R. v. Young Date:, 2012 BCPC 207

Citation: R. v. Young Date: 20120308 2012 BCPC 0207 File No: 178004-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHRISTOPHER SCOTT YOUNG RULING ON APPLICATION OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown: P. Bachra Counsel for the Defendant: C. Sicotte Place of Hearing: Surrey , B.C. Date of Hearing: February 27, 2012 Date of Judgment: March 8, 2012

[1] THE COURT: Christopher Scott Young is charged on Information 178004-2-C, on Count 1, that on September 12th of 2009he unlawfully produced cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act, and on Count 2, that on thesame date he unlawfully had possession of that substance for the purpose of trafficking, contrary to s. 5(2) of that Act. [2] Mr. Young says his right under s. 11(

b) to be tried within a reasonable time has been breached. He asks this court to enter ajudicial stay of proceedings. Mr. Young has filed an affidavit in support of his application, and he was cross-examined by Crowncounsel. [3] These charges arise from the attendance of police members at the home of Mr. Young on September 12th of 2009 followinga hang-up 9-1-1 call. Relevant to the defence are the circumstances under which police entered Mr. Young's home without a warrant,leading them to make certain observations inside. [4] The original Information was sworn November 23rd, 2009. Mr.

Young made his first appearance on February 5th of 2010pursuant to a Promise to Appear. He received some disclosure on that date and returned to court February 22nd, 2010 at which point hereceived some further disclosure. Mr. Young was in difficult financial circumstances. He was at that point still not represented bycounsel. The current Information on which the Crown proceeds was sworn on March 4th of 2010. [5] Mr. Young next appeared on March 19, 2010. He inadvertently missed a court appearance on May the 4th of 2010 and wasarrested on a warrant and released on May the 7th, 2010. On June 11th of 2010, Mr.

Young had been able to retain legal counsel. Onthat date he elected a trial before a Supreme Court judge sitting alone, a preliminary inquiry was set for August 31st, 2011 on a one-dayestimate, and a trial confirmation date was set to be August 3rd, 2011. [6] Mr. Young elected a Supreme Court trial because at that point I am advised his financial resources were so strained that hecould only afford to retain counsel for that one-day preliminary hearing. Because of Mr. Young's financial circumstances, Mr.

Sicotte,his counsel, sought to focus the preliminary inquiry to the circumstances surrounding the entry to the residence. To fully address thatissue he filed an arraignment report on June 11th of 2010 in which he sought further disclosure by way of dispatch and radiotransmissions respecting police efforts to locate the address and the nature of the 9-1-1 call. He sought a transcript of the 9-1-1 call andaudio of that call. (A copy of the arraignment report is Exhibit A to Mr. Young's affidavit.) [7] On July 14th of 2011, one-and-a-half months approximately before the date for the preliminary inquiry, Mr.

Sicotte wrote toCrown counsel requesting disclosure as set out in the arraignment report. (The letter is Exhibit B to Mr. Young's affidavit.) Heparticularized the request as follows at paragraph 2 of his letter: In particular, please provide me with audio and/or transcripts of police communications prior to entry into my client's residence. Thesewould include the dispatch communication, any radio communication regarding this matter especially related to the address, audio andtranscript of any 9-1-1 calls, et cetera.

Also please provide me with the source and details of the information contained in paragraph 4 ofthe ITO. Please provide me as well with the source and details of the information that Delta Police had that is referred to in paragraph 6of the ITO. I take from this that the disclosure request set out in the June 2010 arraignment report to that point had not been met. [8] On July 16th of 2011, a police member contacted the radio room at the Surrey detachment and learned that the radiorecordings there were no longer available.

