R. v. Pridy Date:, 2011 BCPC 325

Citation: R. v. Pridy Date: 20111121 2011 BCPC 0325 File No: 180968-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LIEF MILTON PRIDY RULING ON APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS OF THE HONOURABLE ASSOCIATE CHIEF JUDGE G.S. GILL Counsel for the Crown: B. Lane Counsel for the Defendant: A. Robinson Place of Hearing: Surrey, B.C. Date of Hearing: September 13, 2011 Date of Judgment: November 21, 2011 [ 1 ] THE COURT : Mr.

Pridy is charged with the impaired care and control of a motor vehicle and the care and control of a motor vehicle while having a blood alcohol concentration exceeding 80 milligrams percent. [ 2 ] He brings on an application seeking a judicial stay of proceedings alleging that his s. 11(

b) right of the Canadian Charter of Rights and Freedoms has been breached.

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. [ 3 ] The undisputed chronology of events is that Mr. Pridy was arrested for impaired driving on December 11th, 2009, being the alleged offence date. Thereafter, the Information was sworn March the 10th, 2010, and there was a first appearance on March 11th. On June 25th of 2010, the first trial date was set for August the 17th, 2011.

On August 17th, the parties attended for their trial and waited until approximately mid-afternoon when advised the matter would have to be adjourned due to lack of court time. A second trial date was fixed, being September 13th, 2011, and it was on that date that the s. 11(

b) application was heard; thus, the total length of delay from the laying of the Information until the trial date is 18 months. [ 4 ] The case authorities on s. 11(

b) are well-known and I do not propose to review them in any detailed fashion, but rather to draw upon the points most directly pertinent to this ruling. I will start with the Supreme Court of Canada decision in R. v. Morin . Under Morin , the primary purpose of s. 11(

b) is the protection of the individual rights of the accused, namely the right to security of the person,

the right to liberty and the right to a fair trial. As noted in paragraph 23 of that decision: The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. [ 5 ] There is also a secondary purpose to s. 11(

b) which is the societal interest in ensuring that persons accused of crimes are treated fairly and brought to trial and dealt with according to law. This societal demand increases in proportion to the seriousness of the offence.

This secondary purpose can be in complete alignment with the primary purpose but not necessarily in every case. [ 6 ] In undertaking any analysis as to whether the delay has become too long, the court in Morin listed the following factors which must be considered: Firstly, the length of the delay; secondly, the waiver of any time period; thirdly, the reasons for the delay including inherent time requirements of the case, actions of the accused, actions of the Crown, limits on institutional resources, and other reasons for delay; and then fourthly, any prejudice to the accused. [ 7 ] It must be emphasized that while engaged in analyzing these factors and applying any applicable guidelines, the exercise must be conducted not mathematically or even administratively, but rather, judicially.

Ultimately, it is not the delay in and of itself that is a cause for concern, but rather the impact of that delay in causing prejudice to the rights protected under this section. [ 8 ] I will now proceed to apply the just-noted factors to the particular case at hand. [ 9 ] Firstly, the overall delay, as earlier noted, is a total of 18 months. This is more than enough to trigger the threshold for examination under s. 11(b).

The constitutional guidelines provided under Morin set out a range of eight to ten months as a reasonable period for institutional delay in the Provincial Court, but capable of being adjusted somewhat as necessary, either upward or downward as deemed necessary, to reflect local conditions or change in circumstances. In the instant case, neither Crown nor defence suggested that this guideline range should be adjusted in any fashion, and I would only note that it appears to have been adjusted upward to some degree in Surrey for some time, but I will leave it at that.

The range is essentially as set out in the Morin decision. [ 10 ] Secondly is the question of waiver of any time period. In the case before me, neither party indicated the presence of any applicable waiver. [ 11 ] The third category is the most comprehensive, dealing with the reasons for the delay. In this category it would appear that approximately three months were required before the matter was ready to be set for trial.

It seems to me this would be towards the high end of how long it might take in such a case in Surrey in order to deal with intake and all of its constituent elements, including retaining counsel, completing disclosure, discussing potential admissions and the like.

