R. v. Stavast Date:, 2011 BCPC 157

Citation: R. v. Stavast Date: 20110622 2011 BCPC 0157 File No: 177161-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT STAVAST REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Crown: A. Jantunen Counsel for the Defendant: M. Sanders Place of Hearing: Surrey , B.C. Date of Hearing: June 1, 2011 Date of Judgment: June 22, 2011 [ 1 ] Robert Stavast is charged with impaired driving, driving with a blood alcohol level exceeding the legal limit, and dangerous driving, contrary to ss. 253(1) (a), 253(1)(b), and 249(1) (

a) of the Criminal Code . The offences are alleged to have occurred on May 5, 2009 in Surrey, B.C. The information charging him with these offences was sworn October 2, 2009, and his trial was set for June 1, 2011. He applies for a judicial stay of the proceedings against him on the ground that his right to be tried within a reasonable time, guaranteed by s. 11(

b) of the Canadian Charter of Rights , has been violated by the 20-month delay from swearing the information to trial. [ 2 ] The Crown concedes that this period is “of sufficient length to raise an issue as to its reasonableness” and that Mr. Stavast made no waiver of his right. However, the parties disagree on the characterization of one period of delay, whether Mr. Stavast was actually prejudiced by the delay, whether prejudice should be inferred, and whether a stay should be granted. Reasons for Delay [ 3 ] The chronology is as follows.

Although the offence is alleged to have occurred in Surrey, when he was arrested on May 5, 2009, police gave Mr. Stavast a Promise to Appear in the Provincial Court in Vancouver on August 20, 2009. When he did so, an information had not been sworn as required by s. 505 of the Criminal Code . Once the information was sworn on October 2, 2009, the new process issued to obtain his attendance in court in Surrey was a summons, issued November 6, 2009 and served by regular mail, to appear on December 16, 2009.

The delays in swearing the information and issuing the summons were not explained by the Crown. [ 4 ] The parties agree that the period from first appearance on December 16, 2009 to arraignment hearing on February 11, 2010

constituted normal intake requirements. At the arraignment hearing the first trial date of April 11, 2011 was set for a one day trial. Thedelay of 14 months from arraignment hearing to the first date set for trial was due to the lack of resources in the Provincial Court inSurrey. Details of the continuing, now chronic, shortage of judges, sheriffs and court staff in the Surrey court are outlined in R. v.Moskal 2010 BCPC 294 , 2010 BCPC 0294.

The province-wide shortage is described in “Justice Delayed – A Report of theProvincial Court of BC concerning Judicial Resources” issued September 14, 2010, and “Provincial Court Judge Complement as of May31, 2011,” both found at www.provincialcourt.bc.ca. [5] In April 2010, the Judicial Case Manager advised counsel that because the April 11, 2011 trial date coincided with a ProvincialCourt education conference a judge would not be available on that day. On May 7, 2010 a second trial date of June 1, 2011 wasscheduled.

The scheduling conflict caused an additional delay of about 1½ months, resulting in a total institutional delay of 15½ months. [6] None of the delay is attributable to the defence. Defence counsel, Mr. Sanders, submits that the 2½ months delay betweenswearing the information and the first appearance should be attributed to the Crown in the particular circumstances of this case. Crowncounsel, Mr. Jantunen, says all or part of this period should be considered part of the inherent intake requirements of the case. [7] With regard to the disputed period, Mr.

Sanders says the decision of the justice of the peace to mail a summons rather than haveit personally served or have Mr. Stavast arrested with an endorsed warrant caused a longer delay than necessary between the swearing ofthe information and his first appearance on December 16, 2009. I note that Mr. Stavast’s address was in Salmo. There is no evidencethat other forms of process would have achieved an earlier first appearance, nor that the six weeks provided for service of the summonswas unusually long. However, if the Promise to Appear had required Mr.

Stavast to attend court in Surrey and the charging system hadworked as it should, the information would have been sworn by August 20, 2009 and no delay for process after the swearing of theinformation would have been necessary. [8] Accordingly, I accept Mr.

Sanders’ submission that since the failure of police or Crown to ensure the information was sworn inaccordance with s. 505 resulted in the need for new process, and since the need for new process resulted in delay between swearing theinformation and the first appearance, the 2½ months delay from swearing the information to the first appearance should be attributed to“actions of the Crown” (this term includes actions by police) rather than to normal intake requirements.

