R. v. Jordan-Knoxx Date:, 2012 BCPC 365

Citation: R. v. Jordan-Knoxx Date: 20120913 2012 BCPC 0365 File No: 187208-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASMINE ANGELA JORDAN-KNOX RULING ON APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS OF THE HONOURABLE JUDGE K.W. BALL Counsel for the Crown: M. Fortino Counsel for the Defendant: M. Foster, V. Aldosky Place of Hearing: Surrey , B.C. Date of Hearing: August 31, 2012 Date of Judgment: September 13, 2012

[1] THE COURT: These are oral reasons on an application by the accused. INTRODUCTION [2] The accused applied, through counsel, for a judicial stay of proceedings based on alleged excessive delay and breach of s. 11(b)of the Charter of Rights and Freedoms. In the reasons given by the Honourable Chief Justice McLachlin in R. v.

Morin, (SCC), 1992 SCJ 25 the following appears: The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing thatpersons charged with offences are brought to trial against the accused's interest in prompt adjudication. [3] For the following reasons, I dismiss the application.

FACTS [4] The factual matrix was provided by submissions of counsel and two affidavits filed by the defence for this application. [5] The accused was involved in a single-vehicle accident where the vehicle driven by the accused left the road, and afterbreaching a barrier, caused property damage, including bringing down a power line. The accused was injured and taken to hospital. Ablood demand was made to the accused. The accused was found, after blood analysis was conducted by an expert, to have blood alcoholcontent between 259 and 293 millilitres of alcohol in 100 litres of blood.

Hospital records seized also confirmed the blood alcoholevidence of the expert. [6] Crown counsel submitted that the trial of this case, set for two days, was a more complex case as evidence would be calledfrom an expert in addition to nine other witnesses for the Crown. The accused was charged with impaired driving, driving with bloodalcohol over .08, and dangerous driving, all contrary to the Criminal Code. THE TIMELINE [7] October 30th, 2010 was the date of the accident. The accused was released from police custody without process. On February11th, 2012, Information 187208 was sworn with a summons to issue.

April 1st, 2011 was the first appearance in courtroom 100 bycounsel for the accused, with particulars provided. April 15th, 2011 was the second appearance in courtroom 100 by counsel for theaccused, with further particulars provided. April 29th, 2011 was the third appearance in courtroom 100. On May 27th, 2011 the fourthappearance in courtroom 100, the case was arraigned and set for a two-day trial scheduled for September 24th and 25th of 2012.

Thetrial date was set in "the usual course" by the judicial case manager, who first offered the dates of August 30th and 31st, 2012 as trialdates. [8] By letter dated May 30th, 2012, Crown counsel wrote to defence counsel seeking admissions on the alcohol expert report. OnJuly 11th, 2012, Crown counsel wrote a second letter to defence counsel seeking admissions of the alcohol expert report and givingnotice of intention to seek the admission of hospital records pursuant to s. 30 of the Canada Evidence Act.

On July 30th, 2012, defencecounsel wrote to Crown counsel and advised that there will be no admissions with respect to the blood alcohol expert report, and a copyof the s. 11(

b) application was attached to the letter of defence counsel. [9] On August 3rd, 2012, there was a trial confirmation hearing date. Defence counsel applied to adjourn the trial confirmation toAugust 31st, 2012; on behalf of the Crown, trial dates were confirmed. August 31st, 2012 was the application date for the hearing of thepresent motion. THE LAW [10] R. v. Morin, (SCC), 1992 SCJ No. 25 is the leading case in Canada which interprets s. 11(

b) of the Charter ofRights and Freedoms, in particular the right of the accused to be tried within a reasonable time. At Paragraph 31, in the reasons for themajority, the following instructive passage appears: The Approach to Unreasonable Delay - The Factors The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused,

(

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32. [32] The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of theother factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion,account must be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period tobe scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, (SCC), [1989] 1S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then bedetermined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay andthe prejudice to the accused. [33] The role of the burden of proof in this balancing process was set out in the unanimous judgment of this Court in Smith, supra, at pp.1132-33, as follows: I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden ofproof if the court cannot come to a determinate conclusion on the facts presented to it.

Although the accused may have the ultimate orlegal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of eachcase. For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for anexplanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitledto infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under thesecircumstances.

In all cases, the court should be mindful that it is seldom necessary or desirable to decide this question on the basis ofburden of proof and that it is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors referred toabove. I do not read the Askov decision as having departed from this statement although portions of the reasons of Cory J. emphasized certainaspects of the evidentiary burden on the Crown. [34] A definition of each of these factors and their interaction follows.

I will deal with them in the order that they should be consideredby a trial court. [11] The length of delay in this case is 19.5 months from the date the Information was sworn to the presently scheduled trial date. That period is sufficient to warrant an inquiry by the court into the reasonableness of the delay. There has been no waiver by the accusedof any Charter right and no conduct by the Crown which has contributed to the delay. [12] The court is obliged to consider the reasons for delay.