This is set out in a police communication provided to Crown counsel on July 17, 2011 and itis Exhibit C in Mr. Young's affidavit. In that report the constable stated he would inquire of the Delta Police as to the availability of theirtapes. Apparently the investigation involved both police forces. [9] On August 3rd, 2011 the preliminary inquiry date was confirmed. [10] On August 30th of 2011, the day before the scheduled preliminary inquiry, Mr. Sicotte received the letter, Exhibit D to Mr.Young's affidavit, enclosing certain items of disclosure. He also received 18 short audio recordings of police transmissions.

They werenot transcribed and were difficult to hear. [11] The preliminary inquiry was set in courtroom 103 at the Surrey courthouse on August 31st, 2011. It was moved into anothercourtroom because there was not enough court time in courtroom 103 to hear it. It is unclear whether the matter could be accommodatedin that new courtroom, but in any event, Mr. Sicotte applied for an adjournment on the basis that in the absence of transcripts of thesepoor-quality audio tapes which had only just reached him, he was not prepared to proceed to cross-examine the police officers.

TheCrown opposed the adjournment, but it was granted. Mr. Sicotte requested one week to discuss further focussing of the preliminaryinquiry. [12] On September 7th of 2011, Mr. Young re-elected to the Provincial Court and set a two-day trial for March 27 and 28 of 2012,and in addition, Mr. Sicotte set the date for this application to be heard before me as the trial judge on the previous date in February ofthis year. [13] The general principles on which applications of this type are to be assessed are set out in the decisions of the Supreme Courtof Canada in cases such as R. v.

Morin, (SCC), [1992] SCJ 25, and R. v. Godin 2009 SCC 26. The right to be triedwithin a reasonable time under s. 11(

b) of the Charter addresses first the individual's interest in security of the person by seeking tominimize the anxiety, concerns and stigma of exposure to a criminal charge; secondly, the individual's liberty interest by seeking tominimize the accused person's exposure to, for example, restrictive bail conditions; and third, the right to a fair trial by attempting toensure that proceedings occur while evidence is available and fresh. There is a further societal interest which parallels the accused'sinterest and which 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 at trial. [ 14 ] In addressing and balancing these interests, the following factors are to be considered by the court: First, the length of the delay involved; 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 fourth consideration 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 only be undertaken where the length of the delay is arguably unreasonable. The Supreme Court of Canada has pointed out that as a guideline, trials in the Provincial Court should occur in the eight-to-ten-month range.

This does not mean that any delay beyond this range will be unreasonable; however, a delay much beyond this range has been sufficient in this jurisdiction to raise an issue as to whether it is reasonable, and an inquiry addressing the relevant interests and factors earlier referred to is then to be undertaken. [ 16 ] In this case, the time periods can be summarized as follows: The period of time from the date of the alleged offence to the swearing of the Information is just under two months.

From the swearing of the Information to June 11, 2010, which is the date on which the preliminary inquiry was set, is about six-and-a-half months. The period of delay to the preliminary inquiry date was about 14- and-a-half months. The two-day trial was set six months and three weeks following the re-election date.

The total period from the laying of the Information on November 13, 2009 to the trial dates is 28 months and about two weeks. [ 17 ] Generally speaking, the period from the date of the offence to the laying of the charge is not to be included in the assessment, although there may be circumstances in which that period may be relevant in assessing post-charge delay.

The overall length of the delay from charging to trial, 28-and-a-half months in this case, is sufficiently beyond the guideline range that an inquiry as to its reasonableness is called for. [ 18 ] The initial period to assess, of course, is the six-and-a-half months from the laying of the charge until June 11, 2010 when the preliminary inquiry date was set. During this time, Mr. Young has said he struggled to find the resources to retain counsel. He has given evidence that he was in arrears on his child support payments and in debt to Revenue Canada. Ultimately, he was able to retain counsel at least to

schedule a one-day preliminary inquiry which was then set. The Crown has not asked me to treat any portion of this time period as waived by Mr. Young because of the delay in retaining counsel, nor has the Crown sought to challenge Mr. Young's evidence as to his financial circumstances or to show that he sought to delay the process by relying on his financial distress. The Crown has not suggested that he should be penalized in the assessment of this time period because he failed to attend court and was arrested on one occasion. This appears to have been inadvertent.

