R. v. Garcha Date:, 2012 BCPC 524

Citation: R. v. Garcha Date: 20121219 2012 BCPC 0524 File No: 185687-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KULBINDER GARCHA RULING ON APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS OF THE HONOURABLE MR. JUSTICE BALL (Sitting as a Judge of the Provincial Court of British Columbia) Counsel for the Crown: A. Lee Counsel for the Defendant: V. Michaels Place of Hearing: Surrey , B.C. Date of Hearing: September 7, 2012 Date of Judgment: December 19, 2012 [ 1 ] THE COURT : These are oral reasons in relation to an application for a stay of proceedings pursuant to s. 11(

b) of the Charter

[ 1 ] THE COURT : These are oral reasons in relation to an application for a stay of proceedings pursuant to s. 11(

b) of the Charter of Rights and Freedoms . [ 2 ] This application originally came on in September of this year, but was delayed in part because I raised with counsel the apparent requirements placed on these applications by the courts of Ontario in the case of R. v. Lahiry. As a result, Mr. Michaels added some material concerning his scheduling, which has been very helpful in this decision. [ 3 ] Counsel are agreed in this particular case the charge as originally laid involved the failure to accompany an officer for the purposes of an approved screening device roadside test.

The time from the date the charge was laid and in this case being the date of the first appearance was just shy of 22 months. Mr. Sandhu for the Crown, in his affidavit, fixed the delay at 21 months and 28 days. We can call it 22 months.

The parties are also agreed that from arraignment to the trial date was a period of over 14 months. [ 4 ] There were some delays in the intake period, that is the difference between the 22 and the 14, and I have not tried to do the math precisely, but the delays there were caused in part by an unexplained failure by the police to provide the Crown with the audio and video recordings, which would have been the bulk of the evidence in this case. The recordings were certainly the best evidence of what occurred.

There was also a change of counsel, not through any act of any of the parties, rather the desire of a long experienced counsel to retire. [ 5 ] The results of all of that is that when the case came to Mr. Michaels' hands, the Information did not comply with the evidence; in other words, the particulars provided did not comply with the evidence. As I required Mr. Michaels to provide us with details from his calendar, he was very candid and said in normal circumstances there would be a delay of eight to ten months to set a trial. He had a particular office procedure for setting dates.

But in this case, absolutely no preparation was necessary because he could have simply sat, listened to the Crown witnesses testify and get up and seek and likely be granted a dismissal. The trial would not take very long at all in those circumstances. I think I would be speculating if I was to go the other way and say, well, Crown counsel would have found out that they had a problem and done something about it. Ultimately they did in this case, but whether that would have occurred before the first available date on Mr.

Michaels' calendar, which was very early, is both doubtful and speculative. [ 6 ] There is a delay here, and I do not think it is necessary in this case for me to attribute the delays in that intake period to one party or another. I think this case is determined on a delay which exceeds the period that has been set out by the Supreme Court of Canada, and in particular, the unique feature of this case rests on the issue of prejudice. [ 7 ] It is clear and I believe the only inference that can be fairly drawn was that Mr. Garcha wanted this matter resolved at an early date from the onset.

He encouraged his counsel to get a trial date set. He did not appreciate that the arraignment discussion process ended with the setting of a trial date. That is clearly the case, not that discussions cannot take place following arraignment, but they do not take place with the arraignment team thereafter. [ 8 ] In any event, Mr. Garcha tolerated the date setting, had to get a new counsel, and as matters wore on, the weight on him became too much. His life was coming apart at the seams. He was not able to practice law with the confidence that he had had previously.

He felt unable to travel to the United States freely because of his involvement with the criminal courts in British Columbia, a part of his practice being in the United States. He was having grave difficulties with his own family and estrangement from members of his family. [ 9 ] He eventually came to the conclusion that he could not do this alone and sought medical assistance from his family doctor originally and was given medical prescriptions, one of which at least had significant side-effects for him.

While the medication reduced his sense of worry and anxiety, it was as though he was living life with the brakes on, and excuse me for taking all the fancy medical language and putting it in such simple terms, but I think that is how he seemed to express things. The medications that he was prescribed were so debilitating he had to stop taking them in order to continue what he was doing in terms of practice. [ 10 ] As a result of the inability to find a positive solution, his doctor referred him to a psychologist.

He has been meeting with that psychologist since that referral in early June of 2012. [ 11 ] I have related some of the matters which are set out in his affidavit and were set out in his evidence and I rely on them all in making this statement: I am satisfied that Mr. Garcha has certainly to a level I have not seen before in dealing with these applications demonstrated a high level of prejudice, as that word is used and defined in R. v.

Morin , a case that both counsel have referred to. [ 12 ] That being said, the delay here is longer than it ought to have been, and in the particular and unique circumstances of Mr. Garcha and his unique personality makeup, I am satisfied that he has demonstrated a prejudice of the sort anticipated by the cases. In particular, I am relying on the decision of the Honourable Judge Hicks of this court in the case of R. v. Khangura

(2012) BCJ. No. 1285 , where the delay is very similar to this case and the court there found prejudice. The prejudice demonstrated by Mr. Garcha in my view is at a much higher level than the prejudice accepted by Judge Hicks in the Khangura case. [ 13 ] In all of the circumstances, therefore, I am satisfied that as actual prejudice has been demonstrated on the evidence which I heard, and which I accept that, this is a case which exceeds the acceptable delay.

I am well aware that the courts of Surrey have been very busy places, and I note Judge Hicks' comments particularly at paragraphs 16 and 17 of his judgment, but that said, the delay here is in my view the factor which led Mr. Garcha to the level of stress and anxiety that he was suffering.

It was not simply the charge, it was not simply the fact that the Law Society was also looking at it, but that it was the delay here that caused the prejudice to go to an unresolveable level. [ 14 ] As a result of all of those comments, I am satisfied this is an appropriate case for a stay of proceedings, and I make that order under 11(

b) of the Charter . (RULING CONCLUDED)