R. v. Lee Date:, 2011 BCPC 178

Citation: R. v. Lee Date: 20110531 2011 BCPC 0178 File No: 180146-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HEIMIN LEE RULING ON APPLICATION OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: C. Proctor Counsel for the Defendant: K. Westell Place of Hearing: Surrey , B.C.

Date of Hearing: May 20, 2011 Date of Judgment: May 31, 2011 [ 1 ] THE COURT : Heimin Lee is charged under the Criminal Code on Information 180146 that he operated a motor vehicle while his ability to do so was impaired by alcohol, that the quantity of alcohol in his blood at the time exceeded 80 milligrams per cent, and a third count, that he operated the motor vehicle in a manner dangerous to the public. [ 2 ] The allegations arose on October 11, 2009. The trial date is June 23rd, 2011. Mr. Lee says that his right to be tried within a reasonable time under s. 11(

b) of the Charter has been violated. He seeks a judicial stay of proceedings pursuant to s. 24(1) of Charter. In support of his application Mr. Lee has filed an affidavit and he relies, as well, on a second affidavit filed on his behalf by Vandana Sood, articling student in the office of his counsel, Glen Orris. [ 3 ] Following his arrest on October 11th, 2009, Mr. Lee was released on a promise to appear in court on March 3rd, 2010. That appearance date is four months and 20 days after the alleged offence. This is an unusually long time period. On January 19 of 2010, Mr.

Orris wrote to the Crown objecting to this lengthy delay for a first appearance and he sought to have Mr. Lee appear at an earlier date. [ 4 ] On January 22nd of 2010 a representative of Crown counsel informed Mr. Orris by letter that the Report to Crown Counsel had not yet been received and he had initiated inquiries with the investigating officer. Crown counsel acknowledged the unusual length of the delay in first appearance by stating in the letter, "I will discuss with Cst. Tiwana the issue of setting appearance notice dates so far from the date of the offence."

[5] On February 17 of 2010 the charge was laid. Once the charge was laid, Mr. Orris contacted the Crown and arranged to have thematter called ahead. Mr. Lee made his first appearance on March 1st of 2010, two days ahead of the appearance notice date. Crownparticulars were not available on March 1st of 2010 and counsel was informed that they might not be available for some time. No reasonfor the difficulty in preparing and delivering particulars is given. The matter was adjourned to March 22nd of 2010. [6] Mr.

Lee's counsel wrote to Crown counsel on March 3rd of 2010 expressing dissatisfaction with the unavailability of Crownparticulars. He asked for particulars to be sent to him before the next appearance so that he could address them with his client in advanceof that date. On March 18th of 2010 Crown counsel advised Mr. Lee's counsel that the particulars were available and they were pickedup on March 22nd at the court appearance. The matter was adjourned to April 16, 2010 so that the particulars could be reviewed andinstructions taken. [7] On April 16 of 2010 a one-day trial was set for June 23rd, 2011.

This was the first day the court had available. It isapproximately 20 months after the date of the allegation, 16 months after the charge was laid, and 14 months from the date-fixingappearance. [8] On May 26 of 2010 Mr. Lee's counsel gave notice to the Crown of his intention to apply for a judicial stay of proceedings basedon delay. October 6, 2010 was set as a date for the court to hear the application. Mr. Lee's counsel was not able to proceed on that dateand the application was adjourned to November 29th of 2010. On November 21st of 2010 Mr.

Lee's counsel wrote Crown counseloffering to adjourn the application to allow the Crown the opportunity to find an earlier trial date and offering available dates inDecember of 2010, January, February and early March of 2011. On November 29 of 2010 counsel appeared before me and wereadjourned to the case manager to determine if an earlier trial was available. Counsel were informed that no earlier date was available.

This application was then re-set for May 20th of 2011 and it went ahead on that date. [9] The parties are agreed that although the charges before the court are serious, the investigation is relatively straightforward. There is nothing to suggest that it was other than substantially complete on the night of October 11, 2009. The Crown anticipates callingtwo police officers and one civilian witness. [10] In his affidavit Mr. Lee addresses the impact the outstanding criminal charges are having on him.

He is in the midst of ongoingdivorce proceedings and is hopeful they will be finalized this summer once financial issues are resolved. He shares custody of his three-year-old daughter and sees her two weekends each month. He has completed the three-month administrative driving prohibition whichfollows charges for these offences, and had to rely during that period on taxis or his sister to drive him. [11] Mr. Lee has not told his wife about these charges because he fears that she will use them against him in addressing divorce andcustody issues and, in particular, that access to his daughter will be restricted.

