not proceed on the basis of the material provided by Mr. Cobb and the material she had at hand. [ 8 ] Both timelines filed by counsel are fairly similar. Mr. Cobb advised he prepared his timeline on the basis of the court's record of proceedings and the DARS recordings. Ms. Steele advised she had prepared hers on the basis of notes in the Crown's file. Both timelines made reference to May the 2nd, 2008. Ms.

Steele's timeline indicated a witness was examined that day. Mr. Cobb's intimated the same. [ 9 ] I had during the course of the trial ordered transcripts of the evidence, but when reviewing the timelines discovered I did not have a transcript for May the 2nd.

Curious why this should be, I listened to the DARS recordings for May 2nd and discovered that not only was no evidence called that day, but a lengthy discussion between counsel and the court had occurred, which, as I discuss below, was significant to the scheduling of the trial and ultimately the determination of this application. [ 10 ] While considering this application, I also obtained the clerk's log notes and DARS recordings for April 24th, 2007; May 2nd, 27th and 30th, 2008; June 16th, 2008; July 18th, 2008' August the 11th, 2008; December the 10th, 2008; December the 18th, 2008; and February the 2nd, 2009.

On some of those days there was considerable discussion regarding the scheduling of this matter. While some of this discussion was summarily referred to by Mr. Cobb and Ms. Steele in their submissions, it was not particularized in any form. [ 11 ] Since the discussions form part of the court's record, I have considered those particulars in determining this application. Nonetheless, I have concluded that it is entirely unsatisfactory for the court to have to take the considerable time required to listen to DARS recordings in order to review and determine how the proceedings affected the scheduling of this trial.

I agree with the Crown that the best way to provide this material is through transcripts of the proceedings where scheduling is discussed. While this may be expensive, it is really quite a simple matter using the court's record of proceedings, the clerk's log notes and the DARS recordings to which all counsel have access through the Court Registry, to determine the discrete areas for which a transcript is needed and thereby minimize the expense.

In short, I do not encourage the approach taken by counsel in this application. [ 12 ] In any event, there is no real dispute between the Crown and the defence regarding the timeline of this case. Essentially, the parties agree that the trial has proceeded in fits and starts over the years and today is set to complete on June the 17th, 2010, some 58 months after Mr. Kieling was first arrested and charged. [ 13 ] The dispute between the parties arises from their view of what has caused the trial to take this long. Mr. Cobb relying primarily on R. v. Ghavami , [2010] BCJ No. 416 , B.C.

Court of Appeal, submits that the most significant portion of the delay was occasioned by the Crown's insistence not to sever the charges concerning Mr. Waheed. Mr. Cobb submits that since Mr. Waheed's issues required a separate voir dire, when an adjournment of the date scheduled for this voir dire was required, the

schedule of Mr. Rankin caused the proceedings to be delayed for a significant time. The Crown submits that separate voir dires were the most efficient way of dealing with the numerous defence issues, and regardless of the Crown's scheduling claims that the real cause of delay was occasioned by Mr. Kieling's actions and the difficulties of arranging trial dates when four busy defence counsel were involved. [ 14 ] I have concluded that the decision by the Crown to add Mr.

Waheed's charge to the information was an appropriate exercise of the Crown's discretion and was part of the Crown's first level decision-making process as discussed in Ghavami . My view is borne out by the fact that the court refused to sever Mr. Waheed's charges. However, the Crown made second level decisions regarding the calling of their case which had an effect on the scheduling of this trial and ultimately those decisions had a bearing on the causes of the delay. In addition, some of Mr.

Kieling's actions had a bearing on the delay. [ 15 ] Before discussing those factors, it is useful to set out the salient scheduling events of this trial. Following his arrest on August the 12th, 2005, Mr. Kieling retained Ms. Connor and adjourned his application for bail a number of times until August the 25th, 2005, when the hearing commenced. The bail hearing was adjourned to September the 22nd, 2005, for continuation, and on that day Mr. Kieling was released on a recognizance with a number of conditions.

The most restrictive condition was a curfew from 11:00 p.m. to 6:00 a.m. seven days a week. [ 16 ] On October 18th, 2005, Mr. Kieling was arrested for breaching his bail. [ 17 ] On October the 20th, 2005, Mr. Johnson replaced Ms. Connor as counsel and conducted the s. 524 hearing. Although a finding was made against him, Mr.

Kieling was released once more on similar terms as in his first recognizance but with additional terms restricting his access to electronic communication devices and where he could reside. [ 18 ] From November 21st, 2005 to March the 23rd, 2006, the Crown continued disclosing fairly extensive materials to the defence. There were eight administrative court appearances during this period.

