R. v. Lam Date:, 2012 BCPC 385

Citation: R. v. Lam Date: 20120808 2012 BCPC 0385 File No: 172897-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAY VAN LAM RULING ON APPLICATION OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: M. Le Dressay (for Federal Cown) Counsel for the Defendant: R. Aftergood, Articled Student for Mathew Nathanson Place of Hearing: Surrey , B.C. Date of Hearing: August 2, 2012

Date of Judgment: August 8, 2012 [1] THE COURT: Day Van Lam is charged on Information 172897-2C with three offences under the Controlled Drugs andSubstances Act: First, that on July 21st of 2009 at Coquitlam, British Columbia, he had possession of cocaine for the purpose oftrafficking; secondly, that on July 22nd of 2009 at Langley, British Columbia, he had possession of that substance for the purpose oftrafficking; and third, that on July 22nd, 2009, he had possession of heroin for the purpose of trafficking. [2] On July 12th of 2011 a trial commenced before me following an election for that to take place in Provincial Court.

That trialdid not complete within the three days set and was adjourned to continue for four additional days beginning September 18th of 2012. [3] The accused applies for a judicial stay of proceedings pursuant to s. 24(1) of the Charter. He says his right under s. 11(

b) ofthe Charter to be tried within a reasonable time has been breached. Mr. Lam has filed an affidavit in support of his application. Inaddition, the defence has filed, with agreement of the Crown, two documents which set out the chronology of the court appearancesleading to the fixing of the upcoming trial continuation dates, and a calculation of time periods, although those calculations of timeperiods were somewhat modified by agreement during submissions.

In addition, the defence has filed transcripts of proceedings beforeme on the first three scheduled days of trial in July of 2011, and subsequent appearances before me on July 21st and 28th, and October6th and 28th of 2011. No other evidence by way of affidavit or oral evidence in direct or cross-examination is before the court. [4] Before me on this application both counsel have referred to the leading authorities which guide trial courts in addressingapplications under s. 11(

b) and 24(1) of the Charter. [5] I am going to take the liberty of referring to two decisions that I gave recently in which I summarized the guiding principleswhich I view as applicable to applications of this sort, and I do so in the interest of available time and the desire to have this decisionbefore the parties as reasonably quickly as possible, rather than to simply re-write those thoughts in other words. [6] The first is a decision in a case called R. v.

Young which was a decision given on March the 8th of 2012, and I am going toquote paragraphs 13 to 15 from that decision, beginning as follows: [13] The general principles on which applications of this type are to be assessed are set out in the decisions of the Supreme Court ofCanada in cases such as R. v. Morin, (SCC), [1992] SCJ 25, and R. v. Godin 2009 SCC 26. The right to be tried withina reasonable time under s. 11(

b) of the Charter addresses first the individual's interest in security of the person by seeking to minimizethe anxiety, concerns and stigma of exposure to a criminal charge; secondly, the individual's liberty interest by seeking to minimize theaccused person's exposure to, for example, restrictive bail conditions; and third, the right to a fair trial by attempting to ensure thatproceedings occur while evidence is available and fresh.

There is a further societal interest which parallels the accused's interest andwhich reflects the community's desire to see that persons before the courts are treated humanely and their Charter interests protected.

These interests are to be assessed against the additional societal interest in seeing serious criminal charges resolved on their merits attrial. [14] In addressing and balancing these interests the following factors are to be considered by the court: First, the length of the delayinvolved; second, waiver, if any, of time periods; third, the reasons for the delay, including the inherent time requirements of the case,actions of the accused, actions of the Crown, limits on institutional resources and other possible reasons for delay; and then a fourthconsideration which is prejudice to the accused. [15] The period to be assessed is the time elapsed from the date the charge is laid until the trial ends.

An inquiry will generally onlybe undertaken where the length of the delay is arguably unreasonable. The Supreme Court of Canada has pointed out that as a guidelinetrials in the Provincial Court should occur in the eight-to-ten-month range. This does not mean that any delay beyond this range will beunreasonable; however, a delay much beyond this range has been sufficient in this jurisdiction to raise an issue as to whether it isreasonable, and an inquiry addressing the relevant interests and factors earlier referred to is then to be undertaken. (R. v.