Inherent time requirements include complexity of the trial; the morecomplex the trial the more time is required for counsel to prepare for trial. The case at bar is not like the case in R. v. Morin, op. cit.,which is described as "neither complicated nor in dispute" as it was based on the observations of a single police officer witness and thecertificate of a qualified breath technician which comprised the entirety of the evidence in R. v. Morin. [13] The case at bar is scheduled for two days.

Nine Crown witnesses will be called, at least one of whom is an expert about whoseevidence the defence was not prepared to make an admission. Defence is not obliged to make admissions about any witness, and noinference can be drawn from a failure to make admissions. I simply note this matter because of the expected duration and complexity ofthe trial that the evidence of multiple witnesses, including an expert witness, may add. The inherent time requirements for the case at barwould therefore be greater than those in the case of R. v. Morin. At paragraph 41 of R. v.

Morin, the following appears: Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their timeexclusively to one case. [14] Likewise, it is well known that counsel have their calendars already booked into the future when a new retainer is accepted. Tothe extent possible, prior court bookings by counsel are taken into account when new files are booked into the court schedule. In thepresent case, according to the affidavit of Vicky Williams, barrister and solicitor, sworn the 30th day of August 2012, filed in support ofthe application, Ms.

Williams exhibits a list of dates said to reflect the availability of Mr. Foster for new court bookings. The earliestdates offered in that list were November 3, 8, 16, 17 and 18 of 2011. The first trial dates offered by the judicial case manager wereAugust 30th and 31st, 2012. Mr. Foster takes his holidays, on an annual basis, in August, and so the dates in August which had beenoffered were not acceptable to him. The judicial case manager then offered the current trial dates, September 24th and 25th, 2012, whichwere acceptable to counsel. [15] The list of available dates of Mr.

Foster, attached to the affidavit of Ms. Williams, is, according to R. v. Lahiry 2012 OJ No.5071 "A correct and necessary approach to the calculation of institutional delay." [16] In Lahiry, the trial judge ordered defence counsel to produce a letter of instructions to its agent setting out the earliest dates thatcounsel was proposing to commence the trial. After considering a number of authorities, the Honourable Mr. Justice Code, the trialjudge in that case, concluded:

[30] Most recently, in R. v. Khan (2011), 2011 ONCA 173 , 270 C.C.C. (3d) 1 at paras. 32-36 (Ont. C.A.), KarakatsanisJ.A. (as she then was) gave the judgment of the Court. In that case, the entire period from setting a date until the preliminary inquiry waseight months and twenty days.

The Court inferred from the record that “the parties were not ready to proceed with a preliminary inquirywhen the date was first set.” Accordingly, the first five months and ten days of this period was treated as “due to the inherent timerequirements of the case.” Only the last three months and ten days of the entire period was characterized as institutional delay. [31] I appreciate that there has been some uncertainty in the trial courts on this point. In addition, set date courts do notconsistently insist that counsel state their earliest available dates for trial on the record.

Furthermore, in routine drinking and drivingcases, the amount of time needed to prepare for a short trial is not great. Counsel for the Respondents on these appeals submitted that apractice has arisen in busy Ontario Court of Justice set date courts whereby counsel do not state their earliest available dates for trial onthe record and they are simply deemed to be immediately available on that set date appearance. [32] I cannot accept this submission for a number of reasons. First of all, the line of binding authority on this point, set out above,is now formidable.

Counsel’s submission effectively invites me to ignore all these authorities. This is obviously not an option. [33] Second, I do not accept the assertion that there is a practice of not stating counsel’s earliest availability on the record. I haveseen many s. 11(

b) Motion records in the last twenty-five years, both as counsel and as a judge, and in the most persuasive recordscounsel are frank and forthright and they state when they are available. As officers of the Court, counsel have always acted withintegrity, in my experience, in stating when they are actually ready and available to conduct the trial. It would be a very serious violationof counsel’s ethical duties if the Court was ever misled on this point. [34] Finally there is no place for fictions when seeking to prove Charter violations.

It is rarely true that counsel is immediatelyavailable for trial, when setting a date. Whenever counsel take on a new case they complete various preliminary steps during the intakeperiod. Once they have taken these steps and are ready to set a date for trial, they need to set aside sufficient time in their calendars toprepare the new case for trial and to then conduct the trial. If the case is lengthy and complex, or if counsel are very busy, it may besome considerable period of time before counsel are ready for trial.

To use a simple hypothetical, if counsel has no time in his/hercalendar to prepare a new case for trial and to then try it until ten months in the future, and the earliest date that the Court has availablefor the trial is twelve months in the future, then systemic congestion in the Court is the cause of only two months of delay. The other tenmonths is delay that the accused needs, for entirely beneficial reasons, in order to allow his/her counsel of choice to prepare the case fortrial and to accommodate it in an otherwise busy calendar.

It is good and necessary delay that would have occurred in any event, even ifthe Court had earlier available dates. It is a fiction to characterize this kind of useful delay as unwarranted or unreasonable or prejudicial. [17] The decision in Lahiry has been cited with approval and followed in two subsequent cases in the Ontario Court of Appeal, R. v.Tran, 2010 OJ No. 83 at paragraph 30, and R. v.

