R. v. Seabrook Date:, 2012 BCPC 419

Citation: R. v. Seabrook Date: 20121004 2012 BCPC 0419 File No: 187466-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH MARK SEABROOK RULING ON APPLICATION OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: M. Vojvodic Counsel for the Defendant: B. Jessop Place of Hearing: Surrey , B.C. Date of Hearing: October 1, 2012 Date of Judgment: October 4, 2012

[1] THE COURT: Kenneth Seabrook is charged with impaired driving, contrary to s. 253(1)(

a) of the Criminal Code, and refusingto provide a breath sample to a qualified technician, contrary to s. 254(5) of the Criminal Code. [2] The events occurred on January 23rd, 2011. Mr. Seabrook's trial is set for October 15th and 16th, 2012. He says his right tobe tried within a reasonable time as provided by s. 11(

b) of the Charter of Rights has been violated. He seeks a judicial stay ofproceedings pursuant to s. 24(1) of the Charter. [3] Applications of this type are to be evaluated in light of the interests the right to trial within a reasonable time is intended toprotect.

Those are the accused's interest in security of his person which seeks to minimize anxiety, concern and stigma arising fromexposure to criminal charges; second, the liberty interest of the accused, which is not engaged in this case; and third, the accused person'sfair trial rights which focus on the concern that proceedings occur when evidence is available and fresh.

The community is alsointerested to see the Charter rights of accused persons are protected, and there is a parallel interest which the community has to seeserious criminal matters resolved on their merits at trial. [4] In assessing these interests, the court is to consider the following factors: First, the length of delay; second, waiver of timeperiods; third, reasons for the delay including inherent time requirements of the case, the actions of the accused, the actions of theCrown, limits on institutional resources, and other reasons for the delay.

There is a fourth factor to consider which is prejudice to theaccused. [5] Pre-charge delay is generally not relevant, and is not relevant here. The time period in issue commences with the laying of thecharge and extends to the point the matter would conclude. The assessment is not resolved by the simple application of a mathematicalformula.

Each case requires a weighing of each interest and factor against the particular facts of each case, thus a particular period ofdelay may be unreasonable in one case but not in another. [6] The Supreme Court of Canada has said that relatively straightforward matters in the Provincial Court should be brought to trialin an eight-to-ten-month timeframe. This is a guideline, however. Generally speaking, a period of delay much beyond this timeframewill call for inquiry to determine whether or not it is reasonable.

The court must also bear in mind that a judicial stay of proceedings isan extraordinary remedy and is available only in the clearest of cases. Further, not every delay beyond the guideline period will generateprejudice of a magnitude or on a scale which justifies that remedy. [7] On January 23rd of 2011, following the events during which the Crown alleges the offence occurred, the accused, Mr.Seabrook, was released on a Promise to Appear returnable March 25th of 2011. On March 4th of 2011 the Information was sworn. Mr.Seabrook appeared on March 25th, 2011, as required, and was adjourned to April 1st of 2011.

On April 20th of 2011 he retained Mr.Jessop as counsel. At his next appearance on April 29th, he was represented by counsel, and on the next appearance, May 13th of 2011,the matter was arraigned and the trial dates, October 15th and 16th, 2012, were fixed. These were the first dates the court had availablefor a two-day trial. [8] In his affidavit, Mr. Seabrook stated he instructed his counsel to set the earliest dates available.

On July 13th of 2011, Mr.Jessop wrote to the Crown to say he could accommodate earlier dates if any became available, although I note he did not propose anyparticular dates which could then be assessed against court availability. A more effective approach, in my view, would be to call thecase ahead in the courtroom and ask to have possible new dates canvassed through the case manager's office as is the procedure here inthis courthouse for the fixing of dates. [9] The time period between the swearing of the Information and arraignment in this case is just over two months.

That timeperiod is not excessive or particularly unusual. Although I note that nearly one month passed from first appearance to retention of Mr.Jessop, the matter moved readily thereafter to the fixing of trial dates. This period then is the inherent time requirement for a case of thissort, and generally consistent with inherent time requirements for cases of this type in this courthouse. [10] The trial dates were set 17 months beyond the arraignment date. That is the period of institutional delay within the court systemrequired in this case to bring this two-day matter to trial.

