R. v. Saeed Date:, 2012 BCPC 178

Citation: R. v. Saeed Date: 20120604 2012 BCPC 0178 File No: 178657-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. IMRAN SAEED REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DICKEY Counsel for the Crown: W.W. Norris Counsel for the Accused: M. Richards Places of Hearing: Surrey and Chilliwack , B.C. Date of Hearing: May 14, 2012 Date of Judgment: June 4, 2012 [ 1 ] Mr. Saeed is charged with two counts of assault that allegedly occurred while he was on duty as a police officer. The

defence argues that Mr. Saeed’s right to be tried within a reasonable period of time has been infringed and that the appropriate remedy isa judicial stay of proceedings. [2] The Crown and defence have provided thorough written and oral submissions. The defence calculates the delay at 30 monthswhich they argue has been caused for both institutional reasons and actions of the Crown. The Crown argues that the relevant period ofdelay is 24 and one-half months, and this period requires an inquiry into whether the delay was reasonable.

The Crown then argues that,after the inquiry and after all factors are considered, the delay is just less than one year from the date of the setting of the second trial toits commencement. The Crown argues that there was substantial time required for the inherent time requirements of the case whichshould be deducted from the time since the laying of the charge. They argue that this period is longer than normal due to the publicinterest in such a prosecution; the need for investigation, much of which occurred after the first trial date was set, and their duty toprovide complete disclosure.

Background Facts [3] An incident occurred on May 19, 2009, from which these charges arise. The allegations are that Constable Saeed, while onduty as a member of the Royal Canadian Mounted Police (“RCMP”), attended at a domestic dispute. It appears that a number of otherofficers also attended. The first complainant was a bystander; and the second, the suspect in the domestic dispute. The allegation of thesecond complainant was that he was calling 911 in the back seat of a police car when Cst. Saeed assaulted him in the process of relievinghim of his phone. [4] Charges were sworn on November 17, 2009. Mr.

Saeed’s first appearance was December 8, 2009. There were a number ofappearances that followed in preparation for setting trial dates including a change of counsel due to the appointment of Mr. Saeed’s firstcounsel. On April 23, 2010, the arraignment hearing occurred and trial dates were set starting on June 21, 2011. I have been provided atranscript of the arraignment hearing and Crown makes only passing reference to further ongoing disclosure which they say “they areon”.

There is no indication that the Crown is not prepared to set the trial date or that they don’t expect to be ready for trial for whatwould be 14 months hence. The trial confirmation hearing was set for May 17, 2011. [5] On May 30, 2011, the defence applied for an adjournment of the trial due to late and ongoing disclosure of the Crown. I havebeen provided the transcript from this appearance. There was a significant amount of disclosure outstanding including, according to thetranscript, a further 15 statements and three supplementary reports.

The Crown advised that, under the circumstances, they were notopposed to the application. The Crown agreed that in the circumstances it would be very difficult for counsel to be prepared for trial dueto the late disclosure. The application was allowed and a new trial date was set for four days commencing in April 2012, although it isnot clear on what day. A couple of weeks later, defence counsel applied to reset the trial due to an oversight and this was allowed. Thetrial was then set to commence on May 14, 2012. This application was heard on the first day of trial.

Due to the health of defencecounsel, the defence also applied to adjourn the trial proper on May 14, and this application was granted. [6] The Crown advises that the late disclosure occurred just prior to the first trial date, as further investigation was required for afull and accurate investigation of this file, and to determine whether they continued to meet their charge approval standard. As a result,the Crown was not prepared to proceed to trial on the first trial date. Law [7] The leading case on delay is R. v. Morin, (SCC), [1992] S.C.J. No. 25, (S.C.C.) [Morin].

Sopinka J. for themajority in Morin sets out that, to determine whether a delay has been unreasonable, a court must not apply a mathematical formula, butan approach that weighs the following four factors: 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including: (

a) inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits on institutional resources; (

e) other reasons for delay; and 4. Prejudice to the accused. [8] Although not specifically referred to as one of the factors to be weighed in this approach Sopinka J. stated in Morin (at para.30) that there is a societal interest in having matters dealt with by the courts on the merits of the case. This interest increases as theoffence increases in seriousness. This consideration has often been referred to by the courts as they weigh the different factors in theanalysis of whether the delay is unreasonable, including in the recent decision of R. v. Godin, 2009 SCC 26 [Godin].