In any event, no time appears to have been lost as a result. [ 19 ] This is a serious criminal charge with the potential for a significant sentence if Mr. Young were to be convicted. Some forbearance in the process of retaining counsel is called for in these circumstances. I conclude that this period should be accepted in its entirety as the inherent time requirements needed to bring this particular case to the point that it is ready to move forward to trial or preliminary inquiry. [ 20 ] The next period to evaluate is the 14-and-a-half months from June 11, 2010 to the preliminary inquiry date of August 31, 2011.

The evidence does not disclose whether, in setting this date, the court offered earlier dates for this one-day preliminary inquiry which counsel could not accommodate. The Crown argues this time period is within the timeframe generally required to obtain a one- day hearing in the Surrey Provincial Court. The defence has not argued that this period was unreasonable in Mr. Young's circumstances. The defence did not lead evidence that it objected to the date when offered, nor did it bring forward an application at any point before or on August 31st, 2010 for a remedy based on unreasonable delay.

It cannot be stated unequivocally that this 14-and-a- half-month period is entirely due to the absence of institutional resources because the evidence does not confirm that. [ 21 ] Further, it is not possible to say that any specific portion of this period was waived by the accused for purposes of an overall assessment of the time to bring the matter to a conclusion.

There is no evidence that the accused's conduct is responsible for the length of this time period. [ 22 ] The defence focuses its argument on the implication of late disclosure by the Crown which precluded the preliminary inquiry proceeding on August 31st, 2011, and led to a re-election and new trial dates in late March of 2012. In assessing the implication of this late disclosure, I must not go behind the decision to grant the adjournment.

I conclude on the evidence before me, including the contents of the transcript of the hearing on that date, that the adjournment was granted because the court concluded the Crown did not provide adequate and timely disclosure of the police communications, including audio tapes and transcripts. I am satisfied that the audio that was provided the day before the hearing would be seriously deficient because it could not be clearly deciphered. Further, it is clear that search for the information sought by the defence on June 11th of 2010 was only initiated in mid July of 2011 as a result of Mr.

Sicotte's follow-up letter, and by then at least some of the material was no longer readily available. That information was meant to address the issue that Mr. Sicotte had focussed the preliminary inquiry on. [ 23 ] Frequently, applications under s. 11(

b) of the Charter arise where a hearing does not proceed and must be adjourned to a new court date due to a lack of court time on the scheduled date. That is not the case here. The evidence does not establish that the preliminary inquiry could not have proceeded because no court time in Surrey was available to hear it that day. There was no time in the courtroom originally assigned; however, the application to adjourn was made and granted based on disclosure concerns. The issue of available court time was never addressed.

Thus, the further period leading to a re-election one week later and the setting of a two-day trial on March 27th and 28th of 2012, a further seven months on, is not to be addressed solely on the basis of the unavailability of institutional resources; it raises as well issues relating to the actions of the Crown. [ 24 ] The sole reason established on the evidence for the failure of the hearing to proceed on August 31st, 2011 is the failure of the Crown to respond in a timely way to the disclosure requests the defence made in the arraignment report filed June 11th of 2010. That failure is unexplained.

Thus, the failure of the preliminary inquiry date rests entirely with the Crown. Further, I conclude the failure of that date, the implication that a Supreme Court trial would be further delayed, and the circumstances of the new disclosure that had been

received entirely justified the defence in reconsidering the original election. Because the Crown is solely responsible for the further seven-month delay now required to bring the matter to conclusion, none of this period should be treated as waived by Mr. Young. This period, which might otherwise contribute to unreasonable delay, cannot be explained away by the Crown as arising from a defence adjournment. [ 25 ] On this assessment of the relevant time periods involved, there is no basis to conclude Mr. Young is responsible for any of the time period by reason of his conduct or through waiver.

