R. v. M.C.E. Date:, 2012 BCPC 279

Citation: R. v. M.C.E. Date: 20120604 2012 BCPC 0279 File No: 182037-1-K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.C.E. RULING ON APPLICATION OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: K. Kinash Counsel for the Defendant: A. Rogers Place of Hearing: Surrey , B.C. Dates of Hearing: March 8, March 12, May 30, 2012 Date of Judgment: June 4, 2012 [ 1 ] THE COURT : M.C.E. is before the court on Information 182037-1-K, charged with assault causing bodily harm to D.M.C.,

and uttering threats to cause death or bodily harm to that person. The charges arise from events on April 30th, 2010. [2] M.C.E. is scheduled for a one-day trial tomorrow, June 5th of 2012. He applies for a judicial stay of proceedings. He says hisright to be tried within a reasonable time pursuant to s. 11(

b) of the Charter has been breached. [3] As the assigned trial judge, I heard the application on May 30th of 2012. At that hearing, the affidavits of M.C.E. and BrittanyHalters, a staff member in the office of M.C.E.’s counsel, were filed. M.C.E. was cross-examined by Crown counsel. The parties werealso agreed on certain factual issues respecting the chronology of events, which I will review shortly. The matter was adjourned to todayfor my decision. [4] In R. v. Young, which was a decision that I gave on March the 8th of this year, I summarized the general principles which applyon applications under s. 11(

b) and I am going to use several of those paragraphs again to summarize those principles, rather than simplyrewrite them again in different words bearing in mind the limited time available. [5] Paragraphs 13 to 15 state the following: [13] The general principles on which applications of this type are to be assessed are set out in the decisions of the Supreme Court ofCanada in cases such as R. v. Morin, (SCC), [1992] SCJ 25, and R. v. Godin 2009 SCC 26. The right to be tried withina reasonable time under s. 11(

b) of the Charter addresses first the individual's interest in security of the person by seeking to minimizethe anxiety, concerns and stigma of exposure to a criminal charge; secondly, the individual's liberty interest by seeking to minimize theaccused person's exposure to, for example, restrictive bail conditions; and third, the right to a fair trial by attempting to ensure thatproceedings occur while evidence is available and fresh.

There is a further societal interest which parallels the accused's interest andwhich 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 attrial. [14] In addressing and balancing these interests the following factors are to be considered by the court: First, the length of the delayinvolved; 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 fourthconsideration 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 beundertaken where the length of the delay is arguably unreasonable. The Supreme Court of Canada has pointed out that as a guidelinetrials in the Provincial Court should occur in the eight-to-ten-month range. This does not mean that any delay beyond this range will beunreasonable; however, a delay much beyond this range has been sufficient in this jurisdiction to raise an issue as to whether it isreasonable, and an inquiry addressing the relevant interests and factors earlier referred to is then to be undertaken. (R. v.

Young, SurreyRegistry #178004-2-C, March 8, 2012) [6] In addition, I emphasize that the analysis does not involve the application of a simple mathematical formula. Each case isassessed on its own facts and the balancing of the factors and interests referred to earlier. A particular period of delay may beunreasonable in one case, but not in another. [7] In outlining the circumstances of the court appearances which follows, I rely on the chronology provided by defence counselwith which the Crown is in agreement.

No transcripts of court 100 appearances are available. [8] The events giving rise to the charges are alleged to have occurred on April 30, 2010. The Information before the court wassworn May 10th, 2010. On that day, M.C.E. turned himself in and was released on a recognizance perfected by way of a $2500 cashdeposit. He was required to report to a bail supervisor. The recognizance included no-contact provisions and a firearms prohibition. [9] M.C.E. retained counsel, who wrote to the Crown on May 14th of 2010 requesting particulars.

M.C.E. made his firstappearance, with counsel, in courtroom 100 in the Surrey courthouse on May 25th of 2010. A copy of the Information was provided. The matter was adjourned to June 7th of 2010 so disclosure could be provided to the defence. [10] At the June 7th appearance, defence counsel was given an initial disclosure package. The matter was adjourned to June 21st of2010 so that Crown counsel could attempt to interview the complainant and disclosure reviewed by the defence. [11] On June 18th of 2010, defence counsel wrote to the Crown with a list of eight items of further disclosure sought by thedefence.

Of significance in that letter is item 7, which is as follows: Confirmation as to whether the complainant has received counselling with respect to this matter, for substance abuse or otherwise. Iappreciate that the Crown may or may not be in possession of any counselling records. I am trying to determine whether there arerecords which might be the subject of an O'Connor application. Assistance in this regard would be appreciated.

