R. v. Horner Date:, 2011 BCPC 211

Citation: R. v. Horner Date: 20110627 2011 BCPC 0211 File No: 179389-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LIAM RUSSELL HORNER RULING OF THE HONOURABLE JUDGE R. RAVEN Counsel for the Crown: C. Proctor Counsel for the Defendant: M. Fortino Place of Hearing: Surrey , B.C. Date of Hearing: May 27, 2011 Date of Judgment: June 27, 2011 [ 1 ] THE COURT : This matter is for a decision in the R. v. Liam Horner matter. On Surrey court file number 179389, Mr.

Horner is charged with one count of impaired driving and one count of operating a motor vehicle with a blood alcohol content that exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. It is alleged that these offences occurred on October 31, 2009, in Langley, British Columbia. [ 2 ] On May 27, 2011, the first trial date set in this matter, Mr. Horner requested a judicial stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms , arguing his s. 11(

b) Charter right to be tried within a reasonable time had been violated. Counsel for Mr. Horner informed the court he intended to apply for a judicial stay on April 12, 2011, the date set for a trial confirmation hearing in this case. He was informed there was no time to hear the application for a judicial stay before the trial date, therefore that application was adjourned to May 27, 2011. [ 3 ] The chronology of events to consider in this case is set out below: Offence date October 31, 2009 Information sworn January 4, 2010

First appearance January 12, 2010 Arraignment hearing February 23, 2010 Trial confirmation hearing April 12, 2011 First trial date May 27, 2011 [ 4 ] It is conceded that the delay to trial in this case from the date of the arraignment hearing to the date of the first trial is just over 15 months. It is also conceded that the only reason for this delay is limits on institutional resources. The case proceeded quickly from the time the Information was sworn on January 4, 2010, to the time the trial date was fixed at the arraignment hearing on February 23, 2010. Mr.

Fortino had trial dates available as early as March 2010. However, the first available date for trial available to the court was May 27, 2011. As indicated in the recent decision I handed down in R. v. Sinelnik 2011 Surrey Registry number 179215-1, a 15-month institutional delay to trial in many impaired driving cases has become routine in the Surrey Registry of the Provincial Court. It is apparent from the number of applications heard requesting a judicial stay in these types of cases, that for many accused delay has become the defence of choice in impaired driving cases in Surrey. [ 5 ] In this case, Mr.

Horner testified he suffered actual prejudice from the institutional delay. In addition, his counsel submitted the court should infer prejudice from the delay and enter a judicial stay of proceedings. The Crown argued actual prejudice had not been proven and that an institutional delay of 15 months to trial is not significant enough in the unique circumstances of Surrey to warrant granting the extraordinary remedy of a judicial stay.

In the Sinelnik decision, I outlined the law with respect to determining when delay in a case is unreasonable as follows, and I'm just quoting from that decision: The leading authority on how a trial court determines when delay becomes unreasonable is R. v. Morin , [1992] S.C.R. 771. This case states the trial court should not apply a mathematical formula; it should make a judicial determination on whether s. 11(

b) Charter rights have been infringed by "balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay." The primary purpose of s. 11(

b) of the Charter is to protect the individual rights of an accused to security of the person, to liberty and to a fair trial. The right of the accused to security of the person seeks to "minimize the anxiety, concern and stigma of exposure to criminal proceedings" ( R. v. Morin , para. 28). The right to liberty is affected if an accused is the subject of restrictive bail conditions or pretrial incarceration. The right to a fair trial ensures that proceedings occur while the evidence is fresh and still available.

Society also has an interest in ensuring accused persons are dealt with humanely, fairly and in accordance with the law. The Morin decision concluded that eight to ten months of institutional delay was acceptable in Provincial Court cases.

