R. v. MINHAS Date:, 2011 BCPC 115

Citation: R. v. MINHAS Date: 20110329 2011 BCPC 0115 File No: 177574-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUKHPAL MINHAS RULING ON VOIR DIRE OF THE HONOURABLE JUDGE S. K. MacGREGOR Counsel for the Crown: R. Levenson Counsel for the Defendant: B. Jackson Place of Hearing: Surrey , B.C. Date of Hearing: March 10, 2011 Date of Judgment: March 29, 2011 [ 1 ] THE COURT : These are my reasons on the voir dire on the delay argument. This matter was heard before me on March 10, 2011, and reasons were reserved until today. [ 2 ] Mr. Minhas is charged with impaired driving and driving over 08, contrary to s. 253(1) (

a) and 1 (

b) of the Criminal Code respectively. He has applied under s. 24(1) of the Charter for a judicial stay of proceedings on the grounds that his right to be tried within a reasonable time under s. 11(

b) of the Charter has been violated. [ 3 ] The leading case is R. v. Morin (1992), 1992 CanLII 89 (SCC) , 1 SCR 771 , where the Supreme Court of Canada at paragraph 31 sets out the factors that the court should consider, and whether or not the delay is unreasonable. I will apply these factors to the circumstances of this case following the Morin outline. LENGTH OF DELAY [ 4 ] The alleged offence occurred August 16, 2009. The Information was sworn October 1, 2009.

The first appearance was on October 15, 2009, and there were several appearances, I take it, for counsel to be appointed and also discussions with the Crown. The arraignment hearing took place on January 6, 2010, and the trial date was set. The trial confirmation took place January 12, 2011, and the trial date was scheduled for one day for March 10, 2011. Unfortunately, a good portion of that day of March the 10, 2011, was taken

up with the delay argument and with other matters. [ 5 ] That delay results in 19 months from the alleged offence date and now some 17 months and three weeks and a few days from the swearing of the Information, so we are approaching now 18 months from the swearing of the Information. We are now 14 months and 23 days from the setting of the trial date. The relevant time I must consider is from the date the Information is sworn, which is now almost 18 months, although certainly other authorities look at the actual period since the arraignment hearing and the trial date being set.

The Crown concedes that this length of delay does merit some scrutiny of the courts. REASONS FOR THE DELAY [ 6 ] Waiver of time periods: Counsel agree that there has been no waiver of time periods by Mr. Minhas. To the contrary, when this trial was fixed, Mr. Jackson sought an earlier date and was able to make himself available for an earlier trial date, so there is no delay attributable to the accused. [ 7 ] Inherent time periods: The case is relatively straightforward and the time estimated for the trial itself, one full day, is an appropriate time period.

There are no actions of the Crown attributable to any delay. [ 8 ] Limits on institutional resources: The Morin decision provided an institutional guideline of eight to ten months in respect for institutional delay. While that period is not absolute, and certainly does not fix any date or rule, the application of this mean guideline would have required this trial to commence sometime, if we take the approximately nine months or ten months, in September of 2010.

We are now over seven months beyond that date and the trial itself has not yet begun. [ 9 ] There are a number of cases which address the inherent delays in the Provincial Court of British Columbia over the last several years, and particularly dealing with the South Fraser District. I refer to the comments of my brother Judge Gulbransen in R. v. Moskal , a decision of November 22, 2010, at paragraphs 20 to 24. I am not going to quote all of these paragraphs but I will make reference to paragraph 24: There are not enough judges, court staff or sheriffs in Surrey.

The shortages are not the result of drastic cuts but the result of attrition from gradual budget reductions. The delay has built up gradually and has had little effect so far. Now, however, the backlog is so great and the courts are so overcrowded, that there will be unreasonable delay should there be even one adjournment of a trial date. The Provincial Court cannot expect to be immune from necessary budget cuts or spending restrictions in the face of an economic crisis.

But, the Supreme Court of Canada has made it clear that the time will come when the courts can no longer accommodate an explanation for lengthy institutional delay that there is just no money for the court system. In Surrey, that time has come. [ 10 ] In this case, I deem the time from the arraignment hearing until March the 10th to be over seven months beyond the Morin guideline, and that that delay is unreasonable. PREJUDICE TO THE ACCUSED [ 11 ] Having found the delay to be unreasonable, I must consider whether or not Mr.

Minhas has suffered prejudice that is real and significant to invoke the courts power to direct a judicial stay. Mr. Minhas' affidavit states that he has suffered from economic loss as well as worsening stress, and has now indicated that he has been diagnosed with health problems. [ 12 ] He was employed as a long-haul trucker and regularly drove to Alberta, Washington and Oregon at the date of this charge. He was refused entry into the United States as a result of the charge, and was fired by his then employer.

He found work with another employer but he was fired by that second employer, again as a result of these charges. [ 13 ] He remained unemployed for eight months. He is a married man and has two children. His wife works two days a week for a dry cleaning business; therefore, he would be the primary breadwinner for his family. In June of 2010, Mr. Minhas did find further employment with Hunter Transport and he has been driving since then in British Columbia and Alberta.

However, approximately eight months ago his doctor diagnosed him with high cholesterol, high blood pressure and diabetes for which he is now taking medication. He is only 38 years old. [ 14 ] He deposes that he has been under great stress as a result of the charges and he attributes his medical condition to that stress. He has difficulty sleeping, and as time has gone on his stress has gotten worse. Crown did not seek to cross examine Mr. Minhas on his affidavit. Crown counsel suggests that Mr. Minhas' difficulties arise as a result of the charges themselves, and are not attributable to the delay.

While I agree with Crown that his initial job loss was a result of the charges, particularly being barred entry into the United States, his second employer had found this out as well and that job loss is not attributable to any delay. However, I find that the longer matters went on, there was prejudice to the accused. This includes the unemployment period (significant economic loss that would have had an impact on Mr. Minhas' family). Particularly, I cannot ignore his medical diagnosis for which he now takes medication.

I do accept that the stress of waiting for trial must have played some role in his deteriorating health situation. This trial will have to be reset and the outcome will be further delayed. [ 15 ] I find that Mr. Minhas has suffered real and significant prejudice as a result of the delay. In R. v. Godin (2009), 2009 SCC 26 (CanLII) , SCJ No. 26 , the Supreme Court of Canada also indicated that there is an additional degree of prejudice from the delay alone.

CONCLUSION [ 16 ] Based on the circumstances of this case, the authorities and the submissions of counsel, I do find that there has been an unreasonable delay in this case and that Mr. Minhas has suffered real and substantial prejudice. The accused's right to be tried within a reasonable time has been violated; therefore, pursuant to s. 24(1) of the Charter of Rights , I order stay of proceedings on both counts of the Information. (RULING CONCLUDED)