I see no logical basis for dividingthis period and attributing a portion to inherent intake requirements since the entire period of delay resulted from the actions of theCrown. [9] I therefore conclude that the delay attributable to the lack of institutional resources, the scheduling conflict, and the Crown totals18 of the 20 months delay in bringing Mr. Stavast to trial. Prejudice [10] Mr. Stavast filed an affidavit and gave oral testimony on the issue of prejudice. The prejudice relevant to this application must berelated to the delay, rather than simply to the fact of being charged. The facts that Mr.

Stavast was given a 90-day AdministrativeDriving Prohibition after being arrested for these offences, that during this period his position as a truck driver was filled by someoneelse, and that he did not return to work for 13 months, all resulted from his being charged with drinking driving offences. Those factswere not affected by the delay in obtaining a trial. [11] However, in his affidavit Mr.

Stavast also asserted that having the charges outstanding has caused him considerable stress andanxiety since he is the primary support of his family and he will lose his driver’s licence and his ability to work as a truck driver ifconvicted. He added that the uncertainty has weighed heavily on his mind every day, but did not mention having suffered any otherimpact from the stress. [12] Crown counsel submits that I should reject Mr. Stavast’s evidence and find that he has not proven that he suffered actualprejudice because he changed his evidence and contradicted himself. Mr.

Sanders argues that the contradictions only concern recentevents and should not affect the rest of his evidence. [13] The evidence establishes the following facts. Shortly before May 15, 2011, Mr. Stavast instructed his lawyer that he had beenrehired by his former employer and was currently employed as a truck driver. On the morning of trial he swore an affidavit based onthose instructions, stating he had re-secured employment with his previous employer in July 2010 and that knowing that he would losehis driver’s licence and job if convicted was causing him stress.

Later in the morning his affidavit was amended to say that he wasdismissed from his employment on May 20, 2011. [14] The evidence establishes that Mr. Stavast’s employment history with N.D.B.

Trucking includes the following: • before May 2009 he was in an accident when driving a large company transport vehicle; • in May 2009 he was fired after being given a 90-day Administrative Driving Prohibition in the incident that is the subject of thecurrent charges which include impaired driving and dangerous driving; • in July 2010 he told his boss that he had stopped drinking and was rehired to haul telephone poles between the East Kootenays andthe coast; • on May 15, 2011 he was involved in an incident at the Hunter Creek weigh scales for which he was given a 24-hour drivingsuspension and notice that a 90-day Administrative Driving Prohibition would begin in 21 days unless it were successfully disputed; • on May 16, 2011 he told his boss about the previous day’s incident; • after that his boss received a report that Mr.

Stavast had been seen after May 15, 2011 picking up beer from the Christina LakeStore while driving a commercial vehicle belonging to the company; and

• as a result of that report, he was fired on May 20, 2011. [15] Mr. Stavast admitted that he wasn’t really honest when he swore the original affidavit on the morning of trial, omitting his loss ofemployment and saying he would lose his job if convicted. He admitted that he wouldn’t be able to work as a trucker for three months if his dispute of the Administrative Driving Prohibition issued for the May 15th incident is unsuccessful. In addition, since he is alreadyunemployed, being convicted of the current offences would not affect his employment status. [16] Moreover, Mr.

Stavast was evasive when questioned about being fired on May 20th, and his testimony contradicted his amendedaffidavit. Although Mr. Stavast’s amended affidavit says he was dismissed on May 20, when asked if he’d been fired he said his bossnever said he was fired; he just told him to remove his stuff from the truck and go home. He admitted that he hadn’t worked since thattime, but when asked if this sounded like being fired he said “yes and no.” [17] Given his employment history, it appears that there were factors in addition to the possibility of prohibition on conviction thatjeopardized Mr.

Stavast’s employment and would have worried a reasonable person. He had had an accident in a company truck and hadtold his boss he had stopped drinking at the time he was rehired. On his evidence, it was the report that he’d picked up beer in acompany vehicle that resulted in his most recent firing.