Although these charges are serious, there is nothing to suggest the investigation is particularly complex; these prosecutions are relatively common in this courthouse. [ 26 ] I will now address the fourth factor in the analysis which is prejudice. [ 27 ] The Supreme Court of Canada has said that where prejudice is not inferred or otherwise proved, the basis for enforcement of this Charter right is seriously undermined. ( R. v. Morin , supra, para. 61 ) Mr. Young argues that he has suffered prejudice as a result of this delay.

He alleges actual prejudice has occurred, based on evidence led, and he argues that prejudice can be inferred by prolonged delay. The Supreme Court of Canada has pointed out that the longer the period of the delay, the more likely the inference will be drawn. ( R. v. Morin , supra, para. 61 ) [ 28 ] 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, either actual or inferred, is of sufficient significance to amount to a breach of the right when balanced against the societal interest, and if so, whether it justifies the remedy sought, or whether another remedy is available and appropriate. [ 29 ] In his affidavit and evidence given in the courtroom, Mr. Young asserts that the delay has created actual prejudice to the security of his person and his fair-trial interest.

He does not assert prejudice to his liberty interest, and I note here that he was on a Promise to Appear. [ 30 ] In respect to his fair-trial interests, Mr. Young says in paragraph 8 of his affidavit that over the period of now about 30 months since the events occurred, his memory for details is fading. The Supreme Court of Canada in R. v. Morin said this interest "is protected by attempting to ensure that proceedings take place while evidence is available and fresh." Common sense would say that some degree of recall will be lost as time passes, and perhaps more so the longer the time. However, Mr.

Young's bare statement that his memory for detail is fading is difficult to assess at this point. He provides no further information in his affidavit, nor in his direct evidence. He was not asked about it on cross-examination. I do not read the definition of the fair-trial interest in R. v. Morin to say that a fair trial can only occur when the accused has a complete recall of events. If that were so, almost any delay would establish prejudice. Although this assertion may contribute somewhat to an inference of prejudice, it is insufficient on its own to establish actual prejudice to Mr.

Young's fair-trial interest. [ 31 ] The affidavit material establishes that recordings are no longer available at the Surrey detachment. This too on its face might suggest the loss of evidence because of late response to the disclosure request by the police triggering Mr. Young's fair-trial interest, but it is difficult to evaluate whether in fact the evidence is unavailable. It is not clear to me whether the disclosure since provided addresses this potential gap. If indeed a gap exists which prejudices the ability of an accused person to make full answer and defence, a remedy may be available.

A trial judge would be in a better position to assess this. The evidence is insufficient to reach that conclusion on this application. [ 32 ] Mr. Young asserts several heads of prejudice that he says he suffers to his interest in security of the person. That interest seeks to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The Supreme Court of Canada in R. v. Godin referred to the stress and cloud of suspicion which accompanies criminal charges. ( R. v. Godin , supra, para. 30 ) Mr.

Young stated at paragraph 10 that he has been under a great deal of stress throughout the long wait to resolve this matter. He agreed the stress was due to the fact he faced serious criminal charges. He said he is taking some stomach medication for his stress, but there is not a doctor's letter or prescription provided. His stress is further aggravated by concern that he will eventually, if convicted, have to tell his employer that he can no longer be bonded, and that will lead to his dismissal, he fears. His employer has been paying for training for Mr. Young to obtain a Class 1 driver's licence.

If he can no longer be bonded to drive transport trucks, his employer will have lost his investment and Mr. Young fears the implications of this. [ 33 ] Mr. Young's stress in this regard is self-induced because he has chosen not to inform his employer and has undertaken the Class 1 driver training knowing the risk. [ 34 ] Mr. Young has postponed his marriage plans and fears his fiancée will leave him if he is convicted. Mr. Young points out as well that there is family-related stress arising from the fact that he has been charged with this offence.

