R. v. Johnson and Johnson Date:, 2012 BCPC 214

Citation: R. v. Johnson and Johnson Date: 20120314 2012 BCPC 0214 File No: 175358-C-2 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID GLEN JOHNSON and JENNIFER ANNE JOHNSON RULING OF THE HONOURABLE JUDGE K. W. BALL Counsel for the Crown: C. Choi Counsel for the Defendants: B. Jackson, Q.C. (for David Johnson) A.P. Serka, Q.C. (for Jennifer Johnson)

Place of Hearing: Surrey, B.C. Date of Hearing: March 13, 2012 Date of Judgment: March 14, 2012 [1] THE COURT: These are brief oral reasons with respect to an application by each of the accused for a remedy, in this case astay of proceedings, pursuant to s. 24(1) of the Charter of Rights and Freedoms, on the basis that their rights to be tried within areasonable time have been breached. Mr. and Mrs. Johnson, you're sitting there and I'm going to be reading for some time, but I will tellyou the result. The result is the proceedings are going to be stayed, so you can both relax.

Obviously I'm going to find, once thesereasons are concluded, that there has been a breach of the Charter right and the appropriate remedy here is a stay of proceedings. Chronology and Background [2] The accused were arrested for production of marihuana, in this case a relatively small grow operation by standards we'veseen in this community, 267 plants. They were also arrested for possession for the purpose of trafficking and a hydro bypass in thepremises. I have heard little or nothing about the case, except for the few details that are sprinkled here and there in these reasons.

Thefirst appearance of the accused was on June the 24th, 2009, the day the Information was sworn and both appeared in court with a singlecounsel representing both of the accused through counsel designation. A first disclosure package was provided on July the 14th, 2009,their next appearance date. Seven subsequent appearances occurred without progress, and finally an arraignment hearing was scheduledon October 27th, 2009. [3] On that day the matter of fixing dates was again adjourned to November 18th, 2009, when Mr. Serka made a firstappearance on behalf of Jennifer Anne Johnson.

As he had just received particulars, which were described as voluminous, the matterwas adjourned to December the 1st, 2009. [4] On that date the arraignment hearing took place and an election was made for a trial in the Provincial Court and a three-daytrial was set at the earliest available date on the court

schedule for January 25th to 27th, 2011, with a pretrial conference to be held onDecember the 7th, 2010. The pretrial conference was convened on December 7th, 2010, and adjourned to January 4th, 2011, and againto January 10, 2011. [5] Then on January 10th when the pre-trial conference was completed, both parties confirmed readiness for trial. It was notedon January 4th, 2011, Crown counsel provided an expert report dealing with fingerprint evidence together with production orders for theevidence of seven police officers to the defence on that day, only 21 days prior to the trial date.

Curiously, the actual expert report wasdated in 2009 but Crown had only received the report in 2011. Counsel for Mr. Johnson noted on the record, "So we are proposing to put this over to Monday, January the 10th, for the morning sitting in this courtroom and my friends and I will be having some discussion tosee what we're going to do for the trial upcoming." There was no waiver of any requirement for timely notice of expert evidence.

However, on January the 10th, 2011, at the pretrial conference the scheduled trial dates January 25th to 27th were confirmed by allparties. [6] On January 17th, 2011, a scant ten days before the scheduled first trial date, counsel for Mr. Johnson appeared before thecourt on a call-ahead basis and advised that due to an unanticipated conflict unrelated to retainer issues, he could not continue to act forMr. Johnson. The conflict had to do with another client of Mr. Merrigan's and nothing to do with any conduct by Mr. Johnson. Based onR. v. Cunningham, 2010 SCC 10 , [2010]1 S.C.R. 331 then counsel for Mr.

Johnson was excused without further inquiry. Neither Mr. Johnson nor Mr. Serka was in court on January the 17th, 2011. Mr. Johnson was left a week before his scheduled trial datewithout counsel and with little prospect that new counsel could be retained and review extensive particulars in that short a time. OnJanuary 19th, 2011, the file was brought before the assigned trial judge again on a call-ahead basis. The court was told that the Crownwas ready to proceed and Mr.

Johnson needed to seek new counsel due to a conflict that had nothing to do with him but related to anothercase in which his first counsel was retained. As Mr. Johnson put it on the record, referring to past counsel, "He had to bail on me, so I'mleft with no counsel here." After some brief discussion, the court adjourned the trial dates and directed that the parties re-attend onFebruary the 2nd, 2011. There was no discussion on January the 19th, 2011, about the waiver of any delay by Mrs. Johnson or anydiscussion about the Crown proceeding against Mrs.

