R. v. Khangura Date:, 2012 BCPC 189

Citation: R. v. Khangura Date: 20120313 2012 BCPC 0189 File No: 185883-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SANDIPAL SINGH KHANGURA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. B. HICKS Counsel for the Crown: A. Ip Counsel for the Defendant: J. Whysall Place of Hearing: Surrey , B.C. Date of Hearing: March 12, 2012 Date of Judgment: March 13, 2012

[1] THE COURT: Sandipal Singh Khangura is charged with offences unders. 253(1)(

a) and 253(1)(

b) of the Criminal Code, commonly referred to as impaired driving and driving with over 80 milligrams ofalcohol in 100 millilitres of blood. The events leading to the charges arose on August 29, 2010. [2] Mr. Khangura says his right to be tried within a reasonable time under s. 11(

b) of the Charter has been violated. He seeks ajudicial stay of these proceedings. He has filed an affidavit in support of his application. The Crown is opposed to the application. [3] The relevant timeframes are as follows: On August 29, 2010, following the completion of the investigation, Mr. Khangurawas given a Promise to Appear in Court on December 15th, 2010, about three-and-a-half months into the future. Mr. Khangura retainedcounsel, Mr. Whysall, on September 8th of 2010. On September 9, 2010, Mr. Whysall wrote to Crown counsel seeking disclosure. TheInformation was sworn on December 9th of 2010.

A representative from Mr. Whysall's office attended court for Mr. Khangura onDecember 15th, 2010, and requested the particulars. Those particulars were not ready. The matter was adjourned to December 22nd of2010. In the meantime, the particulars were prepared and provided on that next court date. [4] On January 12th of 2011, the next appearance date, the matter was arraigned and a one-day trial was set for March14th,2012. This was the first date available to the court.

That trial date is 18-and-a-half months after the alleged offence, 15 months after theInformation was sworn, and about 14 months following the arraignment and trial setting appearance. [5] This application was heard by me, as the assigned trial judge, on March the 12th of 2012. Both parties made extensivearguments and provided books of case authorities.

With the trial imminent, I undertook to review the matter overnight and provide thesereasons today so as to ensure the trial date is not lost if the application is denied, or to permit time for the Crown to inform witnesses ifthe application succeeds. [6] Bearing in mind the narrow timeframe, I intend to outline the guiding principles which govern these applications using asummary I included in my decision in a case called R. v.

Snelgrove on January 5th of this year, and in particular, paragraphs 5 and 6 ofthat decision which are as follows: The leading authority on applications of this sort is the Supreme Court of Canada decision in R. v. Morin, (SCC), [1992]1 SCR 771. In that decision the Supreme Court of Canada said that applications of this kind must be evaluated in the context of theinterests the right to a trial within a reasonable time is designed to protect. In respect of an accused person, there are three interests.

First, the right to security of the person, which seeks to minimize the anxiety, concern and stigma of exposure to criminal proceedings;second, the right to liberty, which seeks to minimize exposure to pretrial incarceration or restrictive bail conditions; and third, the right toa fair trial, which focuses on attempting to ensure proceedings occur while evidence is available and fresh.

The Supreme Court ofCanada recognized that the community at large has an interest in seeing this right protected, but also the community is interested in whatmay at times be a competing interest to see serious criminal matters resolved on their merits at trial. In assessing these interests todetermine if delay is unreasonable, the court is to consider the following factors: first, the length of the delay; second, the waiver of timeperiods; third, reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of theCrown, (

d) limits on institutional resources, and (

e) other reasons for delay. The fourth factor is prejudice to the accused. Pre-charge delay is generally not relevant. The courts have said that it is from the point the charge is laid, that is the date theInformation is sworn, until the date the matter would conclude that is to be assessed. The courts have also made clear that thisassessment is not to be determined on the basis of a mathematical formula. Each case must be assessed on its particular facts against theinterests and factors noted previously.

The Supreme Court of Canada goes so far as to say that it is reasonable to expect charges in theProvincial Court like those … In this case, Mr. Khangura faces: … will be brought to trial in an eight to ten-month period. This timeframe is provided, however, only as a general guidance. It does notdictate a conclusion that a date beyond that period will automatically be unreasonable and a stay must follow. The factors must beevaluated in each case and assessed against the interests at play.

Further, it must be borne in mind that superior courts have made clearthat a judicial stay of proceedings is an extraordinary remedy to be granted in the clearest of cases. Not every delay will justify thegranting of that extraordinary remedy and not every head of prejudice identified on the evidence will justify the granting of that remedy. (R. v. Snelgrove, 2012 BCPC 21 , 2012 BCPC 0021) [7] Mr.

Whysall has argued, in the circumstances of this case, that pre-charge conduct by the Crown, and here by "Crown" Irefer to the police investigating agency as well, must be considered in assessing whether overall delay is unreasonable. In R. v.

Morin atparagraph 35, the Supreme Court of Canada stated: Pre-charge delay may, in certain circumstances, have an influence on the overall determination as to whether post-charge delay isunreasonable, but of itself is not counted in determining the length of the delay. [8] In the present case, the overall period of delay from charge to trial date, a period of 15 months, is sufficiently beyond theguideline period that an inquiry into the circumstances is justified. The parties are agreed that Mr. Khangura has not waived any timeperiod nor conducted himself in any way suggesting he seeks to delay the trial.