[ 19 ] On March 23rd, 2006, Mr. Kieling and the other defendants were arraigned and 18 days of trial were set to take place between April 30th and May 30th, 2007. At the time the Crown was aware that the defendants intended to raise various Charter issues and estimated that six of the 18 days would be required to resolve those issues. The remaining 12 days set for the trial were intended to be used for the trial proper. In the absence of any evidence to the contrary, I accept for the purposes of this application that Mr.

Kieling either concurred with this estimate of time or did not suggest any other estimate. [ 20 ] After March 23rd, 2006, the Crown continued the disclosure process. Various pre-trial conferences were set in February, March and April, 2007. [ 21 ] In July 2006, Mr. Waheed unsuccessfully applied to sever the count concerning him. [ 22 ] On April the 17th, 2007, Mr. Johnson removed himself from the record as counsel for Mr. Kieling. [ 23 ] On April 24th, 2007, Mr. Cobb appeared as counsel for Mr.

Kieling before Judge Weitzel, the assigned trial judge at that time, and successfully applied to adjourn the trial which had been set to commence April the 30th, 2007. [ 24 ] According to the DARS recording, Ms. Lewis appeared for Mr. Cobb. She advised the court that Mr. Kieling had lost confidence in Mr. Johnson and had retained Mr. Cobb the week earlier. Ms. Lewis on behalf of Mr. Kieling requested an adjournment as Mr. Cobb needed time to prepare and would not be able to proceed on the trial date set to shortly commence.

The Crown advised they were ready to proceed on April 30th, 2007, and were concerned about the delay any adjournment might cause. During the discussion concerning the requested adjournment, the Crown acknowledged that it was important for Mr. Kieling to be represented by counsel and that an adjournment was a likely outcome. [ 25 ] Ms. Lewis advised that any new trial date would be peremptory on Mr. Kieling, that Mr. Cobb would be ready to proceed by the early fall, and to that end he had a smattering of dates available in the fall and some time in January of 2008.

Judge Weitzel, after expressing concern that the trial was already nearly two years past the initial appearance date and that likely another year would pass before a new trial date could be set, granted the adjournment. Judge Weitzel then withdrew as the assigned trial judge in order to give the judicial case managers as much flexibility as possible in fixing new dates. [ 26 ] The matter was adjourned to May 10th, 2007 to fix new dates for trial. On that day, once more, 18 days were set for the trial, and as Judge Weitzel had anticipated, the dates were set between April the 23rd and July 24th, 2008.

Although I have no evidence before me, I accept on the basis of the submissions of counsel on this application that the Crown continued to allocate six days of that time to resolve various Charter issues raised by Mr. Kieling, Mr. Centanni, and Mr. Waheed, and 12 days for the trial itself. [ 27 ] On October 11th, 2007 Mr. Kieling applied for and obtained a change to his October 20th, 2005 bail conditions. His curfew was relaxed to allow visits to his wife in hospital or as allowed by his bail supervisor.

The restrictions concerning cell phones were varied to allow possession for purposes of phoning his wife and while at work. [ 28 ] A pre-trial conference took place on November the 7th, 2007 and January the 30th, 2008. At this last pre-trial conference Mr. Cobb for the first time orally particularized the nature of the Charter issues he wished to raise on behalf of Mr. Kieling and advised he would confirm this in writing. On March 25th, 2008 Mr. Cobb provided such written notice to the Crown.

The trial commenced on April the 23rd, 2008. [ 29 ] According to the transcript for April the 23rd, 2008, which although it was in the court file, was not referred to by either counsel on this application, the first order of business that day was dealing with the fact that four days of trial time had been inadvertently set between May 20th and 23rd, 2008, when I, the newly assigned trial judge, was absent on holidays.

The Crown advised that not only did this mean the remaining time was insufficient to complete the trial, but witnesses they required, and who had been subpoenaed for those dates, were not otherwise available. [ 30 ] However, in response to an offer by myself to cancel my holidays for those four days, the Crown went on to advise that in any event the 18 days originally scheduled for trial were not, in their view, going to be sufficient. All counsel for the defendants, including Mr. Cobb, agreed that they had no real certainty the trial could be completed in the allotted time, even if I gave back the four days.

Ultimately, all counsel, including the Crown, agreed that since more time was going to be needed to complete the trial, no benefit would flow from me changing my arrangements. The four days of trial set between May 23rd and 30th were accordingly cancelled. [ 31 ] The second order of business on April the 23rd, 2008 was for the Crown to lay out a

schedule to deal with the various issues raised by the defendants. The Crown intended to first deal with the issues raised by Mr. Kieling and Mr. Centanni concerning two residential search warrants and the search warrant for the offices of ICBC. The Crown also advised they were opposed to Mr. Kieling and Mr. Centanni cross-examining the affiant, and that issue would have to be determined first. Finally, the Crown advised that if I allowed cross-examination of the affiant, then the Crown intended the voir dire to be limited to a Garofoli review.