Johnson alone, that is, severing the two accused and proceeding simply againstMrs. Johnson. Both the Crown and Mr. Serka were ready to conduct a trial on January 25th, 2011. [7] On February 2nd, 2011, Mr. Brian Jackson appeared as new counsel for Mr. Johnson. The file was then adjourned toFebruary 18th, 2011. On that date, Mr. Jackson reported that he had requested but had not yet received the particulars from previouscounsel, so the file was again adjourned to March the 11th, 2011. On that date and without any further delay, new dates were scheduledfor March the 13th to 16th, 2012, for trial. While both Mr.

Jackson and Mr. Serka had earlier dates available, the new dates were theearliest available dates in the Surrey registry. [8] On January 12th, 2012, the file was brought before the court to confirm the new trial dates. Defence counsel were preparedto confirm the dates. Crown counsel was not prepared to confirm those dates, as Crown counsel advised the court, "The Crown needs toconfer with our PPT experts and so at this point is not ready to confirm the trial." The file was then adjourned by the court to January26th of 2012.

On January 26, 2012, the trial dates were confirmed and notice was given of an application for a stay of proceedings basedon an alleged breach of s. 11(

b) of the Charter of Rights and Freedoms, the matter which I am dealing with today. [9] The Crown is not responsible for any particular delay in this case, although it appeared that necessary disclosure was notmade in a timely way prior to the first trial date. Neither accused is responsible for any delay in this file. There has been no conduct ormisconduct by either accused that has contributed to the delay. There has been no waiver of any Charter rights by either accused and thematter of waiver has never been addressed before the court.

The delay in this case from the first appearance on June the 24th, 2009, untilMarch the 13th, 2012, is 993 days, the chronological delay, as the cases refer to it. None of the parties suggests that this is a complex

matter and this court has heard a great number of marihuana grow operation cases, which have become common in this jurisdiction. Investigations on such matters, apart from periods of surveillance prior to the execution of a search warrant, tend to be circumspect andcompleted quickly. While Crown counsel submitted that an intake delay of five months and one week was appropriate because that iswhat occurred here, I find that the intake delay, that is, the time allotted to the parties to be ready to fix a trial date, should be twomonths. I do so based on the facts of this case, that two experienced counsel, Mr.

Serka and Mr. Jackson, engaged to act for the accusedat different times, each took slightly less than two months to become ready to fix dates to conduct trials. I do not intend by this finding toset a standard of any kind. It is simply a finding based on the facts of this particular case and the conduct of experienced counsel whoare before me. I refer in that regard to R. v. Morin, (SCC), [1992] S.C.J. 25 (para. 41). That said, then the institutionaldelay from the first appearance to the first available trial date is 13 months and 25 days minus the two months for intake delay, or 11months and 25 days.

That delay is well beyond the standard set by the Supreme Court in R. v. Askov, [1992] S.C.R. 1199 and R. v.Morin, which I have already cited, but it is not out of keeping with local experience in this very busy jurisdiction of Surrey, BritishColumbia, given the resources available to this court. For proper reasons but relating only to the accused David Johnson but through nofault attributable to him, the first trial date was adjourned. There was no waiver of delay by either of the accused. Crown counsel thensubmitted that the delay due to the withdrawal of counsel for Mr. Johnson and the entry of Mr.

Jackson as his new counsel should betreated as neutral time. It was calculated at 51 days. While that might be true for Mr. Johnson, Mrs. Johnson's right to be tried within areasonable time is not subsumed in her husband's concern with counsel. The second trial date was set exclusively based on availablecourt time. Both counsel had earlier dates available but those dates could not be accommodated in the burgeoning trial list in thisregistry. Excluding the 51 days from the calculation, for argument's sake, the delay to the second trial date is a further 12 months and 12days.

The parties, at least as far as the defence of Mrs. Johnson was concerned, were ready to conduct the trial in January of 2011. Therefore, in her case the institutional delay would properly be 26 months. In her husband's case, the institutional delay would be 24months, assuming the 51 days of neutral time applies. [10] The accused have advanced evidence of prejudice. I should say with respect to both of the accused, whom I heard giveevidence. I had the advantage of seeing each of them testify and I am satisfied that they were genuine in their evidence and I accept theirevidence as credible and reliable.

The affidavits that they filed are quite similar to their testimony. I will review with some care theaffidavit of Mrs. Johnson, because it contains one particular piece of material which contributed, in my view, to proof of significantprejudice. [11] Mrs. Johnson testified that she is married to Mr. Johnson and they have a five-year-old son. She was unemployed for a periodof time and managed to find employment last year as a kitchen helper and housecleaner in a seniors' facility.