If he were sincerely concerned about losing his job, one would expect Mr.Stavast to have avoided that behaviour. [18] Because he swore an affidavit on the morning of trial without correcting information that was no longer true, because hisevidence is contradicted by his behaviour, and because of his evasive manner and inconsistent testimony, I do not find Mr. Stavast to bea credible witness on the issue of the stress he claims to have suffered because of the outstanding charges.

As a result, I find that he hasnot established actual prejudice on the balance of probabilities. [19] However, the Supreme Court of Canada has made it clear that prejudice may be inferred from the length of the delay, and thelonger the delay the more likely that such an inference will be drawn (R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3). Moreover, delay before the information is sworn may be considered when assessing prejudice (R. v. Fridleifson 1999 BCCA 351 atpara. 6). The Supreme Court of Canada decision in R. v.

Carter, [1986] 1 S.C.R., cited by the Crown as authority contradicting thisproposition, was clarified in R. v. Morin (SCC), 71 C.C.C. (3d) 1: “Pre-charge delay may in certain circumstances have an influence on the over-all determination as to whether post-charge delay isunreasonable but of itself it is not counted in determining the length of the delay.” [20] Assessment of prejudice requires examination of the effect of delay on the interests s. 11(

b) of the Charter is designed to protect:accused persons’ interests in liberty; security of the person, in the sense of being free from the stress that accompanies a criminal charge;and the right to make full answer and defence. Mr. Stavast’s liberty interest was not affected by being held in custody; nor was hesubject to bail conditions. There is certainly a risk that witnesses’ memories have faded since the date of the alleged offences, a matterrelevant to trial fairness. However, there is no indication that Mr.

Stavast contemplates calling defence evidence, and impairment of theCrown’s two civilian and one police witnesses’ memories could affect the defence either positively or negatively. An inference ofprejudice to his liberty and fair trial interests is therefore not warranted. [21] In the absence of conflicting evidence, it might be reasonable to infer some prejudice to the right to security of the person duringa delay of the length in this case when pre-charge delay is taken into account.

That stress might well be increased where an accusedrisks losing his driver’s licence, a requirement for employment in his field. However, in this case there is evidence rebutting such aninference: the facts that Mr. Stavast had at least one other cause for concern about losing his job and that he engaged in behaviour thatjeopardized his employment. For these reasons, even taking into account the pre-information delay, I would not infer any prejudice inthis case. Analysis [22] In R. v.

Morin the Supreme Court of Canada established 8 to10 months as a guideline for acceptable institutional delay for a casetried in Provincial Court. However, a delay exceeding this guideline is not necessarily unreasonable. When considering an applicationfor a judicial stay due to delay, a judge should not apply a mathematical formula, but must balance the interests s. 11(

b) is designed toprotect against the factors causing delay. While society shares an interest in seeing that defendants are treated fairly and humanely, italso has an interest in ensuring that lawbreakers are brought to trial and dealt with according to the law. [23] Defence counsel cited more than twenty cases and Crown counsel ten, with four of the cases being cited by both. The leadingSupreme Court of Canada cases, R. v. Morin and R. v. Godin, are the most helpful since they establish the factors to be considered andclarify the balancing process to be undertaken by a judge deciding a delay application.

Other cases were cited as authorities for certainspecific propositions. However, the majority of the cases cited were decisions on delay applications in other trial courts.

Because eachdelay case demands a weighing of individual circumstances, other trial court decisions are largely fact-dependent and are of limitedprecedential value, serving primarily to illustrate trends. [24] In assessing these cases I have attempted to distinguish between the length of the total delay and the length of institutional andCrown delay, since total delay may include periods waived or caused by the defence which could affect the balancing process. I haveborne in mind that some of the cases pre-dating R. v.

Godin do not appear to have given sufficient consideration to the issue of inferredprejudice; that some have fallen into the error highlighted in R. v. Guilbride 2006 BCCA 392 of adopting the balancing processdescribed by the minority in R. v. Morin rather than that mandated by the majority; and that some of the judgments lack detailedanalysis, appearing to have been nisi prius judgments given in circumstances where the exigencies of a trial required an immediatedecision. [25] I did not find the older Provincial Court cases cited by Mr. Sanders (R. v. Hitchen BCPC April 23, 1991; R. v.

