R. v Gibson Date:, 2010 BCPC 350

Citation: R. v Gibson Date: 20101210 2010 BCPC 0350 File No: 172264-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER ROBERT GIBSON RULING ON APPLICATION OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: S. Quendack Counsel for the Defendant: M. Klein Place of Hearing: Surrey, B.C. Date of Hearing: December 1, 2010 Date of Judgment: December 10, 2010 [ 1 ] This is an application made by Defence Counsel seeking the charge against the Accused be stayed because his right to a trial within a reasonable period of time, as guaranteed in

Section 11(

b) of the Charter of Rights , has been infringed and thus is seeking a judicial stay of proceedings. [ 2 ] Notice of Defence Counsel’s application was first made to Crown Counsel on October 19, 2010, the day of the commencement of the trial herein. Defence Counsel advised the Court of the application after Crown had closed its evidence. Defence Counsel attended Court on that day with a book of documents that were handed to Crown on October 19, 2010. Both Crown and Defence personally attended at the Case Manager’s office that day in order to

schedule one hour before me to argue the Charter breach and the balance of the half day required for the trial proper. Both Crown and Defence returned before me and advised me that the one hour time period for the application would be heard before me on December 1, 2010, and that the time secured for the balance of the trial, in case a stay was not granted, was December 17, 2010. [ 3 ] From October 19, 2010, to December 1, 2010, both Crown and Defence exchanged affidavit material and case law amongst one another. As I have stated, the parties then appeared before me on December 1, 2010, for the application. This is my decision. Case Law and Legal Principles [ 4 ]

Section 11(

b) of the Charter articulates that every person charged with an offence has the right to be tried within a reasonable period of time. As set out in R. v. Morin , 1991 CanLII 101 (SCC) , [1991] S.C.J. No. 35 , the Supreme Court of Canada set out that

Section 11(

b) of the Charter protects an individual’s right to security of the person in minimizing the anxiety and stress of criminal proceedings. It protects the right to liberty by minimizing any restrictions on one’s personal liberty as a result of pre-trial incarceration or bail terms and conditions, and will protect the right to a fair trial by endeavouring to ensure that the proceedings occur while the relevant evidence is accessible, available and fresh. Morin requires that a Trial Judge must consider the following factors in considering whether a delay in a matter is unreasonable and those factors are: (

a) The length of the delay;

(

b) Waiver of time periods; (

c) Reasons for the delay, including the time requirements for that particular case, the actions of the accused, the actions of the Crown, the limits on institutional resources and any other reasons for the delay; and (

d) Prejudice to the accused. [ 5 ] Defence Counsel submits that, particularly in the Surrey Registry, I should take judicial notice due to the Reasons of Gulbransen, J. set out in both Regina v. Moskal 2010 BCPC 294 (CanLII) , 2010 BCPC 0294 and Regina v. Matson 2010 BCPC 295 (CanLII) , 2010 BCPC 0295 , and enter a stay when applying those decisions and considering the matter before me. In both Moskal and Matson , the institutional delay in each was in ordinate and as set out in Morin , each application must be considered on its individual facts before the Court.

It is contrary to the spirit of both Moskal and Matson, and contrary to the public interests and the administration of justice, to take the quantum leap that Defence Counsel is seeking me to undertake, and simply take judicial notice that the Surrey Registry has inordinate delays in matters and with that judicial notice a stay should be granted. That is contrary to the best interests of the administration of justice and a misuse of due process to the accused and to the public.

In Moska l , and particularly at Paragraph 19, Gulbransen J stated: Over the last five years the number of court days available to handle criminal cases in Surrey has steadily decreased… 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. Further at Paragraph 21, states: ….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. ….

And noting globally, at Paragraph 23: There are not enough judges, court staff or sheriffs in Surrey. [ 6 ] It is true in this Registry that delays do occur. Some of those delays are due to the actions of Defence Counsel and some are institutional in nature, particularly due to the lack of resources, not only in criminal matters but also in family and Ministry of Children and Family matters.

It indeed is frustrating from a judicial perspective, from an internal staffing perspective, from Crown, from Defence, from lay litigants, from accused persons, from family litigants seeking a resolution for their custody issues, and for the Ministry of Children and Family Services involving emotionally charged files wherein children’s safety and well-being must be attended to as quickly as judges are able to do so. I agree. There are institutional delays, particularly in the Surrey Registry, in all matters through this Registry.