Indeed, the evidence is to the contrary.

He retainedcounsel forthwith following the investigation, his counsel immediately wrote to the Crown seeking disclosure, and counsel actedexpeditiously once the Crown particulars were in hand to take instructions and reserve the first available trial date. [9] In assessing the reasons for the delay in this case, I am asked by the applicant to consider that this is a straightforwardinvestigation which was essentially complete on the day or within a day or two of the alleged event on August 29, 2010, and yet Mr.Khangura was given a Promise to Appear setting December 15th as his first appearance. [10] The defence says there is no reason in this straightforward set of circumstances for a first appearance date three-and-a-half

months off. The defence says that a first appearance date on a charge like this should be in or around six weeks to two months and Ishould add something in the range of a month-and-a-half to the overall period of delay.

The defence says that a period of three-and-a-half months to reach the charging point on a case like this must reflect the implications of inadequate Crown resources to address thesecharging responsibilities. [11] The Supreme Court of Canada has made clear, in my view, that the time period of pre-charge delay is not to be added to theoverall period of delay under consideration, but as noted earlier it may, in appropriate circumstances, become a factor to consider inassessing whether the delay period under review is reasonable. [12] The defence also draws to my attention the fact that the particulars were not available on the first appearance date despite theletter from Mr.

Whysall on September 9th of 2010, and the three-and-a-half-month period following the offence date until the firstappearance. [13] The reason for the long pre-charge period and for the absence of particulars on December 15, 2010, is unexplained. That timeappears, in my view, to be too long.

On the other hand, I note that no issue was taken with that date specifically; nevertheless, in myview there is a reasonable expectation to be placed on the charging authorities in these relatively common and straightforwardinvestigations to take steps to bring the accused before the court expeditiously, and to have a process in place to deliver basic disclosureat the first opportunity.

Although the Crown has the benefit of a limitation period which was still some time off, the defence had madeclear by letter at an early stage a desire to move expeditiously, and this was, frankly, ignored in this case. [14] In my view, this is one of those cases in which these pre-charge considerations should be factors to be taken into account inassessing overall delay, and particularly so here where Mr.

Khangura has provided evidence about his distress over the long time periodsinvolved in bringing the matter to a conclusion, and his rapid move to engage counsel. [15] The one-month period from charge to arraignment is well within the usual expectation and reflects Mr. Khangura's desire tosee the matter move expeditiously.

The period of just over 14 months to the trial date reflects the period during which institutionalresources were not available to address a relatively straightforward charge which is common in these courts. [16] Judges in this courthouse and elsewhere in the province in other cases have commented on the reduced numbers of judgesavailable and the reduced resources in other areas of the criminal justice process which have led to the increase in this period ofinstitutional delay to the point that a case such as this one must wait 14 months for a trial date.

I have in mind decisions such as R. v.Moskal, 2010 BCPC 294 , [2010] BCJ No. 2308, which is a decision of Judge Gulbransen in 2010, and more recently, R. v.Pridy (Nov. 21, 2011 Surrey Registry No. 180968-1) which is a decision of the Associate Chief Judge, Judge Gill. Those pressures arealso referred to in decisions such as R. v. Vinet (Feb. 23, 2011 Registry No. 174769-1), a decision of Judge Jardine, and R. v. Kelly (Jan.25, 2012 Surrey Registry No. 182992-1), a decision of Judge Harris. It remains to be seen whether recent appointments to the court willhave an impact on institutional delay in Surrey.

This case, however, must be addressed without the potential benefit which may flowfrom those new resources. [17] Courts have recognized that government resources are not infinite and other demands press on government budgets. There isa point at which the court cannot, however, tolerate inordinate delay due to inadequate resources, and that point has been made a numberof times, including by the Supreme Court of Canada. That court has also pointed out in R. v.

Morin that courts such as this one mustcontinue to assess each individual case on its facts and apply the factors and balance the interests based on those individualcircumstances. It is because each case requires this individual assessment that judicial stays of proceedings have been granted andrefused, despite very similar periods of delay. Judge Rounthwaite of this court pointed out in a decision called R. v. Stavast in 2011 thenumber of cases of institutional delay and Crown-related delay ranging in the 13- to 19-month range in which outcomes have gone bothways. (R. v.

Stavast 2011 BCPC 1281) [18] The fourth fact to assess in the analysis is prejudice. The Supreme Court of Canada has said that where prejudice is notinferred or otherwise proven, the basis for the enforcement of this Charter right is seriously undermined. Mr. Khangura says he hassuffered prejudice as a result of this delay. He alleges actual prejudice has occurred, as set out in his affidavit. He also says that I shouldinfer prejudice. He relies on cases such as R. v. Vinet and R. v. Kelly which I referred to a moment ago, and R. v.