If I ruled that any of the warrants were invalid, the Crown intended to conduct a separate voir dire to determine any issues pursuant to s. 24(2). Finally, the Crown advised that the remaining issues raised by Mr. Kieling, Mr. Centanni and Mr. Waheed concerning their respective ss. 7, 8, 9, and 10(

b) Charter rights would be resolved at a third voir dire. [ 32 ] Throughout this entire discussion, none of the defendants or the Crown disagreed with the

schedule proposed by the Crown. No counsel suggested how much additional time needed to be set for the trial. Rather, all counsel, including the Crown, expressed considerable difficulty with being able to accurately estimate the amount of time required for the trial and intimated more trial dates would have to be set as the trial wended its way. [ 33 ] Following this discussion, the first voir dire commenced on April the 23rd, 2008. Mr. Kieling and Mr. Centanni applied to cross-examine the affiant of the information to obtain the three search warrants. The Crown opposed the application.

The application consumed the balance of April the 23rd. [ 34 ] The next day, April the 24th, 2008, I ruled the defendants were entitled to cross-examine the affiant. The affiant was called and

was cross-examined by Mr. Cobb and Mr. Fai on April the 24th, 25th, 28th and 30th. [ 35 ] On May 1st, the Crown examined the affiant, followed by some further examination by Mr. Cobb and Mr. Fai. According to the timelines filed by counsel, examination of the affiant continued on May the 2nd. In fact, examination of the affiant by all parties had concluded by 3:00 p.m. on May the 1st. I note this was evident simply from perusing the clerk's log notes from May the 1st. The matter was adjourned to May 2nd to hear argument. [ 36 ] On the morning of May the 2nd, Mr. Cobb, Mr. Fai, and Ms.

Steele attended to present their arguments concerning the validity of the warrants. However, a discussion initiated by Mr. Cobb ensued to the effect that one day was probably not enough to hear all of the parties' arguments, that an adjournment of the argument at the end of the day would give the Crown an unfair advantage, and in any event an adjournment might well result in a more polished argument. Mr. Cobb proposed that two more days for the argument be found prior to July 7th when the trial was next set to proceed. While Ms.

Steele maintained her argument was ready, she acknowledged the arguments could not be completed in one day and did not seriously oppose the adjournment proposed by Mr. Cobb. [ 37 ] In addition, Ms. Steele advised the court that while the next voir dire would be conducted to address the remaining issues raised by Mr. Waheed, Mr. Centanni and Mr. Kieling, the two main witnesses, Constable Sadler and Coghill, were not available to testify during the first week set in July. The remaining witnesses the Crown wished to call on the second voir dire would consume the four days set to commence the week of July the 14th.

According to Ms. Steele, it would be necessary to find additional time to hear the evidence of the two constables. No one for the defence argued against this proposition. [ 38 ] There was a general discussion regarding how much time was required for the argument to conclude the first voir dire and how much time was required to hear the evidence of the two constables.

Although there was a wide range of estimates, counsel, including the Crown, assured the court that two days were sufficient for the argument and three days were sufficient to hear the evidence of Constables Coghill and Sadler. [ 39 ] The court directed counsel to attend upon the case manager to find two days for the argument prior to July the 7th, and as many days up to three as was possible prior to July the 7th to hear the constables' evidence.

Counsel returned within the hour to advise that May 27th and 30th were fixed for the hearing of argument concerning the first voir dire, but only one day, namely June the 16th, was available prior to July the 7th, 2008, to hear the constables' evidence. No other time was available. The trial was adjourned to those dates. [ 40 ] On May 27th, 2008, the argument proceeded. The argument continued May 30th, 2008.

Just before the noon break, I advised counsel that it did not appear to me that the argument would finish that day, and it appeared we would also require June the 16th for the argument. [ 41 ] I pointed out that I had scheduled holidays for the first week of July and that I was not intending to use that time to work on a decision. I was concerned that the remaining two weeks between June 16th and July the 7th might not be enough time to complete my decision, and I was aware that the Crown wanted my decision before they determined how next to proceed with the trial. Mr.

Rankin pointed out that using June 16th for the argument also eliminated that day being used for calling the constables' evidence. [ 42 ] Counsel were directed to see the case managers over the lunch break to see if some other dates before July the 7th could be arranged.