I make this observation based mostly upon the general experience and without either party specifically delving into any particular specifics involving this interval of time, but everyone appeared to be ad idem that this was a not inappropriate or unreasonable period for intake. [ 12 ] The other potential reasons for delay, being actions of the accused and actions of the Crown, are both unremarkable with no conduct attributable to either party being brought to my attention, or otherwise identified. [ 13 ] The final category of reasons for the delay, being the limit on institutional resources, is alone responsible for the entirety of the delay from the time this matter was ready to be set for trial until the time of the second trial date.

Despite everyone's best efforts, the system was simply not able to offer a first trial date much before 12 months from when the parties were ready. The first trial date in and of itself represented a delay significantly exceeding the earlier-noted constitutional guidelines. Indeed, and to underline this point, it should be noted that counsel to Mr. Pridy notified Crown counsel of his intention to bring an application pursuant to s. 11(

b) as a result of the delay associated with this first trial date. However, to make matters worse, the case was not able to proceed on that first date due to lack of court time and other matters being determined to require greater priority, and as a result the case was, by approximately mid- afternoon, remanded to fix a second trial date. [ 14 ] Therefore, the total delay commencing from the date the parties were ready to fix a date for trial, up to the second date and the making of the s. 11(

b) application, is just over 15 months in duration and is entirely attributable to a limit on institutional resources. [ 15 ] I will now make a few observations regarding those constraints. It is by now plain to all that the province is significantly short of an adequate complement of Provincial Court judges and support staff. As regards this shortage in complement, this is not a newly- developing situation but rather one that has been made known to government for some time.

The court's report entitled "Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources" and dated September 14th, 2010, pointed out that the Provincial Court of British Columbia is the only Provincial Court in Canada with fewer judges today than in 2005.

As at the date of that report there were 17 fewer judges than in the benchmark year of 2005. [ 16 ] In providing this report to government and to the public, the court made clear its understanding and appreciation that public resources are not unlimited and that this information was therefore provided to assist government in making its decisions regarding appropriate resources. [ 17 ] In the approximately 14 months since the preparation of that report, the government has not acted to remedy the aforesaid 17- judge shortfall and complement in any meaningful fashion, and in fact, as at October the 31st of this year, the net increase in complement has been less than one full-time judge equivalent.

Here it should be noted that although government did indeed make a number of judicial appointments over the past year, those appointments have been at a level only sufficient to prevent the shortfall from becoming worse due to additional vacancies.

In other words, the appointments have had virtually no net impact on the severe shortage in complement as originally noted, the judicial complement as at September 30, 2010, being 126.3 full-time-equivalent positions, and the complement as at October the 31st of this year being 127.0, an increase of less than one full-time-equivalent judge. [ 18 ] The foregoing statistical information and the report from which it is gleaned is available on the Provincial Court's website. This

information is provided in this judgment to provide an appropriate context to the limitation on institutional resources and government's response to it. I would only add that there have recently been a number of additional judicial appointments at the Surrey Provincial Courthouse; however, those appointments are too recent to have any impact on this case or on the many cases that are already in the system, and pushing at the limits of constitutional delay. In that regard, it should be noted that the backlog of cases experiencing delay continues to grow.

Once again, from statistical information available on the court's website, there were, as at March 31st, 2010, 28,867 adult cases pending province-wide.

Of these, 6,894, or 43 percent of them, were cases that have been pending for 12 months or longer, and 2,038, or 13 percent, were pending for longer than 18 months. [ 19 ] By contrast, more recently, or as at September 30th, 2011, from a total pending adult criminal caseload of 25,038 cases, the number of cases pending for 12 months or longer has now grown to 7,607, and of even greater concern, the number of cases pending for longer than 18 months has grown to 2,522, or 18 percent of the total.

This is a substantial increase in the cases pending for longer than one year. [ 20 ] Summarizing the foregoing, this case involves an institutional delay of just over 15 months constituting significant departure from the earlier-mentioned guideline range of eight to ten months.

This institutional delay is attributable entirely to limits on the institutional resource which has been made known to government for more than a year but which has resulted in a province-wide increase of less than one judge, and a net change in Surrey of 1.9 full-time-judge equivalent. [ 21 ] The current delays being experienced in the justice system are not ones that can be described as temporary or unforeseen, nor do they stem from a sudden upswing in case volumes overwhelming the system.