It is my intention toinclude this as a factor in my analysis. [9] In the weighing of these four factors, Sopinka J. says that the following legal principles also need to be considered andapplied: 1. The primary purpose of s. 11(

b) is the protection of an individual’s rights; those rights being the right to security of the person,

liberty and a fair trial (paras. 26-27). 2. The security of a person is protected by minimizing anxiety, concern, and stigma of being exposed to criminal charges (para. 28).The right to liberty is protected by seeking to minimize exposure to restrictions on a person’s freedom from pre-trial conditions (para.28). The right to a fair trial is protected by ensuring that trials occur while evidence is available and fresh (para. 28). 3. The government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay (para. 48). 4.

The court suggested a guideline of 8 to 10 months should be used to assess institutional delay in Provincial Courts, but that “…deviations of several months in either direction can be justified by the presence or absence of prejudice” (para. 76). 5. Prejudice can be inferred; the longer the delay, the more likely this will occur (para. 61). Prejudice can also be proven. 6. The degree of prejudice or absence thereof is “an important factor in determining the length of institutional delay that will betolerated” (para. 64). 7.

All cases have certain inherent time requirements and the more complex the case, the longer the time and the amount of delaythat is reasonable (paras. 41-42). Part of the inherent time requirements is what has been referred to as “intake requirements”. [10] The Crown argues that the appropriate method by which one analyzes whether a breach has occurred for delay is to followthe two-step approach put forward by McLachlin J., in Morin.

The first step of this approach is to determine whether a prima facie casefor unreasonable delay has been satisfied; if it has, then to determine whether the right of the accused to be tried within a reasonable timeoutweighs the societal interest to have a matter tried on its merits. This approach has been recently followed in R. v. Haglof, 2012 BCSC449. [11] This two-step approach was not used by the majority in Morin. The decision of Sopinka J. weighed the four factors andconsidered the principles referred to above. The approach of Sopinka J. was more recently followed by Cromwell J. in Godin, (seepara.18).

The approach of Sopinka J. has also been recently endorsed, and the two-step approach rejected by our Court of Appeal in R. v.Thomson, 2006 BCCA 392 [Thomson] at para. 119; and in R. v. Fawaz, 2011 BCCA 315 [Fawaz]. The Court, in Thomson, later adoptedin Fawaz stated: 119 The test is not one of balancing the societal interest against the individual prejudice to the defendant: see R. v. Kporwodu [(2005), (ON CA), 753 O.R. (3d) 190, 195 C.C.C. (3d) 501)].

The four factors relevant to delay … along with the prejudiceto the individual’s security, liberty and fair trial interests, and the societal interests are to be weighed together to determine whether inany given case a period of delay is unreasonable. [12] I find that the approach of Sopinka J. is binding upon me. The Factors to be Weighed [13] The following are the factors for consideration. 1. The Length of the Delay [14] It is settled law that the time that may be considered for the length of the delay commences with the swearing of theInformation.

The length of time from the date the Information was sworn (November 17, 2009) to the delay application (May 14, 2012)is almost two years and six months. The defence and Crown acknowledge that time was required for what is described as the “intakeperiod” to allow both sides to put themselves into a position where they could set trial dates. This included a period of time for Mr. Saeedto find new counsel. The length of the intake period is influenced by the local practices and conditions of the particular region and thecategory of the offence (Morin, para. 42).

The defence and Crown accept that the intake period in these circumstances is between thedate of the swearing of the Information (November 17, 2009) and the setting of the first trial date (April 23, 2010). They argue that thetime should start running for the calculation of the delay from the setting of the first trial date. I agree with this approach. 2. Waiver of Time Periods [15] The Crown argues that the accused has implicitly waived delay with respect to the setting of trial dates because he failed toexpress to the court, the Judicial Case Manager, or Crown that he wanted earlier dates set.