Item 4 in the letter sought copies of any medical reports. [12] On June 21st of 2010, the case was again adjourned to July 12th, 2010 as the Crown tried to locate the complainant for aninterview and to follow up on disclosure referred to in the June 18th letter. On July 12th, 2010, the case was adjourned for the samereasons. [13] On July 26th, 2010, the case was adjourned again, as the Crown continued to attempt to reach and interview the complainant. The Crown advised that hospital records were being obtained for disclosure.

[ 14 ] On August 23rd, 2010, the case was again adjourned, as the Crown continued to try to locate the complainant for an interview. The Crown advised the hospital records would be available at the next appearance. [ 15 ] On September 23rd, 2010, the complainant had not yet been located and the hospital records were not yet ready. [ 16 ] On October 4, 2010, the Crown advised it had now been able to

schedule an interview with the complainant. The hospital records were not yet ready. [ 17 ] On October 18, 2010, the Crown informed defence counsel that the complainant had been interviewed and it was ready to set the matter for trial. Medical records were disclosed.

The matter was again adjourned to allow counsel to review the new disclosure. [ 18 ] On November 8th of 2010, six months after the charge was laid and on the tenth appearance in court 100, the matter was arraigned and set for a one-day trial on February 28th of 2011, approximately three-and-a-half months off. [ 19 ] A trial confirmation hearing was set for January 27th of 2011.

On that date, the trial was adjourned at the request of the defence because counsel had recently undergone surgery and would be unavailable for the trial. [ 20 ] On February 1st of 2011, the matter was reset for a one-day trial on September 28th of 2011. The parties are agreed that July 20th of 2011 was offered as an earlier date, but defence counsel was not available.

In any event, the defence waived delay for the seven- month period from the first trial date to September 28th of 2011. [ 21 ] At the trial confirmation hearing on August 18 of 2011, both parties indicated they were ready to proceed on the trial date and the date was confirmed. It appears on the Crown's Trial Readiness Report dated June 20 of 2011 that at least as of that date, the Crown was not able to confirm that all witnesses were notified.

There is no indication which witness or witnesses were not yet notified as of June 6th, 2011, or whether that situation had changed by August 18, 2011 when the parties confirmed they were ready to proceed. However, the transcript of subsequent proceedings on September 28th of 2011 establishes the complainant was served with a subpoena on February 17th of 2011, so I conclude that it was not the complainant being referred to in the Trial Readiness Report. [ 22 ] The trial did not proceed on September 28th, 2011. The complainant failed to appear pursuant to the subpoena.

The defence entered pleas of not guilty and opposed the application to adjourn the trial. A warrant was issued for her arrest. The matter was adjourned to October 5th, 2011 to set a new date. The complainant attended court at 3:45 p.m. on September 28th and was arrested pursuant to the warrant and ordered to return to court on October the 5th, 2011. [ 23 ] On October 5th, 2011, the complainant again failed to attend court and a warrant issued for her arrest. A one-day trial was reset for December 13th, 2011.

The parties agree that the court had November 9th, 2011 available, but that date was declined as unavailable to defence counsel. [ 24 ] On October 7th of 2011, the complainant was arrested and released to attend court on the trial date. [ 25 ] At the trial confirmation hearing on November 10th of 2011, Crown counsel delivered a letter to the defence stating: There is no information on the Crown file as to whether D.M.C. has received counselling with respect to this matter. [ 26 ] On December 11th of 2011, Crown counsel informed defence counsel that she had just interviewed the complainant in preparation for the trial and had been informed that indeed the complainant had received counselling in respect of these charges. [ 27 ] On December 13th of 2011, the third trial date, the defence was granted an adjournment to permit an investigation into the existence of counselling records.

The Crown took no position on this adjournment application. Approximately 19 months had passed since the Information was sworn, and just less than that period since the letter from defence counsel to the Crown, setting out his interest in determining if counselling had occurred so that he could consider whether an application to access those records was necessary.

Further, although this was the first time trial counsel for the Crown had an opportunity to inquire into counselling records, the Crown had interviewed the complainant in or about mid-October 2010 at a point when the defence request for information respecting counselling was in the hands of the Crown, but no particulars were provided at that time, approximately 14 months earlier. [ 28 ] The matter was adjourned to January the 16th of 2012, at which time the fourth trial date was set for June the 5th of this year. [ 29 ] In the meantime, the defence launched an application for access to counselling records.

A hearing commenced on March the 8th of 2012. The application was ultimately withdrawn without prejudice to the accused on March 12th of 2012. [ 30 ] To summarize then, the time periods from the swearing of the Information are the following; six months to the arraignment and fixing of the first trial date, 9.5 months to the first trial date, 16.5 months to the second trial date, 19 months to the third trial date and 25.5 months to the fourth trial date.