Sinelnic, 2011 BCPC46, a decision of Judge Raven. [19] The Supreme Court of Canada has said that the longer the period of delay, the more likely an inference of prejudice will bedrawn. In assessing prejudice, the court must consider whether it arises from the delay and not solely from the charge itself, and whetherand to what extent it impacts one of the interests earlier referred to which the Charter right aims to protect. The court must then assessthat prejudice and its significance against the societal interest in seeing offences of this nature proceed to trial on their merits.

Not everyprejudice found to impact a Charter-protected interest will be so compelling as to require proceedings be stayed by the court. [20] Mr. Khangura does not assert prejudice to either his liberty interest or his fair trial interest; he focuses his argument on hisinterest in security of the person which seeks to minimize anxiety, concern, and the stigma of exposure to criminal charges. [21] I have determined, after considering the circumstances and context here, that I would not infer prejudice in respect to thismatter. Now I will address actual prejudice. [22] In his affidavit, Mr.

Khangura asserts that he has suffered continued stress and anxiety as a result of these charges hangingover him. He refers to the stigma and embarrassment flowing from the charges which have been prolonged now virtually to the trialdate. He asserts this has manifested itself in insomnia and hair loss. He also says that he has suffered a recurrence of pain shootingdown his arm which had subsided prior to the charges arising, and he ascribes this to the stresses of this ongoing matter.

He refers tocontinuing feelings of despondency and social withdrawal. [23] In defining the security of the person interest, the Supreme Court of Canada clearly has in mind that most people facingcriminal proceedings will experience anxieties and suffer stress. This interest is focused not on eliminating but on minimizing thosestresses. Where inordinate delay occurs, it is the prolonging and accentuating of those stresses and anxieties which might compel a court

to stay proceedings. [ 24 ] Here, on the one hand the Crown says there are no medical reports to suggest the assertion that hair loss, insomnia and recurring pain are related to the stress of the proceedings; on the other hand, Mr. Khangura has asserted that these have occurred, he has done so under oath, and he has asserted that these afflictions and struggles have occurred in a timeframe consistent with the outstanding charges. He has not been cross-examined on those assertions and his assertions are therefore essentially unchallenged.

Ideally, a medical report supporting the connection to stress from the charges would be helpful, but in the absence of a challenge to his assertion there is some evidence on the basis of which I could find that he has suffered these symptoms associated with these proceedings. It is not unusual that people will suffer some stress and even see it manifested in particular ways which may vary from person to person.

It is not the fact of these stresses and symptoms occurring, but their prolongation by reason of delay that must be established by the applicant. [ 25 ] In the particular circumstances here, I am satisfied Mr. Khangura has established a degree of stress and anxiety arising from the charges against him, and that he has exhibited a determination to address the charges through the court process as quickly as possible. In determining that Mr.

Khangura has demonstrated actual prejudice, I consider as a relevant factor the intake period of three- and-a-half months pre-charge which, in my view, is excessive in a case like this in the absence of any explanation. [ 26 ] Mr. Khangura asserts that he has delayed proposing marriage because the charges remain outstanding. Although there may perhaps be some delay attributable to the fact this trial did not occur in, say, 12 months, the difference is a matter of two to four months.

Perhaps there might be a loss of motivation to focus on marriage plans while this charge is outstanding, but on this issue the timeframe seems relatively minimal. In any event, there is no real explanation as to why Mr. Khangura could not go ahead and make marriage plans beyond March 14th of 2012. I would not find prejudice established in respect of this issue. [ 27 ] Mr. Khangura asserts that he is employed in a stressful job and that he has been distracted in his work which has resulted in poor work performance.

Again, it is difficult to determine to what extent this arose from the fact he was charged and to what extent it continues beyond a notional reasonable trial date. His employer has known of the charges from an early date, he continues to be employed there. There is no indication how often these concerns have arisen. There is no evidence that he has been reprimanded or threatened with dismissal. There may be some factoring of this work-related situation into his overall stress level and its prolongation, but it is not, in and of itself, in my view a substantially-established head of prejudice. [ 28 ] Mr.

Khangura asserts that he chose not to apply for a higher-paying job with Canada Border Services. Once again, I am unable to assess when the job arose, whether that occurred before or beyond what would be a notionally reasonable trial date. Further, it is speculative to say Mr. Khangura would have been successful in that job application, or not, depending on the outstanding charge. [ 29 ] Having considered these various heads of prejudice, I have determined, as I indicated a moment ago, that Mr.

Khangura has established that the prolonging of this matter by almost four to five months beyond the guideline timeframe established by the Supreme Court of Canada, bearing in mind his determination to address the matters and the steps that he has taken to move expeditiously, has resulted in prejudice to that interest which s. 11(

b) seeks to minimize, being the exposure to stress and anxiety. It will not be every 14- or 15-month delay which will lead to such a finding. Here the evidence, unchallenged in his affidavit, establishes the evidentiary foundation, and that situation is understood better in Mr. Khangura's specific case by the unexplained pre-charge delay period and the evidence which supports his determination at an early stage to bring this matter forward as quickly as he could. [ 30 ] In my view, this is prejudice of a substantial nature, and a remedy is appropriate. There will be, in this case, a judicial stay of proceedings. (RULING CONCLUDED)