Young, March8, 2012 Surrey Reg #178004) [7] In paragraph 6 of the decision called R. v. Evans, given on the 4th of June of this year, the following appears at paragraph 6: [6] In addition, I emphasize that the analysis does not involve the application of a simple mathematical formula. Each case isassessed on its own facts and the balancing of the factors and interests referred to earlier. A particular period of delay may beunreasonable in one case, but not in another. (R. v.

Evans, June 4, 2012, Surrey Reg #182034-K) [8] In the analysis to follow I have in mind that the period of total delay alone is not the controlling factor. I quote as follows froma decision of Mr. Justice Hill of the Ontario Superior Court of Justice in a case called R. v. Gordon. At paragraph 18 he said: Accordingly, while some piecemeal analysis of the entire period is necessary, the ultimate question remains the reasonableness of theoverall delay. [9] The Crown carries the responsibility of bringing the accused to trial.

Although an accused person is not obliged to press for atrial, conduct of the accused which is not consistent with a speedy trial is relevant when assessing prejudice he claims to have suffered bydelay. The accused carries the burden to establish the breach on the balance of probabilities (Smith v. The Queen (1989) (SCC), 52 CCC (3d) 97 at par 106/107 SCC). Further, superior courts have made clear that a judicial stay of proceedings is anextraordinary remedy to be granted only in the clearest of cases.

Not every delay and not every head of prejudice identified will be sosignificant as to justify the granting of that remedy. [10] The starting point in the analysis is to establish the length of the delay. The period of pre-charge delay is seldom aconsideration and it is not a consideration in this case. The analysis begins with the date the Information is sworn, in this case October16, 2009, up to the date the trial is scheduled to conclude, that is, September 21 of 2012. Thus the total period under consideration here

is approximately 35-and-one-half months. That period is well beyond the guideline range and inquiry into its reasonableness is justified. [11] I will now review the events occurring within that time period and apply the factors relevant to the analysis. [12] The allegations arose from events on July 21st and 22nd of 2009 and the arrest of Mr. Lam on July 21st of that year. He wasreleased with a Promise to Appear on an Undertaking. With the exception of a condition that he not possess a cellular phone, theconditions were not particularly onerous. The Information was sworn October 16 of 2009. It appears Mr.

Lam retained counsel inadvance of the first appearance date because the chronology, Exhibit 3, shows an initial request for disclosure on November 3rd of2009. The first appearance was made November 9th of 2009. [13] Although the first appearance occurred on November 9th of 2009, the matter was not formally arraigned and the initial trial dateset until May the 5th of 2010, a period exceeding five-and-a-half months. During that time I am told Mr. Lam made 12 appearances incourt 100 before a justice of the peace before appearing on six occasions in court 103 before a judge.

The chronology, Exhibit 3,identifies initial disclosure being provided during the November and December timeframe of 2009, and thereafter discussions betweenCrown and defence counsel occurring, and discussions respecting trial time estimates occurring. On March 31st of 2010, Mr. Lam's bailwas adjusted to allow possession of a cellular phone for work purposes. Beyond these relatively cryptic descriptions, however, nofurther detail by way of evidence is presented. No transcripts of these court appearances are provided.

If transcripts are unavailable incourt 100, that is not set out in affidavit form with any kind of synopsis of those events. No transcripts of court 103 appearances areprovided. [14] Although a period of five-and-a-half months to reach arraignment and something in the order of 18 appearances appears unusualfor what I am told should be a relatively straightforward investigation of its kind, there is no evidence presented on the basis of which Icould find that the Crown acted in a manner detrimental to Mr. Lam's interests in obtaining a speedy trial during this period.

Similarly,there is no basis on which I could conclude that during this period the accused or his counsel allowed the matter to languish such that Icould say, despite his assertion in his affidavit that he has always sought a speedy resolution, Mr. Lam sought to delay the process. [15] There is no evidence of Crown misconduct or waiver by the accused of any portion of this time period.