She worked very hard in heremployment and was obviously satisfactory to her employer, who was interested in moving her from a part-time to a permanent position,but she in order to move to that permanent position had to pass a criminal records check. She consented to a criminal records checkbecause she had no criminal record, among other things. Very curiously, she received a letter in January of 2012 which must have putfear in her heart, given the very significant supporting role she was playing as a breadwinner for her family.

The letter from the Ministryof Public Safety and the Solicitor General dated January 3rd, 2012, tells her that she is required to file a written submission as to what ledup to the offences, the details of the offences, who was involved, the age of the victims, and the letter asked if she had attended angermanagement, drug abuse or alcohol abuse counselling. I find this to be a remarkable letter sent by government to someone who has notbeen convicted of any offence.

While I appreciate the need for employers to complete criminal records checks, I am not aware of anyprovision which has done away with the right to remain silent and the presumption of innocence. It is no surprise that counsel for Ms.Johnson would tell her, or anyone in a similar situation, that replying to this letter certainly in its requested terms, would be a violation ofher rights and a reply not appropriate. That said, Ms.

Johnson has fortunately been retained by her employer, but not without someconsiderable anguish caused in part by the letter to which I have just referred. [12] Following the arrest of herself and her husband, the Ministry of Children and Families, acting no doubt to protect their child,removed the child from their care. The child was placed with grandparents and eventually Mr. and Mrs. Johnson moved in with thegrandparents. But they were still under strictures imposed by the Ministry which required that they not go anywhere outside of thathouse alone with their child.

In other words, they were required to have some other of the grandparents with them, no doubt anembarrassing and anxiety-producing activity. I am satisfied in all the circumstances that Mrs. Johnson has suffered significant anxiety. She referred to anxiety attacks; she referred to a fear of losing her employment, which was obviously genuine. She referred to adeterioration in her marriage and a number of arguments with her husband that were continuous. She referred to taking medications todeal with the anxiety that she was suffering and the need to take prescription antidepressants for a period of time.

She found theantidepressants made her quite ill and unable to function. She declined to take them further. The couple did not have the financialresources to take

part in any sort of counselling program, and to ask them to produce evidence that they were somehow involved insomething like counselling in those circumstances would be asking them to prove a negative. That, to me, is not something that the courtought to consider in these circumstances. [13] Mr. Johnson also gave evidence about being involved in a new career after a long period of time as an Air Canada employeeand attempting to start a business in the movie industry.

Unfortunately, that business required capital, and following his arrest here andloss of other employment, capital was not available and the movie industry company also ceased to have any potential because hecouldn't contribute further capital to it. He likewise referred to the issues of children and the situation with his child and child-minding. Expenses had been paid in the past to allow both parents to work, in fact, required both parents to work to keep their child in daycare. Once both parents weren't working, Mr. Johnson had to spend some time involved in daycare.

As a result, he was only able to work part-time and certainly unable to make any career advances while he was doing that. He also suffered from anxiety and concerns not onlyabout his employment, but about his wife's employment to which I have already referred.

As I said earlier, I am satisfied these peoplehave genuinely expressed their issues, which have been exacerbated by the very considerable delay here, and so it is my finding in thiscase that there is real and significant prejudice which has been proven by both of the applicants. [14] I turn for a moment to the issues which the court is obliged to consider, which are set out in R. v. Morin, which I have citedabove.

Those issues are the length of delay, waiver of time periods, reasons for delay including the inherent time requirements of thecase, actions of the accused, actions of the Crown, limits on institutional resources, other reasons for delay and prejudice to the accused. I have dealt with prejudice to the accused, I do not intend to deal with it again. I have dealt with the length of delay, I have dealt with thewaiver of time periods. There was no waiver at anytime of any time period. Concerning the reasons for delay, I have spoken above ofthe inherent time requirements of this case.

There are no actions of the accused or the Crown that have particularly affected the delay in

this case. It seems that in these circumstances it is a question of the resources available to the court, and based on those resources the delay here has simply been too long. [ 15 ]

Section 11(

b) of the Charter of Rights and Freedoms and the cases of Askov and Morin require the court to consider the two societal rights that need to be balanced, that is, the public interest in having the laws enforced by bringing offenders before the court in a prompt and timely fashion that increases public confidence in the administration of justice as is said in MacDougall . One could say there are also significant public interests in having a case determined on its merits following a trial where evidence is called. But s. 11(

b) also seeks to protect the public's interest in having accused persons treated fairly. Here, as I have said, is a marihuana grow operation case which will now not proceed. It is not the most significant case of its kind, by any stretch of the imagination, but the accused have not been treated fairly in these circumstances and therefore because of the breach of

Section 11(

b) described above, I am granting the stay of proceedings which counsel requested. The applications of both Mr. Johnson and Mrs. Johnson are granted. (RULING CONCLUDED)