R. v. A.P. Date:, 2011 BCPC 139

Citation: R. v. A.P. Date: 20110518 2011 BCPC 0139 File No: 1894-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.P. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. M. MERRICK Counsel for the Crown: T. Cockfield Counsel for the Defendant: D. Fairweather Place of Hearing: Sechelt, B.C. Date of Judgment: May 18, 2011 [ 1 ] THE COURT: A.P., a youth, is charged with theft of money from two cars and possession of break-in tools. [ 2 } This is an application by A.P. for a judicial stay of proceedings on the charges against him, on the ground that his Charter right under s. 11(

b) of the Canadian Charter of Rights and Freedoms to be tried with a reasonable time has been infringed. [ 3 ] I will first review the facts as they have been outlined for me, for the purposes of this application, and the factors that I must consider. I will then apply those principles to the facts in this case and conclude with my ruling. [ 4 ] On July 25 th , 2009, RCMP received a 9-1-1 call concerning a break and enter into cars in the Davis Bay area. As I understand it one of the complainants, followed an individual in the area.

That individual ran. [ 5 ] The police attended, including Constable Scott, who is the dog master. Constable Scott engaged the dog and began to track an individual about 550 metres from a particular intersection. A.P. was found by Constable Scott and his dog. A.P. walked towards the police. The police officer says that he saw a knife and that he made three commands to A.P. to get down. A.P. says he complied with those demands. That is a factual dispute but is not of consequence to this application. [ 6 ] Constable Scott released the dog. The dog went towards A.P. The dog bit A.P.

As a result of the dog's actions, A.P. received serious injuries. A.P. was then arrested, taken to the hospital. He was released without charge and later summonsed to Court.

[7] The Information was sworn November 20th, 2009, and the first appearance was December 23rd, 2009. [8] On March 2nd, 2010, A.P.'s case was set for trial, with a trial date of October 7th, 2010. [9] On August 11th, 2010, A.P.'s case was added to the court list to cancel the October 7th, 2010, trial date, because no Judge was assigned to sit in Sechelt on October 7th, 2010. [10] The case was then reset for trial for April 20th, 2011.

On April 20th, 2011, the trial did not proceed due to a lack of Court time. [11] Counsel agree that if this matter were reset for trial the new trial date would be December 14th, 2011. [12] The general approach to a determination as to whether or not the right to a trial within a reasonable time has been denied is notthe application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which thesection is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. (See R. v.

Morin, (SCC), [1992] 1 S.C.R. 771.) [13] The burden, of course, is on the accused, A.P., to show an infringement of his right to be tried within a reasonable time. Thefactors that I must consider are: 1. The length of the delay; 2. Waiver of time periods; 3. 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 resources for the delay. [14] I must also consider, as number 4, prejudice to the accused. (See R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 andR. v.

Morin.) [15] I will now apply those factors to this case. [16] With respect to the length of the delay, the court in Morin, in attempting to set a guideline for the length of tolerable institutionaldelay, suggested eight to 10 months is generally acceptable if an accused is not in custody. [17] In A.P.'s case, it would be 25 months from the date the Information was sworn to the proposed trial date and approximately 21and one-half months from the date the case was first set for trial to the proposed trial date. [18] Regarding waiver, Crown and defence agree that there was no waiver of any period of delay by A.P. [19] I conclude, therefore, that the length of the unwaived delay, 25 months, is sufficient to justify an inquiry into the reasonablenessof the delay in this case.

That inquiry begins with an identification of the reasons for the delay. [20] I will begin with: (

a) The inherent time requirements. This is not a complicated case nor a lengthy case. Systematic delay starts to run when the partiesare ready for trial but the system cannot accommodate them. (See R. v. Morin). In this case, the inherent time requirements were from November 20th, 2009, to March 2nd, 2010, approximately three months. (

b) Actions of the accused. In this case, A.P. did not act in any way consistent with a person who is trying to delay matters, nor hasCrown suggested that A.P. has acted in a fashion which contributed to the delay. (

c) Actions of the Crown. There is nothing to suggest that Crown counsel did not act in a timely fashion to have a new trial date set upon learning that there would not be court on October 7th, 2010. That said, the onus is on the Crown to bring this matter to hearing. Itis the duty of the Crown to bring A.P. to trial. (See R. v. Askov, supra.) (

d) Limits of institutional resources. In an ideal world, there would be no delays in bringing an accused to trial, and there would be nodifficulties in securing fully adequate funding, personnel, and facilities for the administration of criminal justice. As we do not live insuch a world, some allowance must be made for institutional resources. (See Mills v. The Queen (SCC), [1986] 1 S.C.R.863.) [21] How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarceresources?