Indeed, some of those delays are clearly attributable to the cutback by the Government of British Columbia with budgetary restrictions that restrict our ability to dispense justice, whether criminally or civilly, in a reasonable period of time. It does get emotionally charged and frustrating for many when some people come to court expecting (and be entitled) to have their matter heard on the scheduled date and time and be told that, due to a lack of court time and resources, his or her matter is not being heard over someone else’s matter.

However, each application must be assessed carefully on a case by case factual basis, considering the facts and applying the legal principles. To seek a judicial stay is an extraordinary remedy and it is inappropriate to simply take judicial notice that delays exist and thus enter stays on matters. That does not serve the interests of the public, of accused persons, of victims, of children engaged in the system and of families fairly.

Both Moskal and Matson were completely 100 per cent a result of delays within the judicial system and thus judicial stays were entered and granted. [ 7 ] However the matter before me is not solely attributable to such. Facts and Circumstances [ 8 ] The offence date is October 21, 2008, and the Accused was given a Promise to Appear returnable for January 6, 2009. That time period is not unusual. [ 9 ] On January 6, 2009, the Accused did not personally attend, however, an articled student for Defence Counsel attended.

On that day, two persons, both named “Peter Gibson”, were on the Court 100 list, each for their own individual matters. The articled student for Defence Counsel did not check for which number in Court 100 was her client and thus erred wholly on her

part in speaking to the incorrect matter. The non-appearance of this Accused before me was noted in the Record of Proceedings and the matter was adjourned to February 3, 2009. The error of January 6, 2009, was attributable to Defence. [ 10 ] On February 3, 2009, the Accused did not appear; however, an agent for Defence Counsel attended and adjourned the matter to February 25, 2009. The Record of Proceedings notes that the reason for the matter being adjourned was in order that Defence Counsel may speak to his own client who did not appear. This time period was again attributable to Defence.

The agent was advised on this day who was the assigned Crown. [ 11 ] On February 25, 2009, further particulars were furnished to the articled student for Defence Counsel and she requested that the matter be adjourned to March 18, 2009. That adjournment was at the request of Defence. The Accused did not appear. [ 12 ] On March 18, 2009, an agent appeared for Defence and adjourned the matter to March 31, 2009. That adjournment was at the request of Defence. The Accused did not appear. [ 13 ] On March 31, 2009, Defence Counsel attended and once again, at Defence’s request, the matter was adjourned to April 15, 2009.

The Accused did not appear. Defence materials submit that the reason for this adjournment was to determine the availability of Crown

Counsel. However, due to the busy nature of this Registry, it is common practice known by Defence Counsel and Crown that, if adjourning any matters when an assigned Crown is known, it will be adjourned to the date when the assigned Crown is in that courtroom in order to ensure that the file is properly tracked and kept on top of by the parties. This was not done by Defence Counsel. [ 14 ] On April 15, 2009, the articled student attended and adjourned the matter to May 6, 2009, to coordinate with the

schedule of the assigned Crown. The Accused did not appear. [ 15 ] The articled student further adjourned the matter to May 6, 2009, which was to be the purpose of an arraignment hearing; however, an agent appeared for Defence Counsel on May 6, 2009, and once again, adjourned the matter to May 27, 2009. [ 16 ] On May 27, 2009, an articled student appeared and the matter was further adjourned to June 9, 2009.

Of particular importance is that there is a notation that the Justice of the Peace advised this was to be the final adjournment granted as arraignment had still not occurred. [ 17 ] Defence Counsel submits that on May 1, 2009, a without prejudice letter was “sent” (it does not say how) to Crown proposing to resolve the matter by

Section 810 peace bond. Crown materials submit that this letter was never received. On May 29, 2009, Defence Counsel sent a follow up reminder letter about the without prejudice offer for resolution and Crown quickly

schedule an interview with the Complainant for June 3, 2009. The time period from May 1, 2009, to June 9, 2009, is attributable to a delay by Defence Counsel. Proposals for resolution, whether it be in criminal, family or Ministry matters, are always welcomed if they are in the best interests of the public and those involved; however, proposals for resolution should never preclude counsel from proceeding with arraignment or setting dates in civil matters. Albeit admirable that Defence Counsel proposed a resolution, the time period of May 1, 2009, to June 9, 2009, was a delay by Defence Counsel.