Clearly, the cause of the problem is a court with a significant and chronic reduction in complement despite the provision to government of timely and detailed information outlining the shortage, as well as the potential consequences of failing to address it. [ 22 ] It is against this delay, and the reasons for delay, that the matter of any prejudice to the accused must now be assessed in respect of the particular charges that he faces. Firstly, given Mr. Pridy's release on a Promise to Appear on the evening in question, there is no demonstrated prejudice to his liberty interests.

The next interest, being the right to a fair trial, also does not appear to have had any claimed prejudicial impact other than what was suggested by counsel as arising from the overall passage of time; in total just over 18 months. In this regard it was urged upon the court by defence to infer prejudice as permitted under case law where the total delay reaches certain proportions. [ 23 ] As previously noted, the total delay is just over 18 months. In his 1998 decision to the case of R. v. Walker , Mr.

Justice (now Chief Justice) Bauman of the Supreme Court, in dealing with a corresponding delay of 20 months on similar charges, had this to say at paragraph 20: Still, this accused has faced criminal charges which have remained unresolved for an extended period. Impaired driving is properly considered to be a serious offence in our society. One cannot dismiss lightly the stress such charges place on an accused person or the potential for damage to his or her reputation while they remain outstanding. And further, in paragraph 21: The delay in this case has been a long one.

In my view, it is an appropriate case in which to infer prejudice to the accused arising out of the mere fact of the delay. [ 24 ] Although the total delay in the Walker case, being 20 months, was approximately two months more than the delay in the instant case, it would be, in my view, appropriate to infer a not-insignificant degree of prejudice also accruing to Mr. Pridy .

However, in the event that I am wrong in drawing this inference or placing too much weight upon it I find, for the reasons which I will now describe, actual prejudice to have been proven in any event, and that is in respect of the impact on the security of the person. [ 25 ] In that regard, Mr. Pridy filed two affidavits, as well as providing viva voce testimony. In his first affidavit he described his employment with a building-moving company owned by him and his brother. That employment requires him to actually participate in the monitoring of wide-load buildings being transported via truck over public roads.

This requires a driver's licence as well as what he described as a set of highly-specialized skills developed through his many years with the company. In terms of any impact on the right to security of the person, the accused described in his affidavit that the company was required to turn away significant volumes of potential work due to the uncertainty over the outcome of this case.

While the uncertainty over the outcome of these charges would exist regardless of any delay associated with the case, I infer from his affidavit that the degree and volume of work turned away was extended by the delays in getting to trial. Overall, he estimated a loss of between $200,000 to $300,000 in revenue . [ 26 ] The accused also attested to difficulty sleeping at night as a result of the charges and the financial impact on the company arising from having to turn away business pending the ultimate conclusion of the matter.

Finally, he described the long-term uncertainty and associated irritability having also strained his personal relationships. [ 27 ] The accused lives in Courtenay. Although I am not aware of the total number of court attendances necessary to deal with this matter, it is fair to say that each such attendance for him would therefore have required significant travel time and expense in travelling from Vancouver Island to the Lower Mainland, and then back home. [ 28 ] In his second affidavit, Mr.

Pridy also attested to a financial expense of $1120 attributed to the extra legal fees and tax thereupon arising from the adjournment of the matter on the first trial date. [ 29 ] In review of the foregoing then, this accused has experienced a total delay from the date of the Information being sworn until the ultimate trial date of just over 18 months, and out of which just over 15 months is attributable to a lack of institutional resources as compared to a guideline range of eight to ten months. [ 30 ] The 17-judge shortfall in judicial complement is not sudden, but instead, chronic, and has been largely unaddressed by government, which is a decision entirely within its rightful domain.

[ 31 ] Based upon the evidence presented, I find the delay has resulted in prejudice to the rights of the accused that are protected by s. 11(b), and I find those interests in this case, having regard to all of the circumstances outlined in this ruling, outweigh any societal interest in this matter proceeding any further. The constitutional breach having therefore been made out, I direct that there be a judicial stay of all counts on the Information. (RULING CONCLUDED)