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

b) of the Charter meaningless. The Court cannotsimply 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 the light of the fact that the government has a constitutional obligation to commit sufficientresources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with theadministration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequateresources. (See R. v. Morin, supra.) [22] In this case, the delay is clearly attributable to a lack of judicial resources.

The first trial date had to be rescheduled because a Judge was not assigned to sit in Sechelt on October 7th, 2010. The trial did not proceed on the second trial date, April 20th, 2011, due toa lack of Court time. (

e) Other reasons for the delay. Based on what I have heard, there are no other reasons for the delay, other than what I have referred toin the inherent time requirements of the case and the limits on institutional resources. [23] I will now deal with number 4, Prejudice. [24] Prejudice in delay applications is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards topre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion thataccompanies a criminal charge; and the right to make full answer and defence insofar as delay can prejudice the ability of the defendantto lead evidence, cross-examine witnesses, or otherwise raise a defence. (See R. v. Godin 2009 SCC 26 , [2009] 2 S.C.R. 3.) [25] With respect to youth cases, it is recognized that on a balance delays of similar lengths will be more prejudicial to young personsthan for adult offenders. (See R. v.

H.R. et al 2005 BCSC 812.) [26] The question of prejudice cannot be considered separately from the length of the delay. As Justice Sopinka wrote in Morin, evenin the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the morelikely that such an inference will be drawn." [27] Where the delay exceeds the ordinary guidelines of a year or more, even though the case is straightforward, it is reasonable toinfer that prolonged exposure to the criminal proceedings resulting from the delay will give rise to some prejudice. (See R. v.

Godin,supra.) [28] With respect to young persons, I am of the view that prejudice may be inferred at a much earlier time than for adults. [29] In this case, I find that there is implied prejudice from the excessive delay. A.P. submitted a letter from his doctor outlining hislack of trust of authority figures. I accept that this problem was worsened by the failure of A.P.'s trial to proceed as scheduled. Further,the excessive delay required A.P. to relive the events, including being bitten by the police dog. That occurred for an extended period oftime. [30] These infringe on A.P.'s right to security of the person.

The letter from A.P.'s doctor also emphasizes that the lack of trust ofauthority figures also applies to the doctor, despite their long relationship. [31] I am also prepared to infer prejudice to A.P.'s ability to make full answer and defence. I infer prejudice to the solicitor/clientrelationship, and that probably explains why A.P. did not file an affidavit in this matter. [32] There has been no pre-trial custody, and A.P. was summonsed to Court.

I am, therefore, not prepared to infer prejudice regardingA.P.'s liberty. [33] While it is to be expected that every person charged with a crime will experience some anxiety, some difficulties, and somesocial stigma from being charged while awaiting a trial, as long as a trial occurs without too long of a delay, that kind of prejudice isneutral.

But here I find that this kind of prejudice should be given considerable weight, due to the excessive delay in this prosecution,which in the context of an adult, is at least one year over and above what is to be expected in a case of this kind. [34] In H.R. a delay of 10 and a half months was described as substantial. Here the delay is slightly more than double that. [35] It is my judgment that none of the delay has been caused by the actions of A.P. and the inherent time requirements of this caseonly amount to about three months.

The excessive delay must be combined with a prejudice that I find has been caused to A.P. [36] The next question is: does the excessive amount of delay and prejudice outweigh the interest of society in law enforcement? [37] A.P. faces serious charges proceeded by indictment. The more serious the charge, the greater becomes the interest of society inbringing accused persons to trial for crimes they are charged with. [38] It is my judgment that the institutional delay sways the balance. There is a point in time at which the Court will no longertolerate delay based on the plea of inadequate resources.

Here that limit has been far exceeded. Almost all of the delay has been causedby factors other than the inherent time requirements of the case and the actions of the accused. [39] I find that the other delay factors and the prejudice to the accused outweigh society's interest in prosecuting A.P. through trial. [40] I order that the prosecution of the charges be stayed. (JUDGMENT CONCLUDED)