Lawyers, whether in criminal or family or civil matters, do attend this Court and seek adjournments or a passage of time in order to enter into “discussions” for a resolution. That is admirable; however, for the purposes of the administration of justice and fairness to the accused, any complainants, and for civil matters, particularly children, this does not preclude lawyers from very easily setting dates or having arraignment.

Files that are resolved can always be called forward and spoken to; however, to advise a Court that there are discussions and thus not enter arraignment or set dates is not on the part of a lack of judicial resources. That is fully within the control of legal counsel, particularly Defence Counsel, who seeks a resolution on behalf of their client. It is unreasonable to attribute that to institutional delay. [ 18 ] Arraignment occurred on June 9, 2009, and Defence Counsel noted on the Arraignment Report that there was some documentation requested, including the 911 tape.

In the Crown affidavit herein, Crown endeavours to make issue that the box for Number 5 is not marked, however, all one has to do is read the Arraignment Report and it clearly indicates a list of statements and 911 requests that were made on the report. Box ticked off or not, Crown was put on notice. An agent for Defence Counsel attended without Crown Counsel and both the Trial Confirmation Hearing (TCH) and the trial dates were set. [ 19 ] Crown submits that there was no follow up request by Defence Counsel from June 9, 2009, to the TCH of April 9, 2010.

It would have been prudent for Defence to follow up when no response had been received in a 10 month period to a request, and it is perplexing given that Defence did follow up on its initial without prejudice offer in May 2009, so good trial management practice would seem to dictate that Defence Counsel should have followed up and not left an important request outstanding.

However, so, too Crown Counsel was put on notice in June 2009 about outstanding documentation, and it clearly appears that Crown did nothing about the request, therefore, so, too, should Crown Counsel have good trial management practice also in place to monitor files with a request that had been outstanding some ten months.

I have no doubt that both Crown and Defence are very busy, but good trial management practice would common sensical say that one request, and no follow up or no diarizing by either party, leaves both open for better trial or file management practice, and is wholly within the control of human choice and has nothing to do with government cutbacks or not. [ 20 ] The TCH was April 9, 2010, which was well within the acceptable time limits as set out in Morin .

I note that the Crown’s Trial Readiness Report dated April 9, 2010, signed by Crown indicates that Crown has “reviewed the file and confirm that I am ready to proceed.” A review of the file would have noted that the June 2009 arraignment request for disclosure had not been complied with. I note that Defence Counsel filed on April 9, 2010, the Trial Readiness Report which reiterates the outstanding request for disclosure which Crown was put on notice in June 2009.

However, with one month before the scheduled trial date, Defence Counsel also marks on the Trial Readiness Report that “I expect this matter will proceed on the date set.” No adjournment request was made. No request to put over the Defence TCH to another date in order to ensure that the outstanding disclosure had been complied with. In addition, Crown was not put on notice of any Charter issues or arguments by Defence Counsel. Again, it appears that neither Crown Counsel nor Defence addressed the issue of disclosure.

The transcript produced for April 9, 2010, indicates that an articled student who appeared for Defence Counsel before Stewart, J. advised the Court, “This matter is on the list for a trial confirmation today and Mr. Klein is prepared to confirm the trial date” (Page 1, Lines 17 – 19) and then states, “Sorry, Your Honour, I should clarify as well, Mr. Klein, he confirms on the anticipation that the disclosure – the disclosure will be on, and I guess we’ll be disclosing –“ (Page 1, Lines 25 – 29). The Accused did not attend.

The articled student who appeared for Defence Counsel and the Accused could have adjourned the TCH to another date and could have clearly noted to Stewart, J. the outstanding disclosure but did not do so. There is a portion of a sentence regarding disclosure, but it is very unclear as to who is to disclose to whom and therefore the Court was never advised upon reviewing the transcript. [ 21 ] The trial date was scheduled for May 13, 2010, and again, particularly given the extremely busy Surrey Registry, this trial date was well within the time parameters of Morin .

Defence Counsel requested the adjournment and it was granted by Harris, J. as two issues arose between counsels. One witness whom Crown was to call was unavailable due to medical tests, and Defence Counsel was advised of such a few days before trial of the medical tests, and counsel spoke the eve before trial and Defence was advised that Crown had decided to proceed without this witness; however, Defence noted on May 13, 2010, that Defence wished to have this witness attend. The unavailability of a witness, due to medical tests, is something that is neither a delay caused by either party.