The trial dates are just over 19 months from the date the Information wassworn. No time periods have been waived and no actions of the Crown or the defence have adversely impacted the timing. The timeperiod is well beyond the guideline range identified in R. v. Morin, (SCC), [1992] SCJ No. 25 (SCC) and therefore aninquiry into its reasonableness is called for. That inquiry must also bear in mind that this is a two-day trial which it would be reasonableto conclude might take a longer time to schedule, although there is no evidence that that is the case. [11] Mr.

Jessop has referred to the decisions of this court and superior courts in this province in which judges have spoken about theimplication of insufficient resources to allow for reasonable scheduling of relatively straightforward criminal trials. Included are casessuch as R. v. Pridy 2011 BCPC 325, R. v. Moskal 2010 BCPC 294, and R. v. Ghislieri 2010 BCPC 86. [12] Those comments find their underlying support in the judgment of the Supreme Court of Canada in R. v. Morin. Paragraphs 47and 48 of that decision set out the general view about the implications of resources within the court system: (

d) Limits on Institutional Resources Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(

b) of the Charter. Itwas the major source of the delay in Askov. As I have stated, this is the period that starts to run when the parties are ready for trial butthe system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimitedand their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential courtstaff would always be available. Unfortunately, this is not the world in which s. 11(

b) was either conceived or in which it operates. Welive in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11(b), account

must be taken of this fact of life. As stated by Lamer J. (as he then was) in Mills (at p. 935), and approved in Askov (at p. 1225): In an ideal world there would be no delays in bringing an accused to trial and there would be no difficulties in securing fully adequate funding, personnel and facilities for the administration of criminal justice. As we do not live in such a world, some allowance must be made for limited institutional resources. How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources?

While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11 (

b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources.

This period of time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. Such a guideline was suggested in Askov and was treated by some courts as a limitation period.

I propose therefore to examine in some detail the purpose of a guideline commencing with an examination of its role in Askov. [ 13 ] In the absence of any other explanation, a delay of 17 months to fix a two-day trial on a relatively straightforward matter, and arising from a lack of institutional resources, is a factor which weighs against the Crown in the analysis.

However, it does not resolve the issue; it is a factor to be assessed with others and considered and balanced with the interests the right to a trial within a reasonable time is designed to protect and on the specific facts of each case. [ 14 ] The fourth factor to assess is prejudice to the accused. This is a significant factor in the analysis because the Supreme Court of Canada has said that where prejudice is not inferred or otherwise proven, the basis for enforcement of this Charter right is seriously undermined. Here, Mr.

Seabrook says he has suffered actual prejudice to his personal security interest through fears, anxiety and distress. He relates this in various ways to his financial circumstances, and to difficulties he has had in dealings with ICBC arising from the events underlying the charges. He also asserts that prejudice to his fair trial rights should be inferred because the evidence will rely on civilian witnesses who will be asked to give evidence about events which are now 21 months past and approximately nineteen months past the date on which the Information was laid. [ 15 ] I will address first Mr.

Seabrook's assertion of actual prejudice to his personal security interest. [ 16 ] Mr. Seabrook has given oral evidence under oath, and he has filed an affidavit. He was cross-examined on that affidavit. It appears that the charges before the court arose in the context of the investigation of a motor-vehicle accident at 152nd Street and 96th Avenue in Surrey. By letter dated December 6th, 2011 to Mr. Seabrook, and received by him within the week following, the Insurance Corporation of British Columbia informed Mr.

Seabrook that their investigation "indicated that you are 100 percent responsible for this accident." The letter goes on to inform Mr.

Seabrook that if he is convicted of any of the charges he faces he will be in breach of his insurance contract, and further, that even if he is not convicted he will nevertheless be in breach of the contract if "it is shown that you were incapable of proper control of your vehicle at the time of the accident due to the influence of alcohol or drugs." The letter points out that if he breaks the terms of the contract of insurance, his own claim will not be paid, he will be required to re-pay ICBC for all claims made against him, and that ICBC will not provide legal counsel if legal proceedings are begun against him. [ 17 ] The letter informed him that property damage claims against him and paid by ICBC to that date were $22,522.53.

