R. v. Oliveira-Reynolds Date:, 2010 BCPC 407

Citation: R. v. Oliveira-Reynolds Date: 20101201 2010 BCPC 0407 File No: 175455-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ISABEL MARIA OLIVEIRA-REYNOLDS RULING OF THE HONOURABLE JUDGE W.G. MacDONALD Counsel for the Crown: P. Beirne Counsel for the Defendant: P. Staplin Place of Hearing: Surrey , B.C. Date of Hearing: December 1, 2010 Date of Judgment: December 1, 2010 [ 1 ] THE COURT : I am faced with an argument this morning that the court should direct a judicial stay of proceedings in this charge against the accused Isabel Maria Oliveira-Reynolds.

It is a single count alleging failure to provide a breath sample, from the 20th of April 2009. The chronology of this incident, which is important, is that the Information was sworn on the 8th of June 2009. Seems to me not an unusual kind of a delay from the time of the offence until the time the Information was sworn. That particular date is not relevant in this case, for reasons that I will get to. [ 2 ] The Promise to Appear for the accused was issued for the 25th of June, 2009. She appeared on her own and adjourned the matter until the 16th of July to get legal advice.

On the 16th of July she again appeared on her own and adjourned the matter again to get legal advice. On August the 11th, 2009 she made her first appearance with counsel. I gather it was Mr. Staplin, who is still counsel today. Mr. Staplin then said that he entered into some discussions with the Crown about the possibility of finding some other resolution to the matter other than proceeding to trial. That did not work out, and as a result, on the 17th of September, 2009 a trial date was fixed. [ 3 ] The time estimate for the trial was one day.

Frankly, that seems a little long for a refusal case, but I do not know the circumstances and therefore it may well be appropriate; but in any event, that is important merely because the longer the trial time estimate, likely the further into the future one will have to go to find available time. In other words, if it's a two-hour trial, it is understandable there might well be trial time within six or eight months or less. It is easy to find the space for that kind of a trial.

For a one-day trial or a two-day trial or a five-day trial it becomes more difficult and therefore the trial date is likely to be further in the

distance. [ 4 ] With respect to the actual fixing of the trial date, I do not have any affidavit material, I do not have any transcripts, but I am told and I have no reason to disbelieve that this was a trial set in the usual and ordinary way, that Mr. Staplin appeared at the judicial case manager's office, he agrees that he didn’t pound the table and demand an early date, but he said this was the earliest date that was offered to him. He had earlier dates available in his calendar. I accept that information and that seems to be a normal way that a case would be set.

Nothing unusual about it in this case. [ 5 ] The defence here has given notice of this Charter argument and argues that the Charter rights of the accused have been breached, in particular the rights referred to in s. 11(

b) of the Charter, which is the right of an accused person to be tried within a reasonable time. The time that we're concerned about in this particular case is a period of, according to Mr. Staplin, 15 months and three weeks. He calls that the systemic delay. He says that he and the accused are complicit somewhat in the delays or some of the delays leading up to the date in which the trial date is actually fixed, which was September the 17th, 2009, and for that reason he is not asking the court to look beyond that point.

He is suggesting that the delay is 15 months and three weeks and says that the Crown is not at fault with respect to why that particular time, defence is not at fault, and that it is purely a question of institutional or systemic delay caused by, presumably, a lack of resources. [ 6 ] I would agree with the inference that that is too long a time in general for society to expect a trial to be set. For a relatively non- complex matter like this, one would hope that the courts could deal with these matters within a very reasonable time, such as six months. The Supreme Court of Canada in R. v.

Morin has set guidelines with respect to these matters in the term of eight to ten months. That has been revisited by numerous cases over the past number of years. The original decision with respect to delay was the case of R. v. Askov . That case brought about a flood of applications for judicial stay. That flood was reduced somewhat to a trickle following later decisions of the court, including R. v. Morin . [ 7 ] With respect to a delay, the reasons for granting a stay are set out by the court in R. v. Morin , 1991 CanLII 101 (SCC) , [1991] S.C.J. 35 .

The Supreme Court of Canada in that case set out five factors that a trial judge must consider when determining whether a delay in a particular case is unreasonable. These are: 1) The length of delay. 2) Waiver of time periods. 3) Reasons for the delay, including: (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limitations on institutional resources and (

e) other reasons for the delay; and 4) Prejudice to the accused. [ 8 ] With respect to the length of the delay, as I said earlier, it is longer than one would hope that it would take. But I do have to take into account some local factors. Clearly, the courts are entitled to consider the particular circumstances of the individual court in which the case is being heard, to some degree. This case is being heard in the Surrey Provincial Court. Judge Ball in his decision in R. v. James William Hummerston from September the 21st, 2010 refers to one of my decisions actually at an earlier date, called R. v.