Defence Counsel advised Harris J., “I think I would probably need Mr. Hayward as a defence witness and, as a result, I don’t think I can commence my defence.” (Page 3, Lines 8 – 10). The second outstanding matter was that of disclosure for which Crown had been put on notice. Crown Counsel had regrettably not reviewed the file nor had good file management, at least for this particular file (as I have also expressed concern by Defence Counsel), and on the day of the trial, Crown had sent a peace officer over to the RCMP to endeavour to locate the 911 transcript. This had not been done before the day of trial.

The Crown was not assigned to the file until a few weeks before the trial and

Crown advised the Court, “It appears that it fell into the gap somewhere, Your Honour.” Cutbacks by the Provincial Government are evident everywhere and not just in the delivery of judicial services; however, even with a shortage of staff and a policy wherein a Crown is not assigned until the eve of a trial, there needs to be better trial management practice in following up and ensuring all outstanding requests are fulfilled in a timely manner.

That is within the full control of Crown Counsel office and there is no reason for anything to fall “into the gap somewhere.” On the other hand, while I do note that Defence Counsel did note on two reports that disclosure was outstanding, also there was no email, telephone call, or written correspondence to Crown Counsel to follow up, and neither was the outstanding request articulated clearly to the Court on April 9, 2010.

The TCH never should have occurred and it should have been adjourned but Defence filed in any event and so the matter proceeded to the scheduled trial date which was within the control of both counsel. The trial was adjourned and Harris, J. directed counsel to attend at the Judicial Case Manager for an early trial date. [ 22 ] Both counsel attended to the Judicial Case Manager and a TCH was scheduled for September 21, 2010, and a new trial date of October 19, 2010.

When asked by this Court, neither Defence nor Crown could tell me if the delay from May 2010 to September 21, 2010, was a result of an institutional delay and thus would have an impact when considering Morin as to a delay application. Defence Counsel wishes me to take judicial notice that it is an institutional delay; however, I am unable to do so. It is unfair to both the Accused, and to the public, to simply assume that the gap from May to September 2010 was a result of judicial or institutional delay. That is unreasonable to do so.

It very well could have also been due to the scheduling of key witnesses, but again, neither counsel could advise me. It very well could have been due to the

schedule of Defence Counsel; however, neither counsel could advise me. That leaves me with no choice but to simply “neutralize” the time period from May to September 2010, as neither counsel can tell me the reason for that time period. [ 23 ] The TCH proceeded in front of Jardine, J. on September 21, 2010. The Accused did not appear. No delay notice was given and both parties (agent for Defence Counsel) advised the Court that the parties were ready to proceed to trial. [ 24 ] The trial was scheduled before me on October 19, 2010.

There is no reason for the time gap between September 21, 2010, to October 19, 2010; however, practice dictates that this is not an uncommon gap in time. [ 25 ] On October 19, 2010, the parties appeared before me. I had a number of multiple matters scheduled that day, including some matters for which I was seized. This matter was scheduled to commence at 9:30 a.m. and did not commence until 10:40 a.m. However, I also note that the transcript produced for that day indicates that Crown was not aware the matter was scheduled to be in my Court and was in another courtroom for this matter.

It is unclear from the transcript if Defence Counsel was also waiting in another courtroom. Before the matter proceeded for trial before me that day, I sent the parties to the Judicial Case Manager to obtain a continuation in order to complete the matter. My review of the transcript notes at no time did Defence Counsel raise a delay argument or a Charter argument. Counsel returned with dates. I say dates because I was unaware that more than one date was secured. The trial commenced in front of me, broke for lunch, returned and re-commenced.

Just before the afternoon break, counsel advised the Court that they had secured two dates. The first was for a Charter argument and the second was for a continuation in case the Court did not accept the Defence application. It is also here that it is critical for a determination in a delay. It is indeed true that institutional resources on October 19 th resulted in my list with more than one matter. That, however, is a reality that every lawyer knows. One judge is not assigned one matter per day. It is simply not a good use of judicial resources.