He is anxious about the outcome as it may affect hisability to see his daughter and his future relationship with her. The uncertainty makes pursuing divorce and custody proceedingsdifficult, he says. He says a criminal conviction would have a great impact on his divorce and custody proceedings. [12] Mr. Lee says that he assists his father, who is now incapacitated, in his business and he visits Korea to conduct business and tovisit relatives. He is concerned that a criminal conviction will affect his ability to travel. Mr.

Lee referred to the distress his family willfeel when they learn of these charges and the effect the charges will have on his reputation in both his immediate and extended family. For these reasons, with the exception of his father, I understand that he has not told his family of these events. This is causing stress forMr. Lee. Mr. Lee refers to the additional legal expenses incurred to bring on this application. [13] The purpose underlying the right to a trial within a reasonable time must be kept in mind when assessing the specificcircumstances before the court on an application like this.

That purpose was set out by the Supreme Court of Canada in R. v. Morin, (SCC), [1992] SCJ 25, and it was nicely summarized by Judge Gulbransen of this court in R. v.

Moskal, 2010 BCPC294 , [2010] BCJ 2308 as follows: Its purpose is: (1) to protect an individual’s right to security of the person by minimizing 'the anxiety, concern and stigma of exposure tocriminal proceedings'; (2) to protect the right to liberty by minimizing 'exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions'; (3) to protect the right to a fair trial by 'attempting to ensure that proceedings take placewhile evidence is available and fresh.' [14] The factors to be considered are: 1. the length of the delay, 2. the waiver of time periods, 3. the reasons for the delay, giving consideration to the following: inherent time requirements of the case; actions of the accused;actions of the Crown; limits on institutional resources and other reasons for delay; 4. prejudice to the accused. [15] On such applications the court is asked to balance the protection of the accused's Charter right to a trial within a reasonable timewith the interest of the larger community in seeing criminal cases resolved on their merits.

In addressing this tension the court is aware

that resources for the criminal justice system are not limitless and that scarce public funds must cover a wide range of interests. [16] On the other hand, as was stated in Morin, there is a point in time beyond which the court will no longer tolerate delay based on aplea of inadequate resources. The Supreme Court of Canada has said that cases which are relatively straightforward and not complexshould be set for trial within a guideline range of eight to ten months from the date the charge is laid.

That guideline was first offered inthe Morin case in 1992 and continues to be referred to today. [17] At the same time, it is understood that whether a particular period of delay is unreasonable is not to be resolved by theapplication of a mathematical formula.

It must be resolved by evaluating the period of the delay at issue against all of the factorsreferred to above, bearing in mind the purpose underlying the protection of this Charter right. [18] Generally speaking, the period from the date of the offence to the date the accused is charged is not relevant; however,circumstances may arise in which pre-charge delay becomes relevant in analyzing whether a particular delay is unreasonable. [19] The consideration of prejudice to the accused involves a consideration of demonstrated actual prejudice and prejudice which maybe inferred in a particular circumstance.

The form which prejudice may take can be identified when the purpose underlying the right isconsidered, that is, the anxiety and stigma which flow from a criminal proceeding, the impact of restrictive bail conditions and theprotection of the fair trial right through the preservation of relatively fresh evidence.

Justice Lamer in the Morin decision at paragraph 5described this prejudice as follows: ...'stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption offamily, social life and work, legal costs, uncertainty as to the outcome and sanction'. [20] The court may also infer prejudice. In R. v. Godin, 2009 SCC 26 , [2009] SCJ 26, the Supreme Court of Canada statedthe following at paragraph 31: The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin, at p. 801, even inthe absence of specific evidence of prejudice, 'prejudice may be inferred from the length of the delay. The longer the delay the morelikely that such an inference will be drawn.' Here, the delay exceeded the ordinary guidelines by a year or more, even though the casewas straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

Continuing at paragraphs 37 and 38 as follows: It is difficult to assess the risk of prejudice to the appellant’s ability to make full answer and defence, but it is also important to bear inmind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority ofthe Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforwardcase to trial. As noted already, prejudice may be inferred from the length of the delay.

Paragraph 38: Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant’s ability to make fullanswer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make fullanswer and defence is not invariably required to establish a s. 11(

b) violation. This is only one of three varieties of prejudice, all ofwhich must be considered together with the length of the delay and the explanations for why it occurred. [21] In the present case the period of delay from the charging date in February of 2010 to the trial date in June of 2011 is 16 months. Mr. Lee made his first appearance two weeks later on March 1st. Despite the fact the events occurred about five months earlier, noCrown particulars were ready on the first appearance date.