After the break counsel advised no further dates before July 7th were available. [ 43 ] There was a further discussion in which the Crown confirmed they needed a decision on the voir dire before they could determine how next to proceed, it would take them at least a day to organize the next proceedings after they had received my decision, and more trial time was needed to hear the constables' evidence.

Ultimately, all parties agreed the argument would continue June 16th, counsel would work on the scheduling problems and address them further on June 16th. [ 44 ] On June 16th, counsel appeared to continue the argument, and I reminded them that given the volume of materials and my personal schedule, I might not have a decision by July 7th. The following discussion took place. [ 45 ] The Crown confirmed that regardless of my decision on the first voir dire, they intended to proceed with the second voir dire concerning the remaining Charter issues raised by the defendants.

However, the Crown would not be able to call the constables who were required for this voir dire. At some point the Crown confirmed again if my decision on the first voir dire struck down the warrants, they intended to proceed first with a voir dire to determine any issues under s. 24(2). The Crown again confirmed they needed a decision on the first voir dire before determining how to proceed further, and it would take the Crown at least a day to determine how to proceed. [ 46 ] At some point in the discussion, Ms. Lewis suggested that perhaps the July dates should be cancelled.

Neither the Crown nor any other counsel commented on her suggestion, but on the other hand, no one suggested any other solutions. Later that day, I resolved the situation by cancelling the dates in July, excepting the 18th, which I reserved for delivery of my decision. [ 47 ] On July 18th, I delivered my decision on the first voir dire. Counsel advised they still had no dates to continue the trial. All counsel and the Crown agreed they needed time to digest the decision.

The matter was adjourned to August the 11th to fix more dates to continue the trial. [ 48 ] On the morning of August the 11th, there was a general discussion about the time required to complete the second voir dire and the main part of the trial. The Crown advised that as a result of my decision, they would not be proceeding with a s. 24(2) voir dire but would be proceeding with a voir dire to determine other issues raised by the defendants.

In addition, the Crown would require at least another ten days for the main part of the trial. [ 49 ] Counsel were instructed to find six days for the second voir dire, a date 30 days after the voir dire ended for my decision, and 12 days to call evidence on the main part of the trial, plus an additional four days for final arguments. I opined I would need 60 days thereafter to prepare my final decision.

[ 50 ] Later that day, counsel appeared and fixed six days between May 26th and June 16th, 2009 for the second voir dire. However, dates for the continuation of the main part of the trial could not be fixed for the following reasons. [ 51 ] Mr. Cobb was on vacation in August 2009 and was not otherwise available until after March 2009. I was on holidays in September 2009. Mr. Rankin was unavailable during October, November and December 2009, and Mr. Fai had no dates until after January 2009.

In addition, the judicial case managers were not in a position to fix dates in early 2010 due to the court's hiatus during January, February and March 2010 to accommodate the 2010 Olympics. [ 52 ] The question of fixing dates for the main trial was adjourned to December 10th, 2008. On that day, counsel were still unable to fix dates and the matter was again adjourned to December 18th, 2008. [ 53 ] On December 18th, Mr. Rankin appeared and confirmed he was still involved in a very protracted matter which now required him to set aside all his available time until May of 2009. Ms. Lewis advised she and Mr.

Cobb had now been retained on the same protracted matter and were in Mr. Rankin's situation. As a result, no dates had been obtained for the main part of the trial. Both Mr. Rankin and Mr. Cobb believed that a pre-trial conference set for January 30th, 2009 would determine their involvement in this lengthy trial, and so the matter of fixing dates was adjourned to February the 2nd, 2009. The Crown took no position regarding these adjournments. [ 54 ] On February 2nd, 2009, counsel appeared. Mr. Cobb was no longer involved in the long trial, but Mr. Rankin continued to be so.

The court instructed counsel to go and fix 12 days for the main part of the trial. Twelve days starting May 31st, 2010 were set. Unfortunately, neither the court nor counsel recalled the directions made on August 11th, 2008, so an additional four days for final argument was not fixed. [ 55 ] On May 26th, 2009, the second voir dire commenced and proceeded more or less as scheduled. [ 56 ] I rendered my decision on July 24th, 2009. Following my decision, the Crown elected to call no further evidence concerning Mr. Waheed, and as a result I acquitted him. The trial now involving only Mr. Kieling, Mr. Murray and Mr.