Once that threshold of delay is exceeded, the court must consider the following factors in determining whether the delay is unreasonable: 1) the length of the delay; 2) waiver of time periods; 3) the reasons for the delay, including inherent time requirements of the case, actions of the accused, actions of the Crown, limits of institutional resources and other reasons for the delay; 4) prejudice to the accused. [ 6 ] As in the Sinelnik case which I have just quoted from, Crown and defence before me agree the delay in this case is outside of the range set out in the Morin decision.

The delay was not waived by the accused and there is no reason for the delay, other than limits of institutional resources. Therefore, the issue to be decided is whether the accused has proven prejudice to the extent that a judicial stay of proceedings should be granted. [ 7 ] Addressing firstly the issue of inferring delay. In the Sinelnik decision, I reviewed several cases decided in the Surrey Registry of the Provincial Court starting in 2010 that addressed the delay problem in this region. In R. v.

Ircha 170936-01 Surrey Registry, former Administrative Judge MacDonald found 16 months of institutional delay is on the borderline of what is unreasonable, taking into consideration the limits placed on institutional resources in this region. Ultimately, he decided it was not enough of a delay to warrant an inference of prejudice and the extraordinary remedy of a judicial stay. Judge MacDonald cited the following passage from R. v. Godin 2009 SCC 26 on the issue of prejudice to the accused arising from delay: Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: 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 to raise a defence. [ 8 ] In R. v.

Ayers 2010 BCPC 86 , a delay of 18-and-one-half months caused Judge Gordon to infer prejudice, and she also determined the accused proved actual prejudice due to memory loss, loss of a potential defence witness, continued anxiety and the accused's inability to advance his career in property development, resulting in an estimated $50,000 financial loss. In R. v.

Hummerston 173844-01, another decision of the Provincial Court in the Surrey registry, Judge Ball, in deciding a case of mischief, determined that a 20-month delay to trial was not so unreasonable as to warrant a judicial stay of proceedings in the absence of actual prejudice to the accused. Administrative Judge Gulbransen rendered two decisions on applications for a stay of proceedings on November 22, 2010. Both R. v. Moskal 2010 BCPC November 22, 2010 and R. v. Matson 2010 BCPC 295 November 22, 2010 , involved accused persons facing charges of impaired driving.

The delay to a first trial date in each case was 13 months, attributable exclusively to limits on institutional resources. Both cases had to be adjourned on the first date of trial due to a lack of court time to hear the cases. The Moskal trial was rescheduled according to the usual practice in the court, resulting in a second trial date 12 months later.

The total period of institutional delay was then determined to be 25 months. [ 9 ] Counsel in the Matson case demanded an earlier hearing time than the ten-and-one-half-month adjournment offered by the court and was successful in rescheduling the trial five months later, resulting in a total delay of 18 months. In Moskal and Manson, Judge Gulbransen pointed out that reductions in the number of judge days, court staff and sheriffs over a number of years have created a significant backlog of cases and court-overbooking in Surrey, resulting in increased delays to trial.

In Moskal, Judge Gulbransen stated: . . . 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. Citing the case of R. v. Walker , [1998] B.C.J. 409 , a case that inferred prejudice to an accused who waited 20 months for an impaired trial, Judge Gulbransen inferred prejudice to Mr. Moskal from the 25-month delay to trial and granted a judicial stay of proceedings on that basis.

In the Matson decision, Judge Gulbransen found a delay of 18 months insufficient to warrant a judicial stay of proceedings, but granted a stay on the basis of actual prejudice to the accused as proven on the facts of that case. [ 10 ] In the case of R. v.

Oliveira-Reynolds 175455-1 Surrey Registry, December 1, 2010, a case involving a charge of failing to provide a breath sample, Judge MacDonald determined an institutional delay of 15 months was not an unusually long delay in Surrey; therefore, he refused to infer prejudice to the accused based on institutional delay alone. [ 11 ] In addition to these cases, I have reviewed the following recent decisions addressing the issue of institutional delay in impaired driving cases coming before the Surrey Provincial Court: R. v. Ark 2010 BCPC 63 ; R. v.