Mr. Seabrook asserts his own vehicle was written off by ICBC and valued at $8,800 for which he has not yet received compensation. He has been receiving regular notices from ICBC that he owes in excess of $20,000 to ICBC and that that amount is past due. Copies of two of those notices were provided with his affidavit. For the last year he has received weekly calls from collection agencies. [ 18 ] Mr. Seabrook asserts in his affidavit that he has been unable to resolve financial obligations with ICBC until the criminal matters are resolved.

He has been unable to extend a line of credit he has held for four years with the TD Bank so long as the debt is outstanding. His credit rating is affected. Mr. Seabrook asserts these financial and insurance-related concerns have been causing him significant distress and anxiety. He feels shame and has suffered depression, hopelessness and despair. He fears bankruptcy and financial ruin.

Those are assertions made in his affidavit. [ 19 ] The tenor of Mr .Seabrook's evidence on cross-examination is that he is compelled to wait for the conclusion of the criminal proceedings before taking any steps to confront ICBC over fault or allegations of breach of the insurance contract. He asserts that if acquitted, his negotiating position with ICBC is improved. He says he had legal advice to this effect. [ 20 ] Here Mr. Seabrook faces, in addition to the criminal charges, the complication that he may not be covered by insurance.

His affidavit and his evidence focus on the stress and anxiety he is experiencing because he fears the financial implications of finding himself effectively uninsured. It is this financial vulnerability and exposure arising from his uncertain dealings with ICBC, not the criminal proceedings themselves, which underlie his argument of actual prejudice.

This is not anxiety, concern and stigma arising from exposure to criminal charges which is unduly prolonged, it is anxiety and concern over the potential loss of insurance coverage, and the indication set out in the letter of December 6, 2011 that ICBC will conclude he is 100 percent at fault which is distressing Mr. Seabrook. That is not prejudice contemplated within the interests protected by s. 11(

b) of the Charter . [ 21 ] Similarly, Mr. Seabrook's distress over his credit rating and the failure to renew a line of credit do not relate to anxiety and concern over exposure to criminal proceedings. Mr. Seabrook has not demonstrated actual prejudice.

[ 22 ] The argument for inferring prejudice focuses on Mr. Seabrook's fair trial rights. The strength of an inference of prejudice increases with the passage of time. Here the argument is that four civilian witnesses will have suffered memory loss or impairment with the passage of time, providing a basis to infer prejudice . In R. v. Godin 2009 SCC 26 , the Supreme Court of Canada addressed this issue, and at paragraph 40 in that decision the following is stated: As McLachlin J. (as she then was) put it in her concurring reasons in Morin , at p. 810, “[w]hen 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 of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.” [ 23 ] In a decision called R. v. Hagloff 2012 BCSC 449 , Mr. Justice Williams of the Supreme Court in this province pointed out at paragraph 57 that: The process of inferring prejudice is sometimes confused with presuming that there has been prejudice.

He went on to point out that the basis for a finding of prejudice, even by inference "must be at least minimally articulated and explained." [ 24 ] In the present case, no evidence is before the court beyond assertions of counsel about the nature of the evidence to be called or, for example, whether or not a record or statement is available to assist any of those witnesses. I, therefore, have no way of assessing whether an inference is reasonable.

Even within the Morin guideline period, one could reasonably conclude evidence would have deteriorated somewhat, but assessing the implication of that in any particular case and determining the strength of the inference to be drawn requires at least some articulation of the circumstances. That analysis surely must require more than the simple application of a determinative inference in the absence of any context. In the absence of that context I can give only slight, if any, weight to the inference of prejudice to Mr.

Seabrook's fair trial interest. [ 25 ] There is here a lengthy period of institutional delay, roughly twice the Morin guideline, but a basis to find at best only slight prejudice to the accused's interest as contemplated by s. 11(

b) of the Charter . In this case, the balance of interests favours the matter proceeding to a trial on the merits. This is not a case in which the extraordinary remedy of a judicial stay of proceedings is justified, and the application is denied (RULING CONCLUDED)