Centanni is scheduled to continue for 12 days commencing May 31st, 2010. [ 57 ] Bearing these scheduling events in mind, as instructed by the seminal case of Morin , in order to determine this application I must consider and balance the following:

a) The length of delay.

b) Waiver of any time period.

c) The reasons for the delay, including: 1. Inherent time requirements of the case. 2. The actions of the accused. 3. The actions of the Crown. 4. The limits on institutional resources. 5. Other reasons for the delay.

d) Prejudice to the accused. [ 58 ] There is no issue that a delay of 58 months warrants an inquiry under s. 11(b). [ 59 ] It was submitted by Mr. Cobb that Mr. Kieling did not at any time waive his rights to be tried within a reasonable time. The Crown submitted that all of the delay from April the 24th, 2007 to April the 23rd, 2008 was the responsibility of Mr. Kieling as it was occasioned by his request to adjourn the trial. It was not clear from the Crown's submissions whether the Crown claimed the adjournment request was tantamount to a waiver of his s. 11(

b) rights. [ 60 ] Other than seeking an adjournment, there is no evidence Mr. Kieling expressly or impliedly waived his s. 11(

b) rights. The adjournment was, as found by the court, for the legitimate purpose of giving his new counsel time to prepare for the trial. I do not find that in applying for the adjournment Mr. Kieling waived his s. 11 rights. I will discuss my view of the impact Mr. Kieling's adjournment application had on the delay later in this decision. [ 61 ] That leaves the reasons for the delay and whether Mr. Kieling has been prejudiced by the delay. For the following reasons, I have concluded that the 20 months which passed between Mr.

Kieling's arrest and the first dates set for trial were reasonable inherent requirements for this particular trial. [ 62 ] There were four defendants who needed to retain counsel. Their bail hearings needed to be conducted. Although the evidence to be called was not complex, it was considerable. The police had relied on a number of lengthy interrelated informations to obtain various search warrants. I was not provided specifics during this application, but I have no doubt the material in the informations precipitated any number of disclosure requests by the Defendants.

It was reasonable to take eight months from August 2005 to March the 23rd, 2006 to complete these matters to the point that Mr. Kieling and the other defendants could be arraigned and trial dates set. [ 63 ] I also accept that once the parties were prepared to fix a date for the trial, given the number of counsel involved, the estimated amount of time required, namely 18 days, and the limits of resources at 222 Main Street, that it was reasonable that the trial could not be fixed to commence until April the 30th, 2006.

[ 64 ] That leaves for consideration the causes of the remaining 38 months of delay. There is no evidence that Mr. Kieling's counsel, Mr. Cobb, did anything other than have a busy schedule, to delay or hinder the proceedings. While Mr. Cobb advanced various issues on behalf of Mr. Kieling which consumed some of the time set for trial, none of those applications could be considered spurious or undertaken for any motive to postpone the trial. Although Mr.

Cobb did not give formal written notice of the various Charter issues he wished to raise until about one month before the trial was set to commence in April 2008, there is no indication the Crown was taken by surprise, ill prepared to proceed with those issues, or that any delay was created by the timing of that notice. Similarly, there is no evidence that other than the busy schedules of their counsel, any action of the other defendants or their counsel contributed to the delay. [ 65 ] There were two main causes for the delay. One main cause was Mr.

Kieling's successful application for an adjournment of the first trial. The second main cause of delay was decisions made by the Crown during the trial itself. [ 66 ] As noted above, Mr. Kieling applied for and obtained an adjournment of the first trial on April the 24th, 2007. New trial dates could not be set until April the 23rd, 2008, 12 months distant. The Crown says all of this delay was the responsibility of Mr. Kieling. I do not agree. [ 67 ] The court accepted and granted Mr. Kieling's application for an adjournment. In other words, the court found that Mr.

Kieling had a legitimate reason to seek an adjournment. There is no suggestion in the evidence that Mr. Kieling was reckless or careless about maintaining his relationship with Mr. Johnson. Indeed, it appears that once Mr. Johnson decided he could not longer represent Mr. Kieling, Mr. Kieling promptly made other arrangements for new counsel. [ 68 ] At the adjournment application, the Crown conceded quite properly that Mr. Cobb as new counsel could not be expected to be prepared to proceed with the trial then set to commence only six days away. While it was inevitable that some delay would be precipitated by Mr.

Kieling's adjournment, that does not necessarily mean he bears all the responsibility for any and all delay in fixing the new trial date. As was pointed out by Judge Weitzel during the adjournment application, the time taken to get the matter set for trial was already at the limits of acceptability.

The evidence before me is that given the schedules of counsel and the court, the next mutually available date for an 18-day trial was a year distant. [ 69 ] As was pointed in Maracle , [1996] OJ No. 166 , Ontario Court of justice, paragraph 12, later upheld by the Supreme Court of Canada at 1998 CanLII 841 (SCC) , [1998] 1 SCR 86 , when the existing system permits such an adjournment, that system needs the flexibility to make the adjournment for a relatively short period.