So, on October 19 th 1 hour and 20 minutes of the morning was with other matters, the trial commenced, and then the matter had to stop at approximately 3 p.m. that day as I had a seized matter and sentencing. However, when I asked both Crown and Defence during the delay application how the dates of December 1 st and December 17 th were set in order to determine if my

schedule (and therefore a restriction on institutional resources) resulted in a control of those days, neither counsel were able to advise me, therefore I cannot simply assume that the December 1 st and December 17 th dates that are assigned were purely as a result of my

schedule and thus, institutional delay. It could have been as a result of the availability of defence witnesses and/or Defence Counsel. Counsel could not tell me. Therefore, it is unreasonable for me to also calculate and equate the time period from October 19 th to December 1 st and December 17 th as a result of institutional delay. Both Crown and Defence personally attended the Judicial Case Manager, so my hands are tied if neither counsel can recall why the dates were set as they were.

It is clear from the transcript when the parties were before me on October 19 th , 2010, that the Court was not advised as to the nature of what the Charter application was to be. Had the Court been told that there was to be a delay application, I would have certainly made it very clear that dates for the application itself and any possible continuation date were to be more tightly scheduled.

Those dates were set by the Crown and Defence Counsel who appeared before me on October 19 th and this Court was not advised as to what the Charter application was to be, which I find perplexing. [ 26 ] I have considered the case law carefully and the submissions of counsel before me, and I am not satisfied that the extraordinary judicial stay is appropriate in this matter. Both counsels have furnished me with an abundance of case law to support their respective positions. Each application for a judicial stay, based on an allegation or application that there has been in infringement of

Section 11(

b) of the Charter , must be very carefully weighed and assessed, both taking into consideration case law and the facts of each individual case. [ 27 ] Defence Counsel relies upon: R. v. Ark, [2010] BCPC 63 Hicks, J. found that a stay was appropriate in a delay of 20.5 months, noting that there was no action or conduct to conclude that the accused had waived any delay, and that institutional delay attributed to 17 months of the time period. In Ark , the accused advised the court that there was a memory loss of events which impacted the potential on the ability of one to make full answer and provide a full defence.

R. v. Van Helvoort (Golden Registry, Provincial Court of BC, Files 8901-1, 8902-1 and 887-1) Webb, J. entered a judicial stay for three accused facing charges of Impaired/Over 08. The prejudice found was that the accused was not aware if he could undertake the expense of a second trial, and another accused cited the impact upon his employment.

R. v. Williams [2010] BCPC 122 The delay was 23 months, including three separate hearing dates, one due to Court overbooking and one because the accused not attending. Williams is very distinguishable as the accused was on onerous bail conditions with a number of allegations of breach arising from the original charge. This is not the matter before me. R. v. Ayers [2010] BCPC 86 Gordon, J. held that the entire delay from the pre-charge to the post of a further 13 months was solely institutional. The Court found that the resulting prejudice was stress, anxiety, financial loss and potential memory loss.

This matter is different from the matter before me as I have set out above, both institutional (Crown) and Defence have contributed to the passage of time. R. v. Lyon (Surrey Registry, File 171743-1) Miller J. on an Impaired Driving charge entered a stay, taking into consideration that on one occasion the accused was hospitalized, and that the lack of activity on the file from the initial time of the arrest was very important. Again, in the matter before me, both Crown and Defence jointly contributed to delays or passage of time in this before me. R. v.

McComber, [2010] BCPC 255 The initial delay was a 21.5 month period but the Court noticed it could be longer if the trial did not conclude on the date set for the application. In the matter before me, I find it troubling that no Charter notice was given up to the day of trial, and it was only once the matter commenced that the counsel advised there would be a Charter application, however, did not cite what the application was to be pertaining to.

In McComber , the Court was able to ascertain from counsel that the wide geographical area of the Court’s Registry and a lack of institutional resources contributed to the delay. The Court was able to obtain from counsel that some dates were offered earlier and on some dates Defence was not available but available for others.

Regrettably neither Crown nor Defence, in this matter before me, can tell me if it was a lack of Court time, institutional resources, institutional delay, defence counsel scheduling or witness availability, that resulted in the time from May 2010 to October 19, 2010, and from October 19, 2010 to December 1, 2010 and December 17, 2010. That is a passage of time that is the key, and I find it very troubling that neither counsel in the matter before me can advise me for the reason for those dates being assigned. McComber is presently under appeal. R. v.