I conclude the entireperiod of about six-and-a-half months from the swearing of the Information to arraignment reflects the inherent time requirements tobring this matter to the point that dates could be set for trial. [16] No transcripts of proceedings or other evidence describes events on May 5th of 2010 when those initial trial dates were set. Thearraignment report filed by counsel for the Crown indicates ten Crown witnesses and two days required for the Crown case.

Thearraignment report filed by the defence notes no further disclosure required, three days of trial time required, and gives notice of s.8 ands.10 Charter issues, suggesting the expectation that voir dires would be required to address search and arrest and right to counsel issues. [17] The three-day trial would begin July 12th of 2011 and conclude on July 14th, 2011. No evidence is given as to whether thesedates were the earliest available to the court or whether, and if so, to what extent defence counsel's availability or Crown witnessavailability influenced the choice of those dates.

The chronology indicates further disclosure, however, flowed to the defence in March,April and June 2011, moving towards the trial dates. The trial dates themselves were confirmed at an appearance on June 27th of 2011;there is no evidence or transcript filed as to the assertions, if any, made in court on that day. [18] The time period from the swearing of the Information to the first trial date was about 21months, and about 14 months followingarraignment.

No issue respecting delay was raised at the time with respect to these periods. [19] I have made reference on several occasions so far to the absence of evidence which documents events occurring either on therecord or between counsel. In R. v. Stewart, 2000 BCCA 399 , [2000] BCJ 1333 (BCCA), Mr. Justice Braidwood referredapprovingly to the following comments made by Madam Justice Bennett at that time in the British Columbia Supreme Court; she nowsits in the Court of Appeal. She was speaking in a case called R. v.

McPherson in 1998, and in paragraph 5 of that decision she said thefollowing: For the assistance of applications of this type in the future, the minimum material required is an affidavit setting out the chronology andthe reasons for the delays and transcripts of every appearance before a court. It is common practice for courts or counsel to address theissue of delay at interim appearances. Unless the judge hearing the application has full information in order to consider the most drasticof remedies available, that is a stay of proceedings, it is unlikely that these applications will be given consideration. (R. v.

McPherson, (BC SC), [1998] BCJ 1690 (BCSC)) [20] I include this reference because it has some bearing on the assessment of circumstances which arose on the first trial dates andwhich impact the course of the trial.

The defence says that the initial trial dates failed and an adjournment was required because duringthe cross-examination, a police officer on a voir dire, it became apparent that disclosure of information which should have occurredahead of the trial had not been provided, and ultimately once it was received the need to assess that information required an adjournmentleading to the delay to the approaching trial continuation dates in September of 2012. [21] The defence asserts the Crown is responsible for this delay by reason of the failure of investigators to provide this necessarydisclosure in a timely way.

In short, the defence says this failure of disclosure by the Crown has led to the further delay now in excessof 14 months to the September 2012 dates, extending this matter unreasonably to 35-and-a-half months since the swearing of theInformation. [22] I note here that Mr. Nathanson, counsel for Mr. Lam, does not blame Crown counsel with the conduct of the trial for the failure,but rather the police agents involved. Mr.

Le Dressay, who is speaking on behalf of the Crown on this application and who was notcounsel for the Crown at trial, acknowledged that the information in issue was required disclosure which should have been providedmuch earlier, not in the midst of the evidence as the trial proceeded. [23] But, he says, the analysis is not as simple as the defence asserts. His argument is that the original estimate of trial time requiredwas woefully inadequate to address the complex Charter issues the defence wished to canvass. He says that at the point the failure of

disclosure was identified during the second day of the trial, a civilian witness had completed her evidence and the first police officer called by the Crown was still under cross-examination. Mr. Le Dressay says, and Mr. Nathanson did not strenuously disagree, that the trial would not have concluded in any event in the time allocated. Mr.