Given the parameters of what constitutes a reasonable timeframe in which to set a trial as provided in Morin , one year is not a relatively short period. [ 70 ] The evidence is sparse, but I accept that all counsel were permitted to find the earliest possible date. Ms. Lewis told the court that Mr. Cobb had some dates in the fall and some in January 2008. I take judicial notice that in 2008, the court at Main Street could not find time for a two-day trial, let alone an 18-day trial, in less than a year.

The lack of institutional resources was the source of some of the delay in finding a new trial date. [ 71 ] I have determined that Mr. Kieling's actions in seeking an adjournment caused six months of this delay and the lack of institutional resources caused the remaining six months of delay. That leaves for consideration the causes of the remaining 26 months of delay to the end of the scheduled dates for trial, June 17th, 2010. [ 72 ] I attribute three months of the delay to the inherent requirements of conducting the trial itself.

That leaves 23 months of delay to consider. [ 73 ] The trial commenced on April the 23rd, 2008. Eighteen days had been set aside. At the outset of the trial, four of those days were cancelled. On the one hand, the problem with those dates occurred due to a failure on the part of the court scheduling systems. On the other hand, the court offered to return the days to the trial, but the Crown advised they would in any event be looking for more than the 18 days in which to complete the trial and were content if the four days were cancelled.

As it turns out, this was an unfortunate decision. [ 74 ] When the first voir dire completed on May 1st, only May 2nd was available for argument. Regardless if the Crown had its argument ready for that day, the Crown acknowledged one day was not enough time in which to complete the arguments. The four days originally scheduled between May 20th and 23rd, with the consent of the Crown, had been cancelled and were not now available. Other days had to be found before July 7th to continue the argument.

As it turned out, the argument could not be completed until June 16th. [ 75 ] On June 16th, in the face of the Crown's determination that the trial could not continue without a decision rendered for the first voir dire, the court cancelled the July dates. [ 76 ] I note in passing that having now conducted the second voir dire, only four days were required to hear the evidence in argument.

Were it not for the Crown's need of my decision on the first voir dire, the evidence of the two constables who were not available the first week of July could have been heard during the three extra days set for the argument itself. The argument for the first voir dire could have proceeded during the week of July the 7th and the second voir dire continued the week of July the 14th. [ 77 ] Having conducted the second voir dire, I still do not understand why the Crown required my decision on the first voir dire before proceeding with the second.

No evidence called on the second voir dire was affected by my ruling in the first voir dire. It is true that if I had struck down the search warrants, a voir dire would have been required to determine the s. 24(2) issues. However, this voir dire would have had no bearing on the conduct of the second voir dire. [ 78 ] There was no demonstrated need to have the 24(2) voir dire completed before the second voir dire took place.

No explanation has been tendered by the Crown as to why my ruling was required on the first voir dire before proceeding with the second voir dire, nor has any explanation been provided as to why the two constables who were fundamental to the Crown's case were unavailable for the week of July the 7th, and why the Crown did not determine this before May 2nd, 2008. [ 79 ] In addition, the Crown, despite having had two years to consider the issue, did not determine until April the 24th, 2008 that the

18 days scheduled in 2008 were not enough time to complete the trial. No explanation has been provided as to why the Crown's estimate of the time required for the trial changed on April the 24th, 2008. No explanation has been provided as to why the Crown waited until after I cancelled the July dates to look for more time for the trial. [ 80 ] The Crown has a wide discretion as to how it runs its case. However, all the authorities point out that the Crown must always bear in mind its responsibility not to undermine an accused's persons right to a trial in a reasonable time. (See R. v.

Bains , [2010] BCCA 178, at paragraph 53.) [ 81 ] The decisions of the Crown caused a loss of 12 days of trial in July 2008. Those decisions fall within the category of second level decisions as discussed at paragraphs 54 to 56 of Ghavami. The adjournment of the second voir dire from July the 7th, 2008 to May 26th, 2009, and the need to find additional days for trial, arose almost exclusively from the actions of the Crown.

The delay in finding new dates for the second voir dire, and an additional 12 days for the main trial arose primarily as a result of the conflicts between counsels' schedule, my personal schedule, and the limits on resources at Main Street. [ 82 ] However, given the history of this trial up to April 23rd, 2008, it should have been apparent to the Crown when the scheduling decisions of 2008 were made that there was going to be a delay of at least a year in finding replacement dates to continue the trial, let alone additional time for the trial.

The conflicting schedules of counsel, the court and the limits on the resources at 222 Main Street had been an issue in setting trial dates from the outset. The first trial date could not be fixed until a year after the arraignment hearing. The second trial date could not be fixed until a year after Mr. Kieling's adjournment application. At the latest, by June 16th, 2008 the Crown should have been aware that Mr. Rankin was involved in a very long trial, as it was also being prosecuted by the Federal Crown. It should have come as no surprise to the Crown that Mr.