Teske, [2010] BCPC 246 The delay considered was 17 months, three weeks and two days. There was a specific finding that criminal sitting days are being reduced in Northern British Columbia which accounted for the delay from the initial trial date of April 6, 2010, to the continuation date of September 2, 2010. Again, regrettably counsel before me cannot tell me why the passage of time from May 2010 to October 2010 and from October 2010 to December 2010. That is very significant [ 28 ] Crown Counsel seeks to rely upon the following: R. v.

Morin, 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771 I have canvassed the relevant provisions of Morin above. R. v. Godin, 2009 SCC 26 (CanLII) , [2009] 2 S.C.R. 3 The accused was charged, inter alia , with sexual assault and the delay was 30 months with virtually all of the delays being attributable to the Crown and thus risked prejudice to the accused to make a full answer and defence. In the matter before me, the time period is less for the delay calculation, and there were no onerous bail conditions, no pre trial incarceration nor was the bulk of the delay solely attributable to Crown.

R v Bazinet 2002 BCCA 536 (CanLII) , 173 BCAC 71

(2002) The Court noted that a delay caused, due to the unavailability of a witness, should not be attributable to Crown. I note that in the initial trial date, in the matter before me, there were two issues of concern if the trial was able to proceed on that day. One was the matter of Crown Counsel not having good internal file management in noting the requests for the 911 tape however, the other was a witness’ absence due to medical tests, and while Crown stated that Crown would proceed without this witness, Defence stated that Defence wanted this witness. R. v.

Fagan, 1998 CanLII 5018 (BC CA) , [1998] BCJ No. 2886 The Court reviewed Morin in great detail and states at Paragraph 19: Reported case law since Morin makes it clear that successful s. 11 (

b) challenges are now rare and highly unlikely to succeed unless the accused demonstrates serious prejudice. R v Bains 2010 BCCA 178 There was an inordinate delay of some 45 months. The Court cited Godin at Paragraph 39 : Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the

defence, and then by taking into account the reason for the delay, the prejudice to the accused, and the interests the s. 11 (

b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the tress while engaging in this detailed analysis. I wholeheartedly concur. In applying Morin and undertaking a detailed factual analays in the matter before me, one must be mindful not to “lose sight of the forest for the trees” with such an analytical approach, and to do so results in further delays to the trial itself and to further burden a wounded judicial system.

That in fact has occurred in this matter before me. Because no Charter notice was given up to the day of trial, because no attempt was made by Defence Counsel’s endeavour to

schedule a delay application prior to the trial or on the day of trial, or to advise the Court or the Judicial Case Managers regarding a delay notice, or a Charter application, it resulted in a two fold delay – one to have the application itself heard and two, for a possible continuation date. What compounds it further is, again, neither counsel can advise his Court why the time period from May 2010 to October 2010 and from October 2010 to December 2010.

I wholeheartedly concur with Bains that “…it is the responsibility of the trial judge to control the course of the proceedings” (Paragraph 76), but note that no Charter notice was given until the day of trial and thus compounded a passage of time. Further, had the Court been advised the application was to pertain to delay; this Court most definitely would have made it a requirement that both Crown and Defence were to ensure post haste immediate dates. The transcripts reveal that this was not undertaken.

R v Martin, [2000] BCJ No. 1515 Martin correctly articulated at Paragraph 13: While prejudice may be inferred or proven, the majority in Morin expressly stated the accused must demonstrate that the prejudice (whether inferred, proven, or both) is sufficiently serious for the purpose of establishing a breach of a s. 11(

b) Charter right. I am not convinced in the matter before me that there is any such evidence of prejudice, both inferred and actual. R v Lefort 16 MVR (5 th ) 36 R v Kovacs-Tatar 2004 CanLII 42923 (ON CA) , 124 C.R.R. (2d) 164 R v Ircha (Surrey Registry File 170936-1, April 14, 2010) I note the similarity in that when the matter required a continuation date before MacDonald, J. It required one as he had a continuation in the afternoon involving a serious matter.

In the matter before me, the afternoon had a criminal decision to render which is of obvious importance to that accused and to its Crown, and a family matter of a continuation date and that, too, for those persons, is of similar utmost importance. [ 29 ] There was no affidavit evidence from the Accused as to what prejudice, whether actual or inferred, that he sustained as a result of this matter. Defence Counsel submits that it is open for this Court to infer that the stress of criminal proceedings should be inferred. Yes, that is true.

