R. v. Moskal Date:, 2010 BCPC 294

Citation: R. v. Moskal Date: 20101122 2010 BCPC 0294 File No: 165071-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KONRAD MOSKAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: C. Proctor Counsel for the Defendant: M. Stern Place of Hearing: Surrey, B.C. Date of Hearing: September 24, 2010 Date of Judgment: November 22, 2010 [ 1 ] I granted the accused’s application for a stay of proceedings on September 24, 2010. I gave brief oral reasons on that day and indicated that I would file a written judgment.

Introduction [ 2 ] Two years and eight months, after being charged with impaired driving and refusing to provide a breath sample, Konrad Moskal is scheduled to stand trial on September 27, 2010. A chronic backlog of cases in the Surrey courthouse was responsible for 25 months of this delay. The accused’s actions contributed little to the overall delay. Consequently he asserts that his right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter of Rights has been infringed. [ 3 ] The Crown concedes that there has been a significant delay, but points out that the defendant has tendered no evidence that he has suffered any actual prejudice. The Crown further submits that the court should not infer prejudice from the length of this particular delay alone. The narrow issue in this case is, therefore, whether the delay is so lengthy that I should infer that the defendant has suffered prejudice. Relevant Legal Principles [ 4 ]

Section 11(

b) of the Charter of Rights provides that every person charged with an offence has the right to be tried within a reasonable time. Its purpose is: (1) to protect an individual’s right to security of the person by minimizing “the anxiety, concern and stigma of exposure to criminal proceedings”; (2) to protect the right to liberty by minimizing “exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions”; (3) to protect the right to a fair trial by “attempting to ensure that proceedings take place while evidence is available and fresh.” R . v.

Morin , 1991 CanLII 101 (SCC) , [1991] S.C.J. No. 35 [ 5 ] In Morin , supra , the Supreme Court of Canada set out the factors that a trial judge must consider when determining whether a delay in a particular case is unreasonable. These are: 1. The length of the delay.

2. Waiver of time periods. 3. The 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. And 4. Prejudice to the accused. [ 6 ] The judge must consider the length of the delay and evaluate it in light of the other factors listed above. The length of the delay must be calculated from the date when the accused was charged. Periods of time which have been waived should be subtracted from that calculation. [6] Complex cases, usually prosecuted by indictment, will have longer inherent time requirements than more simple

summary conviction cases, both in the time that it will take to get the cases ready for trial and in the actual time it will take to do the trial. Limits on Institutional Resources [ 7 ] There are always limitations on institutional resources - such as the number of available courtrooms, court staff, sheriffs and judges. Provincial governments have many demands on their limited financial resources from health care to education to highway construction, maintenance and safety to fighting forest fires.

Courts cannot be exempt from spending cuts or restrictions which governments must make in response to economic downturns or crises. But there are limits on how far institutional resources in the justice system can be cut or allowed to deteriorate, without attracting serious consequences. As Sopinka J. said in Morin [paragraph 48]: The Court cannot simply accede to the government’s allocation of resources and tailor the permissible delay accordingly.

The weight to be given to resource limitations must be assessed in light of the fact the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay, which distinguishes the obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. (emphasis added) [ 8 ] Having made that point, Sopinka J. set out guidelines for acceptable institutional delay.

For a case that is to be tried in Provincial Court, the guideline time frame was stated to be 8-10 months. Prejudice to the Accused [ 9 ] The degree of prejudice to an accused resulting from a delay is an important consideration in determining whether there has been unreasonable delay. As the Court pointed out in Morin , supra , many accused persons are not particularly interested in getting a speedy trial. They are content to see their trial delayed in the hope that the prosecution’s case will disintegrate.

Thus, the Court stated ( at paragraph 61): “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider.” [ 10 ] Certain prejudicial effects which flow from a lengthy delay are simple factual issues. For example, a claim that evidence has been lost is a fact which the accused can prove.

Any assertion that the memory of the accused or of an important witness has deteriorated badly can be established by adducing evidence from those persons. [ 11 ] There are also certain consequences, mainly psychological, which will arise from the mere fact that the accused has been subjected to the criminal process. These effects are only considered prejudicial if the accused has been required to endure them over an unacceptably long time.