Rankin was going to be unavailable during the months of October, November and December of 2009. [ 83 ] Moreover, I accept that Mr. Cobb, starting August 12th, 2009, repeatedly urged the Crown to find earlier dates than May 2010. Mr. Cobb made specific proposals with a view to shortening the time required for the continuation of the trial. It appears from the copies of correspondence attached to Mr. Kieling's affidavit that the Crown did not pursue any of Mr. Cobb's proposals other than to seek input from the other counsel involved regarding their schedules.

The Crown did not, for instance, suggest any admissions as invited by Mr. Cobb. [ 84 ] According to the Crown's letter of November the 25th, 2009, as early as October the 30th, 2009 the Crown was aware that the court was not prepared to set dates on top of other matters already scheduled for counsel. However, there is no indication that the Crown contacted Mr. Cobb or any other counsel to see if these conflicting matters could be adjourned. [ 85 ] Finally, the Crown's November 25th, 2009 letter advises that the case managers might be able to set earlier dates if the court ordered this.

There is no evidence that the Crown pursued this. [ 86 ] It would be purely speculative for me to conclude the trial could have been scheduled earlier had the Crown sought admissions, attempted to persuade counsel to adjourn conflicting trials, or had applied to the court for directions. However, the absence of attempts in this regard, especially when the Crown was alive to the possibilities available, reinforce that the Crown was not paying sufficient attention to its obligation to ensure Mr. Kieling's s. 11(

b) rights were not undermined. [ 87 ] On the other hand, in 2008, due to the upcoming Olympics, the months of January, February and March had been removed from the court's rota. This exacerbated the limitations on Main Street resources.

There is no evidence the Crown was aware of this circumstance until so advised by the court's judicial case managers on August the 11th, 2008. [ 88 ] I find that the Crown was responsible for 18 months of the delay and the lack of institutional resources was responsible for five months delay between 2008 and June the 17th, 2010. [ 89 ] In short, the inherent requirements of this trial are responsible for 23 months of the delay. Mr. Kieling is responsible for six months of the delay. The institution is responsible for 11 months of the delay.

The Crown is responsible for 18 months of the delay. [ 90 ] The remaining factor to be determined is the existence of prejudice. Evidence of prejudice is set out in Mr. Kieling's affidavit. I have also considered the terms of his bail and other general considerations apparent from the record. I have drawn the following conclusions regarding any prejudice Mr. Kieling has suffered. [ 91 ] There is an error in Mr. Kieling's affidavit. He did not spend 68 days in pre-trial custody; rather, he spent 41 days. Nonetheless, I accept Mr. Kieling's view of that time as set out in the affidavit. [ 92 ] Mr.

Kieling also discovered on a couple of occasions there were penal consequences for breaching his bail conditions. [ 93 ] Mr. Kieling has been required to make numerous court appearances. He has not failed on any occasion to do so. The trial has already taken numerous days and will take quite a few more. [ 94 ] Mr. Kieling was released on bail conditions. Those conditions included a daily curfew between September the 22nd, 2005 and May 2nd, 2008. His choice of residence since September the 22nd of 2005 has been supervised and restricted.

His ability to possess electronic communication devices was restricted between October the 7th, 2005 and May 2nd, 2008. His choice of associates has been restricted since 2005. [ 95 ] Mr. Kieling sets out in his affidavit that he has lost touch with a person who co-leased with him one of the premises searched during the investigation. While it is not clear from the affidavit what significance this person is to Mr. Kieling's defence, I accept Mr. Kieling may have contemplated calling her as a witness. [ 96 ] Finally, Mr. Kieling, like most people charged with a serious offence, is very anxious about the outcome.

A conviction might well result in a significant jail sentence. The uncertainty of his situation affects his ability to make concrete plans for the future and

affects his relationship with his family. [ 97 ] As noted in Bains , paragraph 60, s. 11(

b) protects three interests of Mr. Kieling; his liberty, his security of person, and the right to make full answer and defence. Mr. Kieling's affidavit addresses all three of these interests but not all of these interests have been affected to the same degree. [ 98 ] As in R. v. Godin , [2009] SCR No. 26, paragraph 31, the unreasonable delay of 23 months from May 2008 to June the 7th, 2010 exceeds the guidelines by over a year, and I infer prejudice from that alone. Although the charges Mr.