The defence has specifically waived seven months between the first and second trial dates. [ 31 ] The first stage of the analysis is to determine the period of delay which could arguably be excessive. In the present circumstances, however, one assesses the impact of a six-month period from charge to arraignment, or the seven-month period following adjournment of the first trial date, the timeframes exceed the generally accepted guideline period of eight to ten months for

summary trials in the Provincial Court which was established by the Supreme Court of Canada in R. v. Moran , and therefore an inquiry as to their reasonableness is called for. [ 32 ] I will first address the seven-month period following the adjournment of the first trial date for medical reasons involving defence counsel. The parties are agreed this should be treated as waived by the defence for delay purposes, and I will deduct it from the period to be assessed, leaving 18.5 months.

[33] I note here by way of caveat, however, that although this delay is attributable to the defence, it does not arise out of any actionor tactic on the part of the defence, and particularly on the part of M.C.E., to delay the process. M.C.E. was in the unfortunate positionof having retained and instructed counsel who was unable, for medical reasons, to attend on the trial.

That fact I will bear in mind whenaddressing the issue of prejudice later in these reasons. [34] The next issue to assess is the inherent time requirements of the case, which most substantially refers to the period from thelaying of the charge to the arraignment of the accused and the fixing of the first trial date. The inherent time period is that period of timereasonably required to bring the charge and the accused before the court, to obtain counsel, address bail, provide disclosure, and forcounsel to take instructions.

The more complex the case, the longer the time requirement to reach the point arraignment might occur. [35] In the present case, the period in issue is six months. The parties are not in agreement as to how this period should be treated. The defence points out that this is not a complex case from the prosecution perspective, requiring the complainant and several policeofficers. The requests for disclosure were made promptly, and yet nine appearances were required in the date-fixing court before theCrown could confirm it was ready to arraign the accused.

The defence says that even at that point, the element of disclosure relating tocounselling history was not addressed and would not be addressed for a further 14 months.

The defence says the burden was not onM.C.E. to press the Crown to arraign the accused, but rather the responsibility rested with the Crown to have sufficient control of the file,that if an interview with the complainant was required, this could be done expeditiously. [36] The Crown says it acted reasonably throughout and that the defence carried a responsibility to press to have a date fixed and itdid not do so. [37] Although the facts are not precisely the same, I note the following statement by Seppi J. of the Ontario Superior Court of Justicein a case called R. v.

Hundal in 2009 where he stated: In the case at bar, the Crown has alleged the actions of the accused exacerbated the delay by their lack of proactive conduct in movingthe matter forward. First of all, it is the duty of the Crown to move the case forward. (R. v. Hundal 2009 OJ 2109 at para. 45) [38] I view a six-month period to bring a relatively straightforward matter such as this to arraignment as unusual, particularly wheredefence counsel was retained and engaged before the first appearance and has placed disclosure inquiries on the record.

The evidencehere establishes that it is the Crown who was unable to address disclosure, because the complainant is unreachable for a large part of thattime. Although there is no lack of diligence on the part of Crown counsel, the fact is arraignment was delayed while the Crown tried tofind and interview its prime witness. In these circumstances, this is not all neutral time.

The defence may have acquiesced in thisprocess and not objected or demanded a trial be fixed, but I cannot find this is done with any ulterior motive, and particularly where, ashere, it supports, at least in part, a defence request for disclosure.

The facts here do not support an argument that the defence is notinterested in bringing the matter to trial in a timely way, or in the hope that the longer the time passes, the more likely the Crown will beunable to mount its case. [39] Although it is not possible to precisely weigh the allocation, I have determined three months should be treated as inherent delay,and neutral in the analysis. [40] Excessive institutional delay is not an issue raised in these circumstances.

Further, the several dates which I noted earlier wereavailable to the court but not to defence counsel, should not weigh, in my view, heavily against the defence in the analysis. There is anexpectation of reasonable availability and co-operation by counsel in setting dates, but not perpetual availability. (R. v. Godin, 2009 SCC26 , [2009] 2 SCR 3 at para. 23) [41] M.C.E. is not himself directly responsible for any period of delay as we approach the fourth trial date.

The balance of the timeperiod following loss of the first date to defence adjournment arise from the failure of the Crown's principal witness to attend court onthe trial date, and then late disclosure of the fact of counselling. [42] In respect of the failure of the complainant to attend for the second trial date despite service of a subpoena, the Crown assertsthere were medical reasons for her absence. Although that assertion is made, it is not supported by, for example, a letter from aphysician or an affidavit from the complainant.