Chekaluk 176722-2 Surrey Registry January 6, 2011; R. v Bowes 2011 Surrey Registry 174275-1; and R. v. Vinet Surrey Registry 174769 February 3, 2011. [ 12 ] From all of these decisions, I find it is routine for impaired driving trials set in Surrey to have an institutional delay of 13 to 15 months to the first trial date. It is also common for multiple impaired driving trials to be set in the same courtroom on the same day in the anticipation that some will not proceed to trial.

While this is generally so, the practice of heavily overbooking impaired driving trials often leads to the result in Moskal and Matson , that is, the need to adjourn trials due to lack of court time, adding further institutional delay to the trials that are adjourned. [ 13 ] On May 27, 2011, Mr. Horner's one-day trial was scheduled in a courtroom where I was required to complete two other trials that I was seized of, and bail hearings for persons in custody were also set before me. No other courtrooms were available to hear Mr. Horner's trial.

The application for a stay of proceedings was heard while the continuations waited. There was no possibility of the Horner trial being heard on May 27, 2011.

An adjournment of the trial set in the usual course would result in a further delay of approximately ten months, as occurred in the Moskal trial. [ 14 ] While it might be possible to demand an earlier date within five to six months, I am reluctant to make that order as I am aware that in this registry urgent family trials involving child protection issues wait longer than that period of time for a hearing, and it is not just or reasonable for parents and children to wait longer for a trial to determine if they will be reunited than an accused waits for a resolution of impaired driving charges.

In saying this, I do not mean to trivialize impaired driving charges, because the damage caused by impaired drivers on our streets is serious and well-documented. However, judges in Surrey are placed in the unenviable position of deciding on a daily basis which of the serious and urgent matters before us will proceed and which will have to be adjourned. As indicated in the Moskal decision, adjournments of impaired driving trials are routinely set ten months later. It is reasonable for me to assume that Mr.

Horner's trial will likewise be set ten months into the future, with the result that he will wait over 25 months for trial. [ 15 ] Mr. Horner is 22 years old, with no criminal record. He is a high school graduate who has worked full-time for four years with Valley Direct Furniture as a delivery driver. He testified that in approximately November of 2010, he was in line to be promoted to the position of mobile sales representative, for which he required a valid driver's licence. His boss, who is aware of the outstanding charges Mr.

Horner faces, told him the position was going to someone else because of the uncertainty of Mr. Horner's ability to drive. This was a disappointment for Mr. Horner. However, he admitted on cross-examination that he anticipates other promotions will come available and he expects to be promoted in the future. [ 16 ] On the evidence as a whole, I am unable to find that Mr. Horner has to date suffered actual prejudice, including stress and anxiety from having these charges outstanding, to the extent that the extraordinary remedy of a judicial stay of proceedings should be granted.

If, on May 27, 2011, court time was available to hear Mr. Horner's trial, I would have ordered the matter to proceed. The delay of 15 months to trial, although unfortunate, is routine in Surrey and no decisions put before me supported granting a stay of proceedings on the basis of a 15-month delay to trial without the added finding of actual prejudice to the accused. [ 17 ] However, the concern I have in Mr. Horner's case is there was no possibility of his case being heard on May 27, 2011, and it will likely be set ten months from now, causing an institutional delay of over 25 months.

Several cases reviewed suggest courts will infer prejudice from a delay of 20 months or more. I am confident that Mr. Horner's case will be rescheduled well beyond 20 months from the arraignment date of February 23, 2010. [ 18 ] As indicated in the Walker and Moskal decisions, this is unreasonable institutional delay. I infer prejudice to the accused Mr.

Horner on the basis of the length of time he will have to wait to have his trial heard. [ 19 ] Although a judicial stay is an extraordinary remedy, I find it is the only appropriate remedy in the circumstances of the case before me; therefore, I enter a judicial stay of proceedings. (RULING CONCLUDED)