The most obvious is when an accused has been detained in custody or put under restrictive bail conditions. [ 12 ] Some of the other possible prejudicial effects were summarized by Lamer C.J. in his judgment in Morin as including (paragraph 5): “...stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty at the outcome, and sanctions. [ 13 ] Prejudice may be inferred form the length of the delay alone. Sopinka J. stated in Morin (at paragraph 61): “...

Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.” [ 14 ] In R . v. Godin , 2009 SCC 26 (CanLII) , [2009] S.C.J. No. 26 , the Supreme Court of Canada confirmed that a trial judge may infer that an accused has suffered prejudice from considering the length of the delay alone.

In that case the Court upheld the trial judge’s decision that a delay of 30 months before trial, including a preliminary hearing, on a charge of sexual assault, was unreasonable. In discussing the issue of prejudice Cromwell J., writing for the court, stated (at paragraph 31) : “The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin at p. 801 even in

the absence of specific evidence of prejudice, ‘prejudice may be inferred from the length of the delay. The longer the delay the more likely the inference will be drawn.’ Here the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of risk of prejudice.” [ 15 ] Cromwell J. ruled that it was not necessary that the court find that the accused suffered prejudice to all of the interests protected by s. 11 (b).

Godin had initially been subject to strict bail conditions but which had been relaxed as the delay before trial increased. Cromwell J. remarked that the extent of any prejudice to Godin’s right to make full answer and defence was unquantifiable. He ruled, however, that the 30-month delay permitted the trial judge to infer that the accused had suffered prejudice to the interests categorized under “security of the person” in Morin . Circumstances [ 16 ] The offence date was October 13, 2007.

On December 13, 2007 the accused was charged with impaired operation of a motor vehicle and refusing to provide a breath sample. The accused appeared in court on December 13 and after several other appearances, a trial date was set on April 28, 2008. The time between December and April was spent getting and reviewing particulars, instructing counsel and discussing the case with Crown counsel. [ 17 ] Counsel agreed that the trial would take one day. A trial was then set for May 21, 2009.

On July 22, 2008 defence counsel applied to change the trial date because it conflicted with another case that he had scheduled for that day. The trial date was changed to August 14, 2009. The accused appeared on that day with counsel, prepared to go to trial. It did not proceed because another trial in the assigned courtroom took precedence. The other courtrooms in the Surrey courthouse were also fully booked, so that the case could not be transferred to another courtroom. Thus, the trial did not proceed.

Defence counsel appeared several times between August 14 and August 21, 2009 before setting a new trial date of September 27, 2010. [ 18 ] Counsel agree that on each occasion on which a trial was set, that it was the earliest date available after taking into account the availability of witnesses and counsel. After subtracting the delays caused by the “intake time” and the period waived by the defence (May 21 to August 14), the total institutional delay is a little more than 25 months.

Why Was There Insufficient Court Time? [ 19 ] Over the last five years the number of court days available to handle criminal cases in Surrey has steadily decreased. There has not been a particularly significant increase in the number of criminal cases coming to the Surrey courthouse over that time period. There has definitely not been a decrease either. There are many serious and complex criminal trials, often scheduled to last for many days or weeks, which take up a significant portion of the available court time.

There are numerous cases where accused persons have been detained in custody, which take priority over out of custody trials. [ 20 ] The number of judges in the South Fraser District (Surrey, Abbotsford and Chilliwack) has not decreased significantly, but the total number of “judge days” available has decreased. Over the last five years, some judges have chosen to retire, and to return as part- time judges. They sit a little less than half time.

New appointments have not been made to compensate completely for the reduction of the total judge time available caused by these retirements and by judges who have chosen to retire completely. The effect on institutional delay has been gradual but has now become quite significant. [ 21 ] In addition, reductions in court staff and sheriffs which have occurred over the last few years effectively restrict the number of court days that can be set. In Surrey, it is not uncommon for there to be days when there are not enough clerks to staff the courtrooms.

Court Registry staff who have other duties to perform are required instead to go to court. Their regular duties do not get done. Thus, when setting the number of courtrooms that will be open on any particular day, the court must take into account how many clerks and sheriffs are actually available. The most serious effect of these shortages is that it further restricts the ability of the court to add extra court days to accommodate the need for earlier trial dates. [ 22 ] The Surrey courthouse also has a busy family docket. This means that court time for family cases is always in short supply.