Le Dressay says that when the defence raises Charter issues on applications to exclude evidence, there is an expectation that the defence will give notice of those issues so the Crown is not caught by surprise, and importantly in the context of this case, act in a manner which, to the greatest extent possible, ensures an adequate time estimate for the case to be completed. [ 24 ] He relies on the following which is taken from the decision in a case called R. v.

Adam in 2006 in the British Columbia Supreme Court where Justice Romilly made the following statements at paragraphs 153 and 154: However, a court must adhere to some sort of

schedule , and should be able to rely on the time estimates provided by both Crown and defence counsel... And he referenced a case called Allen , and then he continued: Defence counsel share the responsibility with the Crown to provide reasonable estimates of time. If the time required to complete a preliminary inquiry is underestimated, it is only to be expected that a court, counsel, and the system in general, will not be able to provide immediate dates for its continuation. And then he quotes as follows from the Allen decision which was an Ontario Court of Appeal decision which Mr. Justice Doherty said: The recognition and treatment of such inherent time requirements in the s. 11(

b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. And then Mr.

Justice Romilly continued: In such instances, the resulting delay in concluding the hearing is considered an inherent part of the criminal process, and therefore is viewed as neutral. ( R. v. Adam 2006 BCSC 350 ) [ 25 ] Mr. Le Dressay takes no issue with the argument that the Crown failed to provide required disclosure, but he says it was the defence failure in its obligation to fully consider the reasonable time requirements to address the Charter issues it was intending to pursue, separate and apart from the disclosure issue, which would inevitably have led to an adjournment.

He says with the benefit of the adjournment, the disclosure issue was resolved.

He says the adjournment period should be treated as an inherent time requirement of the case and neutral in the analysis, having provided a remedy to the defence's inadequate time estimate and the Crown's late disclosure. [ 26 ] It is clear from the transcript of July 12, 2012, the first day of the trial, that the Crown anticipated search issues with Charter implications arising from the arrest of the accused on July 21st of 2009 when he was pulled over while driving by a police officer, and the execution of a search warrant at his residence the following day, a search warrant which was granted, at least in part, on the basis of information arising from the earlier arrest.

That transcript discloses that counsel had discussed how best to propose to the court proceeding, whether by way of separate voir dires as the Crown wished, or by a blended voir dire as the defence proposed, on the basis of which defence counsel said he hoped to argue that a variety of Charter -violating conduct of the police should influence the outcome on both of the searches.

He suggested there might be a breach of s. 9 of the Charter by way of the arbitrary detention of a third-party passenger in the vehicle with the accused which could be relevant, relying on the Court of Appeal decision in a case called R. v. Lauriente , [2010] BCJ 242 , and also the prospect of an unlawful arrest argument respecting the accused. Defence counsel further asserted his intention to attack the facial validity of the Information to Obtain the Search Warrant, and to launch a sub-facial attack on the Information to Obtain involving an application to cross-examine the affiant.

The defence also stated an intention to argue the requirements for the granting of a telewarrant were not met. [ 27 ] After hearing submissions, I ruled that a blended voir dire would be held.

It is evident that some discussion of the alternatives occurred between counsel in advance of the trial date; however, the specifics of those discussions are not set out in affidavit form or otherwise in evidence on this hearing. [ 28 ] Counsel for the Crown at trial did not assert a concern at the outset, or during this initial argument on the process to be followed, that although no formal Charter notice was filed, he was unaware of the issues defence counsel sought to address, or was unprepared for them.

A resolution of these issues occupied most of the morning of the first day of trial. [ 29 ] Following the lunch break, the Crown called the first officer on the voir dire . His evidence was interrupted during the afternoon to hear the evidence of the civilian witness. The officer's direct evidence continued on the morning of the second day. Issues relevant to this application arose early in the cross-examination of that witness during the morning. Commencing at page 19 of the transcript for July 13th of 2011, Mr. Nathanson directed his examination to the presence of the witness, Cpl.

Basi of the RCMP, at the traffic stop which led to the accused's arrest and the search of his vehicle on July 21st of 2009. [ 30 ] Questioning on page 20 of the transcript first touches on the point which will ultimately inform the failure of disclosure asserted by the defence and acknowledged by Mr. Le Dressay. Questioning continued, moving to the point the witness says he entered a building on 202nd Street.