Ircha , in which I reviewed at that time the local circumstances of the Surrey court and found that it was one of the busiest courts in the province, that Surrey had experienced a significant increase in population over the past number of years. I take judicial notice that Surrey is one of the faster growing cities certainly in British Columbia, if not in Canada. That has put a strain on the resources in Surrey. [ 9 ] A more up-to-date look at the circumstances in Surrey can be found in Judge Gulbransen's decision R. v. Konrad Moskal , decided the 22nd of November, 2010, so just a few days ago.

Judge Gulbransen is currently the Administrative Judge in the district. He certainly has personal knowledge at the moment. Being a judge who is required to

schedule trials and assign them to other judges, he has personal knowledge as to the circumstances in Surrey. He concluded that yes, Surrey is indeed a very busy court, that the number of judge days available in this district has decreased over the past five years and that has had an effect on the delay. He said that the effect on institutional delay has been gradual but has now become quite significant. He came to the conclusion that there were not enough judges, court staff or sheriffs in Surrey, and as a result, those shortages again are resulting in longer institutional delay.

In the particular facts of that case, he limited himself to the consideration of whether or not the delay was so lengthy that he should infer that the accused had suffered prejudice. In the end result he did make that inference and did, as a result, enter a stay of proceedings. The delay in that case was 20 months, which is a little over four months longer than the case at bar. He did, as I say, infer prejudice in that particular case. [ 10 ] In the case at bar, I believe that the delay, while certainly longer than one would hope for, is certainly not unusual. There is nothing unusual about the case.

It's the first trial date, there have been no adjournments, the Crown has not been guilty of any action which would result in delay, neither has the defence, so we are dealing just purely with institutional delay. In other cases in this jurisdiction in the Lower Mainland I am certainly aware of many cases which have had delays in the range of 15 to 17 months and the courts have not entered stays of proceedings, but it is an individual matter for case-to-case and often depends on the prejudice which is proven or not proven.

Prejudice is not only a factor, but is an important factor in considering whether or not to enter a stay of proceedings.

[ 11 ] A judicial stay of proceedings is an extreme remedy and it takes away from society the right which they have to have a case judged on its merits rather than dealt with by the courts on what they may consider to be a technical reason. So one has to balance the rights of society in general to have matters determined on their merits against the breach of the accused's Charter rights, and interwoven, as I say, and a serious factor within that is whether or not the accused has suffered any prejudice. [ 12 ] In the case at bar, Mr. Staplin concedes that there is no actual prejudice demonstrated.

He has not filed an affidavit nor called any evidence to show that the accused in the case at bar has suffered prejudice. He asks me to infer that prejudice from the time involved. In my view, the timeframe here, namely 15 months and three weeks, is not so long that I can infer that kind of prejudice. Prejudice, in my view, and I follow the words of Mr. Justice Esson in the R. v. Fagan case, 1998 CanLII 5018 (BC CA) , 1998 BCJ 2886 , a B.C. Court of Appeal decision in which he said: 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 . [ 13 ] I am satisfied that that is still the state of the law in British Columbia and the Court of Appeal certainly here, and the Supreme Court of Canada have not varied from that general view. There must be some prejudice shown. [ 14 ] In this case, there is nothing to indicate, for example, the normal kinds of prejudice that witnesses have disappeared, no longer available, that their memories are affected by the passage of time.

There is not the type of prejudice that an accused can show who has been on stringent bail conditions for a long period of time. In this case, that is not a situation where the accused was ever in custody or on bail on these matters. The only prejudice that she can really show is that she has had the strain of these legal proceedings hanging over her head, if you will, for the period of the delay, namely some 15 months.

One could probably go back to add the actual date at least of the swearing of the Information and the service on the accused when she became aware that she was going to be charged, but that is no different than the prejudice that every single accused faces when charged with a criminal offence. [ 15 ] There is nothing unusual in this case, nothing to indicate that it affected this accused any greater than anybody else. As a result, I find that I cannot infer prejudice.

There is no direct evidence of prejudice, and in the absence of prejudice the delay is not so long that it justifies that extreme remedy of a judicial stay of proceedings.

Therefore, I deny the application. [ 16 ] Since I have given this judgment contemporaneously and orally, I didn't have an opportunity to refine it, but I did want to add that I also consider that in the 15-month, three-week delay there is an Olympic break that occurred in there in which the courts in the province were basically shut down for one to two months, and that certainly increased the delays in all aspects of virtually every court certainly in the Lower Mainland and probably around the province in general.

So that's a factor in why 15 months and three weeks isn't such a long period of time in this particular case. (RULING CONCLUDED)