The availability of particulars was an entirely reasonable expectation bearingin mind that this was a relatively straightforward investigation which would be substantially complete on the day or within a day or twoof its occurrence. Notwithstanding this, Mr. Lee's counsel was told that particulars might not be available for some time. Noexplanation for why this might be so is provided. [22] It is reasonable to expect the prompt delivery of particulars on a case like this.

Where counsel has been readily retained andwhere it is clear there is a desire on the part of the defence to move the matter expeditiously, as is demonstrated in this case, it isreasonable to expect that after an adjournment to take instructions on those particulars a trial date would be set at the next appearance. Inthis case, however, instead of fixing a date on the next appearance three weeks later the matter had to be adjourned to allow that reviewto occur. The date was fixed on the subsequent appearance date. [23] It is not unusual for several appearances to occur before a date is finally fixed.

Often this reflects the recognized disinterest thatan accused person may have in seeing his case move expeditiously. In Mr. Lee's case, however, every step taken by him and by hiscounsel demonstrate an urgent desire to move expeditiously to trial and resolution.

The Crown is, therefore, responsible for a delay fromthe second appearance on March 22nd to the final date fixing on April 16th, a period of about three weeks. [24] There is an inherent delay in bringing the accused to court following the laying of a charge, a period of two weeks, and threeweeks to allow for review of the particulars and the taking of instructions. I would subtract that five-week total period from the 16-month period, leaving just under 15 months as the relevant period for assessment of actual delay.

In evaluating that period I concludethere is no delay which may be ascribed to either the accused, who took the first available trial date, or to the Crown. [25] The limit on institutional resources is an issue in this region of the Province which has been addressed by several judges in recenttimes. Judge Gulbransen, who is the Administrative Judge in this region, addressed that issue in the Moskal case in November of 2010where he stated the following at 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 attritionfrom 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 so crowded, that in many cases there will be an unreasonable delay should there be even one adjournment on a trial date. As I have already said, 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. [ 26 ] This relatively straightforward trial requiring one day of court time could not be scheduled for 14 months. There was not one day available in 14 courtrooms here in this building. That period is four to six months beyond the guideline range. [ 27 ] The defence argues that prejudice is present when one considers the personal circumstances of Mr. Lee as described in his affidavit. Several aspects of those circumstances are worries and concerns which every person faces when confronted with a criminal charge.

Embarrassment, loss of esteem among family members, inconvenience arising from driving prohibition, the potential impact of a conviction on the ability to travel are examples taken from Mr. Lee's affidavit. [ 28 ] The defence argues that although these are concerns every accused faces, the concept of security of the person contemplated within the underlying purpose of the right allows these issues to be considered when the time period reaches well beyond the guideline range. I am satisfied that is so. It is precisely the point addressed by Justice Lamer in Morin and Justice Cromwell in Godin .

It is one factor to consider, however. [ 29 ] Restrictive bail conditions are, of course, not an issue here. No particular assertion is made that the evidence has or will have deteriorated. It is only reasonable, however, to infer that over a period of 16 months memory of details of an event will not be as that memory would have been at an earlier point. The length of delay here gives rise to an inference of prejudice which the Crown, I conclude, has not rebutted. [ 30 ] In the present case Mr. Lee has demonstrated an urgent motivation to deal with this charge swiftly.

He has been thwarted in doing so by the slow response of Crown authorities in the preparation of particulars. I also view as relevant the unexplained and entirely unnecessary delay in laying the charge and bringing him before the court. No issue of ongoing investigation has been identified to explain why an appearance date almost five months after the event was set, despite defence efforts to shorten that time period. In my view, that pre-charge time period and those events are of assistance in providing context to Mr.

Lee's wish to have the matter move forward and help to explain why the personal concerns he describes in his affidavit should carry weight when balancing the interests at play in this case. [ 31 ] Having considered the factors identified by the Supreme Court of Canada, I must balance the accused's interest in a trial within a reasonable time with the community interest in seeing criminal charges resolved on their merits. [ 32 ] Mr. Lee demonstrated at every step his desire to resolve this matter expeditiously. He has explained why that is important to him and the continuing impact the delay has had.

I have found there is actual prejudice and, in the time period involved here, I find there is prejudice to be inferred. [ 33 ] Drinking driving offences are of significant concern in the community and the community should reasonably expect accused persons to be brought before the court; however, the community must also be seen to recognize the value of Charter rights, which the courts protect in proper circumstances. [ 34 ] Mr. Lee's right to a trial within a reasonable time has been breached. There will be a judicial stay of proceedings. (RULING CONCLUDED)