On page 22 of the transcript, Crown counsel objected as the questioning continued on that line on the basis that it was not relevant to what he understood to be the s.8 Charter search issues identified during submissions the prior day on the form of voir dire procedure. Submissions continued into page 24 of the transcript, at which point I ruled the cross-examination to be relevant. [ 31 ] Commencing at line 32 the following exchange occurred, and I am going to quote from approximately a page-and-a-half of the transcript commencing at line 32 on page 24, and it begins with Crown counsel speaking:

CROWN COUNSEL: Well, at some point, [indiscernible], at some point I would like to have some kind of notice of how many discrete Charter breaches the defence is alleging. I don't know. I'm finding out at the same time as Your Honour. It appears that disclosure of Charter -- Charter applications to the Crown is a quaint and antiquated notion because it just doesn't happen. But I'm in the dark and it's not conducive to a smoothly run trial, because I mean I'm finding out as we go along. I just don't know. So, this thing might go sideways. It just might draw it out for awhile.

THE COURT: Well, I don't see anything going sideways at this point. The examination seems completely relevant to the issues that have been raised and identified in the course of discussion in this court yesterday, what I understood the issues to be. It seems to me that it's completely relevant ultimately. CROWN COUNSEL: Well, my friend is alleging what Charter breaches and with respect to which people? I'd just like a list, which people and which sections. THE COURT: Well, you have -- have you been given no notice about what the Charter issues are on the voir dire ?

CROWN COUNSEL: Well, some -- THE COURT: I heard a recitation of certain issues yesterday. CROWN COUNSEL: But it was a first time for me, too. I got some more notice about 12 hours before the trial, the evening before, and some more notice the weekend before. It's piecemeal. It's fragmentary. It's late. It's -- it's difficult for me to respond to these issues in a proper way without any prior warning. I had no idea before I came here yesterday that there would -- there was an issue with respect to Ms. Se. I had no -- I was not given any notice that there was an issue with respect to this traffic stop.

All I'm saying as a general point. I'm not saying that these issues cannot be raised; I'm just saying that -- THE COURT: About the traffic stop? CROWN COUNSEL: Yes. What I was told, I came here yesterday expecting that there would be two issues of the search warrant and that there was Mr. Lam. That's all I was told, and very few details. And I'm not saying that those issues cannot be raised; I'm just saying that the defence cannot not give notice and then complain when the Crown asks for an adjournment to properly respond -- THE COURT: Well, you haven't asked for an adjournment.

CROWN COUNSEL: But this is what's coming down the line. We're probably not going to finish tomorrow. [Indiscernible] saying that as a prosecutor I just never get Charter notice and -- THE COURT: Well, here we are in the middle of the trial and you're now complaining to me that you haven't received any Charter notice. You know, you've -- I heard yesterday an outline of what was anticipated to be issues. You didn't at that point stand up and say, "I haven't had any notice of this. I need time to prepare in order to address these issues." CROWN COUNSEL: Well -- THE COURT: I didn't hear that at all.

CROWN COUNSEL: I don't have a difficulty with the evidence being heard, but in terms of responding to my friend's submissions then I might at that point -- THE COURT: Well, we'll deal with that at a point when you stand up and say, "I need some time to address something that's arisen in the evidence." CROWN COUNSEL: I'm not prejudiced from -- the Crown is not prejudiced from the evidence being heard. [Indiscernible] adjourn the whole thing. [ 32 ] At page 27, line 33 to 43, Mr. Nathanson said the following: MR. NATHANSON: Certainly, Your Honour, and I notice that my friends are here on something else.

I should just say that given that the issue isn't squarely before the court I don't intend to make submissions on it. And then what is particularly relevant here, he said: I take a very different view as to the notice that had been provided to the Crown, but given where we're at unless the court wants to hear from me on that issue I won't say any more about it. THE COURT: Well, not at this point. [ 33 ] At the noon break on that day, all parties were agreed the trial evidence would not conclude in the day-and-a-half remaining and steps would be taken by counsel to discuss a time estimate for continuation dates.