Sommer BCPCJanuary 25, 1993; R. v. Jones BCPC April 8, 1994; R. v. Thompson BCPC November 2, 1995; R. v. Mulcaster BCPC February 20,1996; R. v. Beatch BCPC July 7, 1998; and R. v. MacDonald BCPC December 2, 1998) to be helpful. They all pre-date R. v. Godin,

and one pre-dates R. v. Morin. Appellate authorities decided since the 1990s have accepted institutional delays significantly longer thanthe 12 and 13½ months for which stays were granted in these cases. [26] R. v.

Stamford (BCPC) Courtenay information # 34198, April 21, 2008, a 3½ page oral judgment in a 2008 case where a staywas ordered for institutional delay of 13 months, is of little assistance because the judgment does not make clear the nature of theprejudice found and whether it was actual or inferred, and does not explain how the required factors were balanced. [27] In the more recent cases, decided in 2010 and 2011, judges granted stays for institutional and Crown delays ranging from 13½ to19 months when actual prejudice was established (R. v. Ayers 2010 BCPC 86 (Surrey); R. v.

Brighton 2010 BCPC 379 (CampbellRiver); R. v. Ark 2010 BCPC 63 (Surrey); R. v. Ollenberger 2010 BCPC 1146 (Prince George); R. v. Matson 2010 BCPC 295 ,2010 BCPC 0295 (Surrey); R. v. Lyon (BCPC) Surrey Registry, information #171743-1, June 18, 2010; and R. v. Bowes (BCPC) SurreyRegistry, information #174275-1, January 11, 2011). In those cases where stays were granted for post-information institutional andCrown delay shorter than 17 months, there was pre-information delay attributable to the Crown in addition to actual prejudice (R. v.Ayers and R. v.

Brighton). [28] However, in recent cases where the defendant did not establish actual prejudice judges declined to infer prejudice and grant staysfor institutional delays ranging from 14½ to 16½ months (R. v. Hummerstein (BCPC) Surrey Registry, information #173844-01,September 21, 2010; R. v. Chekaluk (BCPC) Surrey Registry, information # 176722-1, January 6, 2011; R. v. Ircha (BCPC) SurreyRegistry, information #170936-01, April 14, 2010; R. v. Oliveira-Reynolds (BCPC) Surrey Registry, information #175455-1, December1, 2010; and R. v. Martin 2000 BCSC 1043). [29] Only in R. v.

Moskal 2010 BCPC 294 , 2010 BCPC 0294 (Surrey) was prejudice inferred and a stay granted althoughactual prejudice was not proven. In this case, there was “a little more than 25 months” institutional delay. Thus, from the recent casescited by counsel it appears that even after R. v.

Godin, judges have declined to infer any significant prejudice and grant stays in theabsence of actual prejudice, except in a case where institutional delay stretched to 25 months. [30] The 18-month length of institutional delay here positions this case closer to those in which prejudice was not inferred and stayswere not granted than to R. v. Moskal, where they were. The particular circumstances of this case, where there is evidence militatingagainst inferred prejudice, also bring it closer to the former group of cases. [31] Most of the cases cited by counsel were impaired driving cases, but Mr.

Stavast’s case is somewhat more serious than “standard”impaired cases because there is also a charge of dangerous driving. As the seriousness of the offence increases so does the societaldemand that the accused be brought to trial (R. v. Morin at p. 13). This additional charge heightens society’s interest in ensuring thatMr. Stavast is tried. [32] Balancing all the relevant factors, I find that the delay in this case has not been proven unreasonable. The length of the delay isserious.

The primary factor causing delay was insufficient resources and I am mindful that a “court cannot simply accede to thegovernment’s allocation of resources and tailor the period of permissible delay accordingly” (R. v. Morin at p. 19). Additional delaywas caused by lapses in the police, Crown and Court’s procedures to bring an accused to court and

schedule trial dates. However,prejudice was neither proven nor inferred. Society has interests both in ensuring Mr. Stavast has a fair trial, and that he is brought to trialon charges of impaired and dangerous driving. [33] The length of the delay and the reasons for it are certainly unfortunate, but the absence of prejudice and societal interests weighagainst a finding that the delay was unreasonable. For these reasons I find that Mr. Stavast has not established a Charter breach and Idismiss his application for a judicial stay of proceedings. __________________________ A.E. Rounthwaite Provincial Court Judge