Steele, 2012 ONCA 383 , 2012 OJ No.2545 at paragraph 19, both decisions ofthe Ontario Court of Appeal which stand for the proposition that "institutional delay begins to run only when counsel are ready toproceed but the court is unable to accommodate them." It is noted in Tran that "it is an error by a trial judge to fail to take into accountthe time required to clear the calendar and prepare for trial." R. v. Tran has also been cited and followed with approval by at least twodecisions in the Supreme Court of British Columbia, R. v. Hagloff, 2012 BCJ No. 613 and R. v. LePage, 2012 BCJ No. 1383.

The courtfinds the reasoning set forth in the cases cited above compelling and intends to follow that reasoning. [18] Applying the inherent time requirements to the case at bar, the period from the laying of the Information until the arraignmentwhen the trial date was set (the intake period) took from February 11th to May 27th of 2011, a period of 16 weeks, or four months,roughly. That time is neutral and not institutional delay.

Thereafter, counsel was not available to conduct a two-day trial until, at theearliest, November of 2011 and that period is therefore not institutional delay but is considered neutral time. [19] The delay from November 11th, 2011 to August 30th, 2012 the first date offered by the judicial case manager, is ten months.The ultimate trial date was a month later. [20] Consistent with the authorities cited, I determine that the institutional delay in this case is ten months. An institutional delay often months, for a matter as factually complex as this case, is well within the parameters for delay set out in R. v.

Morin, op. cit. As aresult, no prima facia case of unreasonable delay has been made out on the facts, particularly in a court registry as busy as that of Surrey,British Columbia. [21] The accused also raised the issue of prejudice. While she has asserted some anxiety and worry caused by this case hanging overher head, she has not sought medical attention. Some anxiety is no doubt experienced by many persons charged with serious criminaloffences, and no aspect of anxiety alleged by this accused has taken this case out of the ordinary.

The accused, at the time of the offencealleged against her, had a job which required her to drive to client locations to show clients samples of the goods being sold. She alsohad to transport her children to school and is concerned about their participation in team sports if she is unable to drive.

Although shechanged employers twice since the date of the offence charged, she continues to work in a job where she requires a driver's licence tocontact clients. [22] The loss of a driver's licence for a minimum of one year is a mandatory element of the sentence which must be imposed on anyperson convicted of an offence under s. 253 of the Criminal Code. That feature does not arise as a result of any delay, and has not beenchanged by the delay which this case has experienced. [23] In the affidavit filed by the accused, she asserted that, "I drive both kids to school every day.

There is no school bus or alternatetransportation available to them." In the evidence she gave, she seemed to contradict the above assertion when she stated that herhusband drove the children to school when he had custody of the children pursuant to a shared parenting arrangement. Why it was thatthe husband could not take a role in providing the children access to sports teams was never explained. Further, Ms. Jordan-Knoxtestified that the children were presently not engaged in team sports so the subject of access to team sports was speculative at the time ofthe hearing.

[ 24 ] Another inherent conflict arose during the course of the testimony of the accused as she asserted first the need to drive her children to school on a daily basis, while at the same time asserting she was seeking employment which required her to travel within Canada and the United States and to drive motor vehicles in both countries. Such employment would necessitate making other arrangements for transportation of the children.

This apparent conflict remains unresolved. [ 25 ] The court has not made any finding of credibility with respect to the conflicts I have pointed out above as it would not be appropriate to do so at this stage of the proceedings. [ 26 ] Based on my review of the contents of the affidavit of the accused filed herein, and the testimony I heard her give, I cannot conclude that the accused has satisfied the onus which rests on her demonstrate prejudice. I do not infer prejudice on the facts that are discussed above. [ 27 ] Mr. Foster for the accused presented an array of cases decided by other judges in this court.

All of the cases presented concluded with a stay of proceedings being granted, and Mr. Foster submitted that I should follow these cases and the trend they established of staying other cases, and I should follow those cases based on judicial comity. Each of these cases is a fact-based case, and none of the cited cases has the same fact pattern as the case at bar. There are also in this court a number of other cases where judicial stays of proceedings have not been granted by members of this bench. Judicial comity would not be a basis to follow the cases cited by Mr. Foster. [ 28 ] None of the cases cited by Mr.

Foster considered R. v. Lahiry, or the cases which have followed R. v. Lahiry which are noted above. I do not intend any criticism of the decisions in Mr. Foster's brief as all of the cases therein predated the considerations contained in R. v. Lahiry, in R. v. Tran, R. v. Steele , and in the two cases cited in the Supreme Court of British Columbia. [ 29 ] In

summary then, I find the institutional delay in this case is within the parameters set forth in R. v. Morin , and the onus to prove prejudice by the accused has not been met in this case. [ 30 ] The application for relief under s. 11(

b) of the Charter of Rights and Freedoms is dismissed. (RULING CONCLUDED)