The cross-examination of Cpl. Basi continued to the mid afternoon break. Immediately following the break, the court was informed by Mr. Nathanson that he had just been advised by Crown counsel that the traffic stop conducted on July 21st, 2009 was carried out on instructions from the drug investigators for the dual purpose of enforcing a traffic violation and to allow the drug investigators to identify the vehicle driver, Mr. Lam. That circumstance had never been disclosed to the defence, and the defence argues it is inconsistent with Cpl. Basi's evidence on earlier cross-examination.

The defence demanded a will-say statement be provided from the officer with knowledge of the issues. [ 34 ] Crown counsel then said he had received new information from one of the investigators about the traffic stop but had inadvertently failed to inform defence counsel. He realized this during cross-examination but chose not to interrupt the cross- examination of Cpl. Basi so as not to, I would say and I believe he stated to the effect, deprive the defence of "his chance to attack Cpl.

Basi's credibility with respect to his answers on these questions", but would inform defence counsel at the break. [ 35 ] Crown counsel again reiterated his concern that he was unaware of the breadth of Charter issues, including the traffic stop, until defence counsel referred to it the day before. The Crown, in essence, acknowledged the failure of this piece of information to be disclosed and advised a will-say statement from the officer involved was expected that evening which would be passed on to the defence.

The court adjourned to the next day for that to occur. [ 36 ] The following morning, Crown counsel advised that despite requests, the will-say statement had not been delivered. No explanation as to why the will-say statement requested by Crown counsel had not been provided by the police. Crown counsel said that beyond him, the Crown was insisting the will-say be provided.

Although it had not been refused, the request had not been complied with. [ 37 ] There is then a discussion on the record about whether the trial could continue, addressing issues through other witnesses while awaiting the arrival of the will-say statement. The Crown had witnesses which it could call. Mr. Nathanson re-asserted his client's wish to have the matter resolved, and took the position that he required full disclosure in his client's interest before he could proceed.

Although Crown counsel acknowledged the defence position as compelling, he said the Crown wished to proceed to use the court time by calling other evidence. [ 38 ] After hearing these submissions, I adjourned the trial to the following day. I expressed the view that this was basic disclosure on what had now become an important issue on the voir dire . Although the trial could not then continue with the calling of evidence, I expected steps to be taken to have the disclosure issue resolved.

When court reconvened on Friday, July 15th, 2012, the will-say statement had reached defence counsel, the matter was adjourned a week to allow counsel to absorb that information. [ 39 ] On July 21st of 2011, the dates of September 18th to 22nd were fixed. I am advised that the court had dates available in January of 2012 but Mr. Nathanson was unavailable due to a lengthy Supreme Court trial. He had informed the court of that situation during the original trial session, and reminded me of that during the appearance on July 15th.

Although other scattered dates were apparently available, they were not adequate to allow the matter to conclude before the September 2012 dates in any event, and so the decision was made by counsel to take the four consecutive days we currently have set in September of this year. [ 40 ] I have reviewed the transcript of October 28th of 2011 during which Crown counsel, concerned about the prospect that just the application I am now dealing with would be brought, sought to address the situation by asking me to adjourn the September 2012 dates we have and set earlier dates.

I declined to do so in the absence of trial counsel and the accused who had been adjourned to those new

dates. During that appearance the Crown indicated a further witness would be called by the Crown arising from the resolution of the disclosure issue. [ 41 ] This then is a relatively more detailed outline of the circumstances which led to the adjournment of the trial.

The defence says I should lay the subsequent 14-month delay at the feet of the Crown bearing in mind the failure of disclosure was the precipitating event, and dwelling upon the obligations of the Crown and the implication that in essence the officers involved purposely withheld the dual purpose nature of the traffic stop from disclosure provided to the Crown. [ 42 ] The Crown accepts responsibility for the failure to disclose but says the defence, which is in the driver's seat on Charter applications of the sort at issue here, allowed an unreasonably short trial estimate to guide the setting of dates, bearing in mind the areas to be covered. [ 43 ] During argument on this application, the Crown initially took the position, as Crown counsel did at trial, that there was an absence of or inadequacy of notice provided by the defence of Charter issues to be raised which caught the Crown off guard and contributed to uncertainty and which destined the trial to be delayed.