Sopinka J. in Morin (at para. 38) states thatsuch a waiver: 38 ... must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect thatwaiver will have on those rights. … If the waiver is said to be implicit, the conduct of the accused must comply with the stringent testfor waiver set out above. [16] I find nothing within the affidavit material or the transcripts suggesting that Mr. Saeed explicitly or implicitly waived thedelay when trial dates were set.

The only evidence, of which I place little weight as it was only communicated by e-mail to his counsel, isthat he wanted earlier trial dates. Although it may have little weight, it is at least some evidence that the accused was not waiving hisright to be tried within a reasonable time. For the reasons set out, I do not find, therefore, that there was a waiver of delay. 3. The Reasons for the Delay (

a) Inherent Time Requirement [17] The defence argues that this was a simple case of assault and not a complex matter and, therefore, there was no inherent timerequirement that delayed the trial.

[ 18 ] The Crown argues that as a result of the inherent time requirements in this matter, the time should not start running until the Crown was prepared to proceed to trial (see Morin , para. 73 ). They argue that they were not prepared to proceed to trial until the setting of the second trial date, despite that a first trial date was set one year before. The Crown’s lack of preparedness at the time of the first trial date was due to a review of their file from which a decision was made that further investigation was necessary to ensure that they continued to satisfy their charge approval standard.

The further investigation resulted in the corresponding need for further disclosure to defence with the resulting delay of the first trial dates. The Crown argues, therefore, that despite the fact that they were prepared to set a trial date on April 23, 2010, that they were not in fact prepared to proceed to trial until over one year later.

The Crown argues, therefore, that the institutional delay should not start running until May 30, 2011, when although full disclosure had not occurred, they felt that they would be prepared by the second trial date. [ 19 ] I find that the inherent time requirement for this matter includes that period from the setting of the first trial date (April 23, 2010) to the setting of the second trial date (May 30, 2011). The Crown was prepared to set the first trial date on April 23, 2010. This was not a complex matter.

There was no evidence before me, including the transcript of the arraignment hearing that suggests the Crown believed at the time of the setting of the first trial date that they were not prepared to proceed to trial. [ 20 ] I also take into consideration that there was almost six months of pre-charge delay. This lengthy period influences my decision of whether the Crown was, or at least should have been, prepared to proceed to trial at the time of the setting of the first trial date. I note by the time of the setting of this date that just over 11 months had lapsed from the time of the alleged offence.

The pre- charge delay of course is not counted as part of the delay ( Morin , para. 35 ). (

b) Actions of the Accused and the Crown [ 21 ] The actions of the accused must be considered in determining whether he has contributed to the delay. The accused, of course, applied for the adjournment of the first trial date, but this was not due to any blameworthy conduct of the accused. The reason for the adjournment, which was not opposed, was to allow the Crown to complete its disclosure of a substantial amount of material.

The accused did not contribute to any of the delay in this matter. [ 22 ] The action of the Crown in re-investigating this charge shortly before the first trial date placed the defence in a position where they were required to make application to adjourn the trial. I do not find the Crown to be blameworthy in making the decision to re- investigate other than in the timing. As this matter involved a police officer working in the Surrey jurisdiction, the matter was assigned to Crown counsel in the Abbotsford jurisdiction.

I am advised that the transfer of the file did not occur until February 2011, with a determination by March that further disclosure was necessary. The Crown decided that further information was required from six civilian witnesses and 10 police officers. The disclosure from this process was not completed until August 30, 2011. [ 23 ] The Crown has a duty not only to disclose, but to do so in a timely manner. By investigating the file shortly before the trial, they placed themselves in a position where they were unable to satisfy that duty.

If further investigation of the file was necessary, that should have occurred in a timely fashion thus allowing the Crown to satisfy their disclosure obligations prior to the first trial date. I have no evidence that the Crown decided that they required further investigation due to factors that would have been unknown to the Crown when the first trial date was set. (

c) Limits on Institutional Resources [ 24 ] I was referred by both defence and Crown to many cases from the Surrey Provincial Court that set out the limits on institutional resources in this jurisdiction. This does not justify a period of delay that is otherwise unreasonable (see R. v. Ayers , 2010 BCPC 86 at para. 20 ). The government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay ( Morin , para. 48 ).