Kieling faces are not perhaps as scurrilous as those in Godin , they are nonetheless very serious and attract considerable opprobrium in the community. While there is no evidence of any particular publicity about the charges, I infer from Mr. Kieling's affidavit that his friends, family and immediate community are well aware of his situation. [ 99 ] I accept that Mr. Kieling has had to obtain medical treatment for the anxiety caused him while he awaits for a resolution of this trial.

This puts that aspect of his prejudice at a slightly higher level than the usual stress occasioned by criminal charges hanging over an accused's head. [ 100 ] The liberty interests of Mr. Kieling were substantially affected for a considerable period of time. Not only did he spend 41 days in pre-trial custody, but he was on a curfew for approximately two and a half years. On the other hand, his curfew was not nearly as onerous as the house arrest terms imposed in Ghavami . Prior to May 2nd, 2008, the curfew was varied to allow Mr. Kieling to visit his wife in hospital.

Moreover, the curfew did not affect more than Mr. Kieling's social life. Finally, his curfew was removed entirely on May 2nd, 2008, near the beginning of the unreasonable 23 months of delay. [ 101 ] While Mr. Kieling's liberty interests were substantially affected for the first three years of the total delay, that has not been the case since May 2nd, 2008. [ 102 ] I accept that Mr. Kieling's legal fees have imposed a heavy financial burden upon him. I do not accept, as submitted by the Crown, that Mr.

Kieling is the author of his own financial misfortune in that he has made a number of applications concerning the evidence the Crown intends to rely on. Not only is this his constitutional right, but none of his applications have been spurious or calculated to delay the proceedings. In addition, the trial has taken a lot longer than even the Crown anticipated. On the other hand, it was plain from the outset that this trial was going to take some time and the high cost to hire senior counsel for a long trial is a natural consequence.

This claim of prejudice is entitled to some weight. [ 103 ] While the outstanding charges may have caused Mr. Kieling to delay making plans for his future, there is no evidence that Mr. Kieling had any particular plans for his future in 2005. I give little weight to this claim of prejudice. [ 104 ] Finally, while Mr. Kieling may have intended to call his co-lessee to testify, it is impossible to assess on the evidence the impact the lack of her evidence may have on Mr. Kieling's defence. I appreciate it may be difficult strategically for the defence to disclose this sort of detail, but I do not even have Mr.

Kieling's assertion that this person is essential to his defence. I give little weight to this claim of prejudice. [ 105 ] In addition, there is no evidence that Mr. Kieling's ability to make full answer and defence is affected by the deterioration of witnesses' memories or the destruction of evidence. The evidence against him, at least at face value, is recorded in surveillance logs and police notes. If anything, the effluxion of time might well favour Mr. Kieling in that regard. [ 106 ] I find that Mr.

Kieling's liberty and security of person interests have been moderately affected throughout the entire delay; however, the prejudice to his ability to make full answer and defence is quite marginal. [ 107 ] As instructed by the Court of Appeal in Ghavami, paragraphs 51 and 52, I must weigh the causes of delay and then balance the various factors, including prejudice, to determine whether the delay of Mr. Kieling's trial has been unreasonable. [ 108 ] The 23 months of delay caused by the inherent time requirements of this trial, plus the delay of six months attributed to Mr.

Kieling as a result of his request to adjourn the first trial are entitled to receive virtually no weight. [ 109 ] I give some weight to the six months of delay caused by the inability of the institution to provide new trial dates after the first trial was adjourned. [ 110 ] I give more weight to the 11 months of the delay caused by the inability of the institution to provide trial dates after 2008. [ 111 ] I give the most weight to the 18 months delay which I attributed to the Crown. [ 112 ] The fundamental issue to be determined in this application is whether the 23 months of delay to which I have ascribed the most weight, coupled with the real and inferred prejudice to Mr.

Kieling I have found, outweighs the public interest in his trial proceeding on the merits. Fifty-eight months is a very long time for a trial of this nature to remain outstanding. Only six months of the delay arose from decisions made by Mr. Kieling. The length of time it will take after May 2008 to complete the trial is of itself well outside the guidelines set down by Morin . Contrary to the situation in Ghavami and Bains , a bulk of the 23 months delay after May 2008 can be attributed to actions of the Crown. [ 113 ] The prejudice to Mr. Kieling is similar to that described in Bains .

In particular, there is little prejudice to Mr. Kieling's right to make full answer and defence. On the other hand, the real and inferred prejudice to Mr. Kieling has continued for over a year longer than in Bains and Ghavami . [ 114 ] It is an extremely close call, but ultimately I conclude that the balance has not tipped in favour of Mr. Kieling's s. 11(

b) rights over the public's interest in his charges being tried on the merits. Mr. Kieling's application for a judicial stay of proceedings is dismissed.

(RULING ON APPLICATION CONCLUDED)