Although at points in its written submission there is reference to exchanges between counsel, none of this is provided in the form of evidence on the hearing. Whatever exchanges occurred between counsel during the preparation, disclosure process and lead-up to the trial are not documented for the court.

If the Crown sought to rely on the absence or inadequacy of notice as a compelling factor in explaining why the trial time was inadequate, it was bound, in my view, to put evidence of that before me, particularly bearing in mind that the defence took issue with the suggestion of inadequate notice when it was raised at trial, and considering that Crown counsel did not at the outset say he had no notice of the issues and wanted an adjournment in order to prepare. [ 44 ] In the end, following discussion with Mr. Nathanson, Mr.

Le Dressay, on this application, withdrew the argument respecting the provision of notice but re-formulated the argument that the matter could simply not be done in three days and was destined from the outset for adjournment. [ 45 ] Although the areas defined in the opening by Mr. Nathanson were broad, I could not say that had the trial commenced with full disclosure, the evidence at least could not or would not have been heard in the three days allotted. If the evidence were complete, an adjournment for a day of argument would be a much more manageable undertaking for scheduling purposes.

The prospect of scheduling even a day to complete evidence and a day for submissions might also have been managed. But all of those possibilities were thwarted when, on the second day, the failure of police to provide in a timely manner what everyone agrees to be required disclosure, was identified.

The difficulty was compounded when, on the morning of the third of the three days of trial, the Crown was unable to provide the expected disclosure and no explanation was provided as to why that was so. [ 46 ] It is not appropriate or open to the court at this point, with the value of extensive submissions and reflection, to re-open the question of whether an adjournment should have been granted or whether the time could have been used to hear other evidence.

That ruling was made on the submissions and information available at the time. [ 47 ] I conclude it was the failure of disclosure that drove the adjournment, and that outcome rests at the feet of the Crown. The resulting period of delay might have been shortened had defence counsel been available in January of 2012. In R. v. Godin , supra at paragraph 23 , the court stated: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability. [ 48 ] Mr. Nathanson's obligations in the Supreme Court were well known and had been placed on the record. I accept that at the time new dates were set all reasonable options were considered, including the use of scattered dates, but the best outcome, by agreement, was the continuous four days set in September. I will note further that late disclosure may be remedied by an adjournment, and that has occurred here.

The fact a disclosure issue is remedied does not end the analysis in the Crown's favour where delay flows from that adjournment. [ 49 ] That leads to an assessment of the fourth factor which is prejudice to the accused flowing from delay. The Supreme Court of Canada has stated that where prejudice is not inferred or otherwise proven, the basis for enforcement of this Charter right is seriously undermined. In assessing prejudice, the court must consider whether the prejudice is related to the Charter -protected interests of security of the person, liberty, and the ensuring of fair trial rights.

The court must consider whether the prejudice established, whether actual or inferred, is of such significance that the extraordinary remedy of a judicial stay of proceedings must be imposed when balanced against society's interest in seeing serious criminal charges resolved on their merits at trial. ( R. v. Morin , supra, para 61 .) [ 50 ] It is not every prejudice and not every delay that justifies the remedy sought. I am mindful that some prejudice is inherent and reasonably to be expected when a person faces criminal proceedings.

It is the significance of the prejudice assessed against the period of delay for which the accused is not responsible that must be assessed. [ 51 ] Mr. Lam asserts in his affidavit that he has suffered actual prejudice. He does not assert prejudice to his liberty interests, bearing in mind that although he has been on an undertaking in some form since July of 2009, the conditions have not been onerous. His assertions are principally directed to his interest in the security of his person.