The report “ Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources ” sets out the shortfall in the justice system that has existed over an extended period of time in the Province of British Columbia and the Surrey Provincial Court. [ 25 ] The limits on the institutional resources in the Surrey Provincial Court resulted in it taking 14 months from the fixing of dates to the proposed start of the first trial. Again, due to the same limits it took 11 and one-half months from the adjournment application to the second trial date.

I would have concluded, if asked to consider either the time period to the first or second trial date alone, that the delays although lengthy were still reasonable in the other circumstances of this case. (

d) Prejudice to the Accused [ 26 ] Prejudice to the accused is a significant factor in determining whether the institutional delay is unreasonable or will be tolerated ( Morin , para. 64 ). The effect of finding prejudice is that the normal guideline of eight to 10 months of institutional delay that will be tolerated in the Provincial Court can vary by several months in either direction “by the presence or absence of prejudice.” (para. 76). Whether the accused has suffered prejudice is a question of fact ( R. v. Kwok , 2002 BCCA 177 , at paras. 17-19 ). [ 27 ] Cromwell J. in Godin stated that prejudice is concerned with the three interests of the accused that s. 11(

b) attempts to protect. Those three interests were described by Cromwell J. as follows: 30 … liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise raise a defence. [ 28 ] The Crown concedes that Mr.

Saeed has suffered prejudice to his right to security from the suffering of stress, marital strain, loss of overtime opportunities, and the inability to apply for courses or job postings within his employment as a police officer. [ 29 ] The defence argues that Mr. Saeed has suffered actual prejudice both with respect to his right to security and also his right to a fair trial by the delay of this matter. The defence argues actual prejudice has occurred in that he has been placed on administrative duties since July 30, 2009.

He advises that the restricted duties have resulted in a $20,000.00 financial loss from loss of overtime shifts from

June 2011. He also has not been able to advance his policing career as he is unable to take additional training. He has been restricted from transfers nationally, provincially and within his office. He states that his relationship with his wife, colleagues, and friends has been negatively impacted by the charges remaining outstanding. He states that he has been stigmatized as a violent person and made the focus of media attention. He has sought counselling from Dr.

Georgia Nemetz for anxiety, weight fluctuations and bouts of depression during the past two and one-half years, and the delay has exacerbated these issues. He is facing civil and disciplinary action arising from these allegations which remain on hold until the criminal matter is concluded. [ 30 ] The defence also argues that Mr. Saeed’s right to a fair trial has been affected by the delay. Mr. Saeed states in his affidavit that his memory is no longer as clear as it once was due to the passage of time and that he is concerned the witnesses may be in a similar position.

I agree with Crown that police officers are trained to make notes of matters to assist them in their recollection of events when they proceed to trial. I would expect that even though Mr. Saeed may not have made notes immediately after the events of May 19, 2009, I certainly would have expected that he would have, by July 30, 2009, when he would have been aware of the allegations. I do accept that as stated by Armstrong J. in R. v.

Lombardi , 2009 ONCJ 513 , “delayed trials result in at least a risk of fair trial prejudice” because of the quality of recollection and the deterioration of evidence (see also Godin , paras. 35, 37, and 40 ). I find, therefore, that there is inferred prejudice with respect to the right to Mr. Saeed’s full answer and defence, although I do not place great weight on this inference. (

e) Societal Interest [ 31 ] The Crown argues that the prejudice to the accused from the delay does not outweigh the societal interest in having this matter tried on its merits. I first note that this is following the two-step approach referred to above, which I have not followed. Societal interest is only one of the factors to be weighed in determining whether the delay is unreasonable. [ 32 ] There is a societal interest in having matters dealt with by the courts on the merits of the case and this interest increases as an offence increases in seriousness ( Morin , para. 30 ).

At the same time, however, as Blouin J. stated in R. v. Gottardo 2009 ONCJ 454 , at para. 4 , and followed in R. v.