His fiancée's sister is a police officer and she will not socialize with Mr. Young as a result of these charges. He therefore does not attend his fiancée's family gatherings and will not travel to their recreational property in Washington State. All of this adds stress to his relationship with his fiancée. [ 35 ] These personal and family-related stresses arise from the fact Mr. Young has been charged, not by reason of the delay.

It would be completely normal for an individual facing criminal proceedings to suffer anxiety and stress, and that may show itself in different ways for different people. [ 36 ] I conclude actual prejudice has not been established on the evidence before me. The issue then is whether I should infer prejudice. [ 37 ] Prejudice could be inferred by reason of a delay of over 28 months.

The question is whether the court should do so in this case, and if so, whether the prejudice inferred in the circumstances, when balanced with societal interests, leads to a conclusion that a breach justifying the remedy sought has occurred. It is for the court to assess in each individual case, and in its particular context, whether the inference should be drawn, and if so, its implication for the accused.

[38] In R. v. Bains, which is a decision in the Court of Appeal of this province in 2010, at paragraph 61 the court stated thefollowing: Therefore, even where prejudice may be inferred, a court is not obliged to find that it existed if the inference would be inconsistent withthe other evidence. Moreover, as part of the final balancing of interests, the court must examine the extent to which any prejudice,inferred or actual, has impacted the three interests protected by s. 11(b). (R. v.

Bains 2010 BCCA 178 at para. 61) [39] The circumstances I consider relevant in determining whether prejudice can be inferred in this case are as follows: The lengthof the delay, the assertion that some degree of memory failure may have occurred, although this is not particularized in any way, ortested; the prolonging by seven months of the stresses Mr.

Young has faced in his personal life; the responsibility resting solely with theCrown for the failure of the August 31st, 2011 preliminary inquiry date and the fact that it is unexplained; the fact that a remedy wasgranted to the defence by way of adjournment for this Crown failure, and, I am informed by counsel, has resulted in disclosure nowhaving been provided. [40] I do not place great weight in this assessment on the assertion of fading memory.

In the absence of further evidence, that is anissue which might, in certain circumstances, justify consideration as a trial proceeds but has little substance at this stage. Further, thefailure of disclosure in and of itself has been remedied by an adjournment granted at the time of the preliminary inquiry on August 31st. [41] The issue as to whether there is a basis to infer prejudice in this case comes down to an assessment of the stresses in Mr.Young's life arising initially from the fact of the charges being laid, and now being prolonged to the new trial dates.

I reiterate here, it isnot the absence of institutional resources which informs this analysis. It is for this reason that the recent decision in R. v. To and To,which was provided to me by Mr. Sicotte, does not assist me. (R. v. To and To 2012 BCPC 49 , 2012 BCPC 0049) [42] It is the Crown's failure of disclosure which has been addressed through adjournment which informs the analysis in thisparticular case. Further, it is not to be assumed that had the matter proceeded on August 31st of 2011 to preliminary inquiry that it wouldhave ended with Mr. Young's discharge on that date. That outcome would be speculative.

An election for a Supreme Court trialcontemplates the reasonable possibility that the matter will be prolonged until that trial occurs. Mr. Young was entitled to re-assess hiscircumstances and re-elect to the Provincial Court, but the assessment of his argument that prejudice has ensued must be done in thecontext of the whole process that brings the case to this stage, including the implication of an original election for a Supreme Court trialhad on reasonable time expectations. [43] In these circumstances I conclude that a basis to infer prejudice to one of Mr.

Young's Charter-protected interests has not beendemonstrated. Even if there were a basis to make the inference, that inference would not be so strong in this case as to overcome thesocietal interest in seeing these serious charges resolved in court on their merits. This is not one of those clearest of cases which wouldjustify the application of the extraordinary remedy sought here. The application for a judicial stay of proceedings is denied. (RULING CONCLUDED)