It is not reasonable therefore to use court time reserved for family cases for criminal cases. Every family case is important. (The effect of the shortages in court staff has meant that there are too few clerks to prepare and check orders made in Family court. Unrepresented litigants sometimes must wait five months or more to actually get a copy of any order made in their proceeding.) [ 23 ] There are not enough judges, court staff or sheriffs in Surrey. The shortages are not the result of drastic cuts but the result of attrition from gradual budget reductions.

The delay has built up gradually and has had little effect so far. Now, however, the backlog is so great and the courts so crowded, that in many cases there will be an unreasonable delay should there be even one adjournment on a trial date. As I have already said, the Provincial Court cannot expect to be immune from necessary budget cuts or spending restrictions in the face of an economic crisis. But, the Supreme Court of Canada has made it clear that the time will come when the courts can no longer accommodate an explanation for lengthy institutional delay that there is just no money for the court system.

In Surrey, that time has come. Should the Court Infer Prejudice? [ 24 ] I infer that the accused has suffered prejudice. The delay of 25 months, attributable solely to institutional delay, is more than double the guideline time frame for permissible institutional delay set by the Supreme Court of Canada. The case is not complex. Crown and defence counsel were confident that the matter could be completed within a day. The accused did not acquiesce in any of the delay.

The Crown did not tender any evidence which showed that the accused did not suffer prejudice. [ 25 ] I am supported in this conclusion by two cases from the B.C. Supreme Court. Bauman J. (as he then was), in R . v. Walker , [1998] B.C.J. No. 409 , sitting on appeal from a conviction for impaired driving in Provincial Court, overturned the trial judge’s decision that the accused had not suffered prejudice. [ 26 ] The total delay was 20 months. The trial had been adjourned once for lack of court time. The trial judge had denied the Charter

application because the accused had not provided any evidence that he had suffered prejudice because of the delay. Bauman J. ruled that the trial judge had erred in placing the burden on the accused to adduce evidence of prejudice in these circumstances. He stated (at paragraph 20): This accused does not point to obvious sources of prejudice like those noted by Sopinka J. [in R . v. Morin ] including pre-trial incarceration or restrictive bail conditions. Still, the accused’s criminal charges have remained unresolved for an extended period.

Impaired driving is properly considered to be a serious offence in our society. One cannot dismiss lightly the stress such charges place on an accused person or the potential damage to his or her reputation while they remain outstanding. [ 27 ] Bauman J. ruled that the trial judge had erred in requiring the accused to prove prejudice. The accused had not been responsible for any delay and had not waived any significant time periods. Bauman J. inferred that the accused had suffered prejudice and directed that the charges be stayed. [ 28 ] I also rely upon the decision of the B.C. Supreme Court in R . v.

Robertson , 2006 BCPC 20 (CanLII) , [2006] B.C.J. No.120 . The accused had appealed from the Provincial Court Judge’s decision that he did not suffer prejudice. Williamson J. found first of all, that the trial judge had erred in calculating the total delay. The judge did not include in that calculation the time between the swearing of the Information and the date of the accused’s successful appeal of his first conviction. That meant that the effective delay in the case was 24 months.

Most of the delay after the granting of the first appeal was caused by the Crown obtaining two adjournments. [ 29 ] At trial, the accused had tendered evidence of prejudice - having to pay extra legal fees, stress and emotional suffering, dramatic fading of memory. Williamson J. found (at paragraph 31) that the accused had “...demonstrated prejudice to a sufficient degree.” He allowed the appeal and ordered that the charges be stayed. [ 30 ] Williamson J. did not consider whether he could have inferred that there was prejudice in this case in the absence of any evidence from the accused.

In my view, however, the circumstances in Robertson could have supported an inference of prejudice, even if the accused had not tendered evidence. Conclusion [ 31 ] The accused’s right to be tried within a reasonable time has been violated. Pursuant to s. 24 (1) of the Charter of Rights , I order that there be a stay of proceedings on both counts on the Information. __________________________________ The Honourable Judge P.D. Gulbransen Provincial Court of British Columbia