That interest focuses on the anxiety, concern and stigma arising from exposure to criminal charges. [ 52 ] In his affidavit, Mr. Lam asserts this is the first time he has been before the criminal justice system. That fact is stressful enough and would not be unusual for anyone, certainly anyone exposed for the first time to the justice system, and would not, in and of itself, constitute a head of prejudice to be factored in the balance.

But here he asserts the prolonging of that process and the uncertainty of the outcome, including the prospect that he could go to jail, prolonged now for almost three years has aggravated his stress and anxiety. He asserts that it has impacted his life in several ways. He says he has been unable to plan for a career in accounting. If he were convicted, he would be precluded from working in that field and his investment in time and money would be lost. That prospect has been delayed an additional 14 months. He has, for the first time, had to borrow money from his parents to assist in covering legal fees

arising from the delay and rescheduling of the trial. Those are funds they had set aside for their retirement, and he expressed stress and embarrassment in asking his parents for assistance. He has been unable to repay them. He has been unable to take full advantage of business opportunities through a marketing firm formed with his brother because of his uncertainly over the outcome of the trial and his ability to fulfil contracts he might enter with clients, that uncertainty now extended by reason of the adjournment of the trial. [ 53 ] Mr.

Lam describes complications in the relationship with his girlfriend and her family and in moving that relationship forward until the charges are resolved. In all of these areas Mr. Lam asserts feelings of stress and anxiety, and of hopelessness, powerlessness and frustration arising from his desire to see these matters resolved. He was not cross-examined on these assertions and I do not take them to have been challenged by Mr.

Le Dressay beyond the argument that his actions over the course of the period the matter has been before the court are not consistent with a desire to see a quick resolution. [ 54 ] My analysis, however, does not identify a basis to conclude Mr. Lam, by his conduct, hopes to see the matter delayed to the point the Crown case collapses. He had counsel at an early stage who commenced the disclosure process with a request to the Crown before the first appearance. There is no evidence of foot-dragging through the early stages.

The sets of trial dates were fixed within the general timeframes extant in the Surrey courthouse. No other compelling basis to support an assertion of disinterest on the part of the accused in seeing the matter resolved has been identified. I find the evidence before me established prejudice to Mr. Lam's personal security interest in the areas that I have summarized. [ 55 ] I note Mr. Nathanson did not argue in detail for a finding of actual prejudice to Mr. Lam's fair trial interests as contemplated in Morin , and no specific assertion to that effect is made in his affidavit.

Another source of material on the issue might be the trial transcripts in which at several points Cpl. Basi says that he does not recall the particular detail. However, I am not prepared to factor that evidence into the equation in respect of actual prejudice, and it was not argued by either party. [ 56 ] The next step is to evaluate in the circumstances here, considering the time period now in excess of three times the Morin guideline, whether prejudice should be inferred. In R. v. Godin , supra, at paragraph 31 the Supreme Court of Canada, Mr.

Justice Cromwell said the following: 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 that such an 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 a risk of prejudice. [ 57 ] Although there is no specific evidence of actual prejudice to Mr. Lam's fair trial interests, there is, in my view in most cases, a risk that the quality of evidence deteriorates as time passes. This occurs to some degree even within the Morin guideline period and its reasonable extensions.

The risk is enhanced as the truth-seeking expectations of a criminal trial extend to something in the order of three years and applies to the quality of the Crown evidence and can be reasonably anticipated to impact instructions counsel for the accused might be able to take from his client as the event recedes further in time. Beyond the specific evidence of impact on personal security interest referred to, an inference of that can also be drawn.

In this case there is reason to infer prejudice considering the extended period of time required to bring this matter to a conclusion at trial. [ 58 ] The charges before this court are serious. Criminal activity related to the drug trade is a significant concern for members of this community. Right-thinking members of the community want to see these matters vigorously and diligently investigated and those likely involved brought to trial for determination before a court.

Those right-thinking citizens are also concerned to see Charter rights recognized and protected. [ 59 ] In balancing these interests, I have concluded that the delay is significant and the impact on Mr. Lam of such nature and substance that the remedy of a judicial stay of proceedings is justified, and I enter that stay of proceedings now. (RULING CONCLUDED)