However, that can be true in all criminal matters, in all Ministry of Children matters wherein parents face the daunting possibility of losing their children, and in family matters where parents also have stress and anxiety over matters dear to their heart such as their children, custody, access and support. Every single court process is open for one to infer stress and anxiety to all parties involving in the system. I have no information that any delay resulted in any medical treatment, loss of a relationship, loss or hindrance of employment, financial loss, or anything else.

The evidence given to me in that regard was extremely minimal at best. Defence has cited transcript portions wherein Crown witnesses have some difficulties in recollecting and remembering some of the matter that occurred on that day. There are other portions of the transcript where those answers to questions are very clear, and therefore for such an extraordinary remedy as a stay, I do not find that an allegation of a spotty or failing memory in this case is a valid argument in which to enter a judicial stay. I also note that while a

Section 11(

b) Application can be made anytime, for such an extraordinary remedy, if the prejudice was so amply able to be inferred or actual, why an application was not made in a timely manner, why it was not until the conclusion of Crown’s matter in the midst of this trial that such application was made, and why no Charter notice or delay notice was given to the Court at the trial in May 2010 or, at a minimum, the TCH for the second date in September 2010 or even at the commencement of the trial in October 2010? [ 30 ] I am very mindful of the requirement that this Court ensure that whether in criminal, Ministry of Children matters, and family matters, all parties to the Court system should and must have a right to a trial within a reasonable period of time, and also consider societal interests in having matters determined on their individual merits.

As set out in Morin , the security of the person, such as the effect any delay has on the person in the form of stress and anxiety, must be considered. The Accused did not make any personal attendance from the initial intake to June 2009. Court attendance by one’s self is stressful, however, the Accused did not attend. Defence and agents appeared. In addition, the liberty or any restrictions on the liberty of the accused are to be undertaken.

The accused here was not incarcerated and there was no evidence before me that he was on any onerous or significantly restrictive bail conditions that impacted his employment and/or every day life. In fact, I was not advised of what, if any, are the bail terms and conditions. The accused is entitled to a fair trial. That fair trial is entrenched. [ 31 ] I have carefully considered and analyzed the time periods. There have been delays attributed to both Crown (institutional) and to Defence.

Both such actions in the time periods that I have outlined have nothing to do with a lack of court time, but more so on internal file management by both counsel which was fully within their control. More troubling is that there are passages of time that I am unable to attribute to either Crown (institutional), a lack of court time, or Defence. Without being able to attribute those passages of time, it is unreasonable for this Court to grant a judicial stay of proceedings.

I have also considered the prejudice, if any, to the Accused and while I do not make light of the stress and anxiety of court proceedings to Mr. Gibson, every person engaged in the court process, whether as an accused, as a victim, as a Ministry of Children parent, as a family law file, or a Small Claims file, has some form of anxiety, whether inferred or actual. There was nothing before me to show that Mr.

Gibson suffered any prejudice that would entitle such an extraordinary remedy to be granted. [ 32 ] I am well aware that cutbacks to judicial resources, whether it be sheriffs, clerks, registry staff, Crown, duty counsel and judges,

has had a negative impact on the delivery of services in this Province and particularly in the Surrey Registry which handles an inordinately high volume of files in comparison to the balance of the Province and handles some files that require a vast allocation of resources. It has occurred over time and due to the internal workings of all parties involved, the system has managed due to the collective efforts of those within the system.

However, it is evident with the passage of time that some files, but not all, incur delays due to a lack of institutional resources and a lack of court time, and that is inexcusable and will cause harm to all involved in that particular file. Each must be assessed, both criminally and civilly, on a case by case factual basis. Every person engaged in the court process, whether it be criminal, family, Ministry of Family and Children Services and Small Claims, are entitled to due process and entitled to a speedy and fair trial. However, the extraordinary remedy of a judicial stay is not entered into lightly.

In the matter before me, there are errors on the part of both Crown and Defence Counsel. More troubling is that there is a passage of time from May 2010 to December 2010 that neither counsel can advise me if it is attributable to institutional delay, and therefore without being able to be furnished with an answer for that time period, I am unable to grant a judicial stay. The application is therefore dismissed. _________________________________________ The Honourable Judge Kimberley Arthur-Leung Provincial Court of British Columbia