In the absence of such support and in the context of a failure to appear as ordered a weeklater, I place little weight on that offered explanation in assessing the implications of the time lost due to the failure of that trial date. [43] Further, the Crown must carry responsibility for the late disclosure of the counselling history involving the complainant, whichled to adjournment of the third trial date. That question was a longstanding disclosure inquiry from defence counsel dating to the earlieststages of the court process involving M.C.E.

Although the complainant appeared to present challenges to the Crown in maintainingcontact, opportunities to address the issue did arise from time to time and well in advance of the December 2011 trial date. For example,the interview eventually conducted in mid-October of 2010 before the first date was fixed, September 28th of 2011 when she eventuallyattended court and was arrested on a material witness warrant, and again on October 7th of 2011 when the complainant was againarrested for failing to attend as ordered.

There is no evidence before the court on this application that the issue of counselling raised bydefence counsel in his letter of June 18, 2010 was ever taken up with the complainant until she was interviewed several days before theDecember 13th, 2011 trial date. [44] The Crown argues that the issue surrounding a counselling history should not weigh heavily on the deliberations becausealthough the defence commenced an application to access counselling records, it was withdrawn. I disagree.

It is the fact of the latedisclosure and the resulting adjournment which is significant in the analysis, not how the information may ultimately be used or pursuedby counsel once he has had a chance to assess it. It was the late disclosure which led to the loss of that trial date. [45] I am now going to address the fourth factor in the analysis, which is prejudice to the accused. The Supreme Court of Canadahas said that where prejudice is not inferred on the circumstances or otherwise proven, the basis for the enforcement of the right to betried in a reasonable time is seriously undermined. (R. v.

Morin at para. 61)

[ 46 ] Here, M.C.E. says that he has suffered actual prejudice based on the evidence led, and he asserts that prejudice should be inferred based on the long delay in bringing the matter to trial. The Supreme Court of Canada has said that the longer the period of delay, the more likely prejudice will be inferred. ( R. v. Morin at para. 61 ) [ 47 ] When assessing prejudice, the court must consider whether the prejudice relates to one of the interests this Charter right seeks to protect; that is, the accused's interest in security of the person, liberty and fair trial rights.

The prejudice must be shown to arise because the trial process has been unreasonably prolonged, not simply because the accused is compelled to face criminal proceedings.

Not every prejudice will be sufficiently significant or serious that it will overcome the community interest in seeing criminal charges resolved in court on their merits, or ultimately to justify the granting of what is an extraordinary remedy to be used only in the clearest of cases. [ 48 ] M.C.E. asserts that he has suffered actual prejudice in respect to each of the three interests referred to. [ 49 ] In respect to his fair trial interest, M.C.E. says there was delayed disclosure of the complainant's counselling history, which resulted in the loss of the December 2011 trial date.

I place little weight on this argument. The remedy granted was an adjournment to allow the issue to be investigated and, if necessary, pursued. The availability of an application to gain access to the records is relevant, and access would be permitted to the extent a court determines that to be appropriate if the application is pursued.

Here, although the time lost by reason of the adjournment is not to be counted against M.C.E. and rests on the shoulders of the Crown, no actual prejudice to M.C.E.'s fair trial rights has been shown to arise from that adjournment. [ 50 ] M.C.E. says that he has suffered prejudice to his liberty interest, because he has been bound by a personal reporting condition for two years following his release on a recognizance. In his affidavit, he stated he has been reporting in person once a month. In his evidence, on cross-examination, he suggested he began reporting weekly, and then biweekly and then monthly.

The recognizance allows reporting as directed by the bail supervisor. M.C.E. says the reporting requirement meant that he had to be reassigned by his employer on days that he had to report to his bail supervisor from his regular job, operating a construction crane at $42.20 an hour, to yard work at $33 an hour over the two-year period. He calculates this loss at $5,000 to $7,000, bearing in mind the reduced hourly rate and the possible loss of overtime. He says that during this period, he has reported to at least nine, and perhaps as many as 15, different supervisors.

As a result, he has been unable to develop a rapport with any particular supervisor such that he might have been able to request, for example, reporting by telephone. Although Crown counsel points out that M.C.E. could have applied to the court to vary or even to be relieved of the reporting requirement, and did not, I take as well the argument of his counsel that the fact is M.C.E. reported as directed throughout, and pursuant to a court order.

There is no evidence he failed to comply with his bail obligations. [ 51 ] I conclude that the bail obligations, including the tendering of $2500 in cash and the reporting condition placed some level of restriction on M.C.E. This is not unusual in criminal cases. In fact, it is relatively common. It amounts to some degree of prejudice to an accused person. The question here is whether the prolonging of that prejudice has weighed unreasonably on M.C.E. Clearly, some portion of the financial loss would have occurred in any event in getting to the September 28, 2011 trial date and thereafter.