Pearson 2009 BCSC 1860 (para. 41 ), “While society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that trials for such offences are held in a timely fashion.” I find that this is a serious matter because of the interest that society has in the on-duty actions of its police officers. [ 33 ] Society also has an interest in ensuring that Charter rights are not empty words but are enforced because of the value they provide to all citizens.

As McLachlin J. (as she then was) stated in Morin (at para. 86 ), and Cromwell J. repeated in Godin : 86 When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

Weighing the Factors [ 34 ] The delay in this case of two years and three weeks is past the strict guidelines set out in the decision of Morin , but I do find it within the time frame in which a period can either be reasonable or unreasonable depending on the circumstances of the case. I must weigh, therefore, the factors of the delay. [ 35 ] Following the approach of the majority in Morin , I must weigh the length of the delay, the reasons for delay and the prejudice to the accused.

I will also weigh the societal interest to have this matter heard on its merits. [ 36 ] In assessing the reasons for the delay, the inherent time requirements for this matter were not significant. This matter was a straightforward assault charge except that it involved a police officer as the accused. This, however, was known to the police soon after the incident date and certainly months prior to the laying of the charge. The Crown, of course, would have known this by no later than the swearing of the charge.

I know of no valid reason why the investigation in this matter should have been delayed. [ 37 ] In assessing the actions of the accused and the Crown, I find that the actions of the accused did not delay the hearing of this matter. The decision of the Crown to investigate this matter further was not in itself blameworthy. The Crown’s failure to perform this task in a timely manner, however, did cause the first trial to be adjourned with the resulting delay. This was over two years from the date of the alleged offence.

I must keep in mind that what has been referred to as second level decisions by the Crown, decisions that can be attributed directly to them including decisions on when to make disclosure, will be “weighted more heavily in favour of the accused in the balancing phase of the Morin analysis” ( R. v. Ghavami , 2010 BCCA 126 , at para. 55 ). [ 38 ] I do not find the institutional delay to be a significant consideration.

The institutional delay, or the time it took for the courts to provide time for trial once the parties were prepared to set trial dates, resulted initially in 14 months of delay and then a further 11 and one-half months following the adjournment application. As I noted before, either of these periods alone would not, in the circumstances of this case, have resulted in my finding unreasonable delay. [ 39 ] The next factor to be weighed is the prejudice to the accused.

As noted above and set out within Morin , the degree of prejudice or absence thereof is “an important factor in determining the length of institutional delay that will be tolerated” (para. 64). In this case, I find that the prejudice to the accused caused by the delay is significant. Mr. Saeed has had his employment significantly affected by restrictions that have continued in place due to the delay. He estimates that he has lost $20,000.00 in overtime since June 2011. His relationship with his wife, colleagues, and friends has been negatively impacted.

He has been stigmatized as a violent person and made the focus of media attention. He has taken counselling for anxiety, weight fluctuations and depression. He is facing civil and disciplinary action, which remain on hold until the conclusion of this matter. [ 40 ] I also find that the accused has suffered inferred prejudice with respect to his right to make full answer and defence, although I do not place great weight on this factor. [ 41 ] Finally, I must consider that this matter has a heightened societal interest in having this matter heard on its merits.

This also provides a corresponding obligation on the Crown to act to ensure that this matter is not delayed by their failure to comply with their

obligation to provide timely disclosure. Conclusion [ 42 ] The factors most significantly weighing in favour of a finding of unreasonable delay include the length of the delay, the reasons for the delay and specifically the failure to provide timely disclosure, and the prejudice to the accused. The factor weighing most heavily in favour of the delay being found reasonable, is the societal interest in having this matter proceed to trial. The length of the delay is significantly beyond the guidelines set out in Morin . Mr.

Saeed has suffered actual prejudice as a result of this delay. [ 43 ] In weighing all the factors referred to above, I conclude that the factors in favour of a finding of unreasonable delay outweigh those that the delay was reasonable. I find, therefore, that there has been an unreasonable delay in breach of Mr. Saeed’s s. 11(

b) Charter right to be tried within a reasonable time. [ 44 ] Application is granted. There will be a judicial stay of proceedings. __________________________ R.C. Dickey Provincial Court Judge