I accept that he has suffered some prejudice to his liberty interest by virtue of this matter being extended. [ 52 ] M.C.E. says he has suffered prejudice to his personal security interest. He points out that each adjournment has resulted in the need to re-prepare for his trial and the need to continue to engage counsel has resulted in increased legal fees. He offers the figure of $40,000 as an estimate of the added cost, although this figure appears to include an estimate for lost wages, which I referred to a moment ago.

In any event, it is a substantial amount. [ 53 ] M.C.E. refers to worry, anxiety and stress which has led to sleeplessness and distractions at work, affecting his job performance and which has attracted the attention of his supervisor. M.C.E. states in his affidavit that this led him to see his family doctor who recommended he see a counsellor. In his affidavit, he says he did so for one session about a year ago, which would be prior to the second trial date. He did not attend counselling again. He stated that the $300 fee that he paid for the single session was more than he could afford on a continuing basis.

In cross-examination, M.C.E. agreed that he did not look for other more affordable counselling. No medical report was filed. In cross-examination, he agreed that his doctor did not diagnose a particular condition. [ 54 ] M.C.E. said his stress related to the proceedings continuing for so long, missing work for court purposes, loss of wages and work performance. He agreed that the fact that he was charged and before the court itself is stressful, and this is entirely to be expected.

Most people experience anxiety simply by reason of having been charged, and such stress is likely to continue, perhaps experienced by different people in different ways and to varying degrees. [ 55 ] I would conclude on the evidence here that M.C.E., like most people, experienced stress and anxiety, which continued over the period this case has been extended before the court. Although it has manifested itself in certain ways, it has not debilitated him or prevented him working, and it has not required ongoing medical or counselling supervision in order for him to function.

But it is, nevertheless, present and impacting on him. [ 56 ] I conclude that M.C.E. has suffered some level of extended actual prejudice to his liberty and personal security interest as a result of delay. [ 57 ] A further question to consider is whether, beyond proof of actual prejudice, there is a basis to infer prejudice to M.C.E.'s Charter-protected interest by virtue of the delay in bringing the matter to a conclusion. The Supreme Court of Canada, in R. v. Godin , concluded that prejudice cannot be considered in isolation or separate from the length of the delay.

The court said: …even in the absence of specific evidence of prejudice, prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. ( R v. Godin , supra , para. 30 ) The court referred to this as "the risk of prejudice." ( R. v. Godin , supra , para. 31 ) [ 58 ] M.C.E. says the length of the delay here supports the inference being drawn. The drawing of an inference of prejudice is not

automatic. The court may or may not draw the inference. The drawing of an inference of prejudice requires some consideration of context. [ 59 ] Here I take account of the passage of over 25 months to bring a relatively straightforward investigation and charge to trial. Although there is a period of inherent delay and a period waived by the defence, the fact is that M.C.E. himself is not responsible for any of this.

He, by all accounts, has been ready to address the charges from the outset, following early retention of counsel and specific requests for disclosure. [ 60 ] Early attention by the Crown or its agencies to the whereabouts of the complainant and her counselling history did not occur. The charges of the sort M.C.E. faces frequently turn on credibility of witnesses. Although no recollection will be perfect, even within the guideline period, the ability to recall detail will generally continue to decline the longer the period to trial is prolonged.

The usual stressors, whether personal or financial, will continue to a degree, perhaps varying from person to person. [ 61 ] I conclude there is reason here to infer prejudice. [ 62 ] The final issue to address is whether the actual prejudice and the inference of prejudice in this case, when balanced with society's interest in the resolution of criminal charges at trial, call for the court to take the extraordinary step of entering a stay of proceedings. In R. v. Godin , the court concluded its reasons by quoting from the decision of R. v.

Moran at page 810, in which Madam Justice McLaughlin said: 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 a consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice. Mr.

Justice Cromwell goes on and states the following: Of course there is a strong societal interest in having serious charges tried on their merits; however, the progress of this case was delayed to such a degree that the appellant's constitutional right to be tried within a reasonable time was violated. ( R. v. Godin , supra , para. 41 ) [ 63 ] A delay within the timeframes in issue in this case may not, in other circumstances, attract the same conclusions and outcome.

In this case, however, I conclude that the balance of interests has resulted in a breach of M.C.E.'s right to be tried within a reasonable time and a judicial stay of proceedings is appropriate, and I enter that stay now. (RULING CONCLUDED)