R. v. MacPherson Date:, 2014 BCPC 339

Citation: R. v. MacPherson Date: 20141211 2014 BCPC 0339 File No: 195858-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW ALEX MACPHERSON RULING ON APPLICATION OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: B.R. Beram Counsel for the Defendant: W. Jessop Place of Hearing: Surrey , B.C. Date of Hearing: December 9, 10, 2014 Date of Judgment: December 11, 2014 [ 1 ] THE COURT : Mr. Matthew MacPherson comes before the court charged with offences of Robbery and Using an Imitation

Firearm While Committing an Indictable Offence. The offences are alleged to have occurred on June 22, 2012, and the Information was sworn on August 10, 2012. [ 2 ] Mr. MacPherson elected trial in Provincial Court and the trial was to have commenced before me on December 9, 2014. He brought an application for a judicial stay of proceedings based on a deliberate Crown’s choice to delay notifying him of the offences, contrary to s. 11(

a) of the Canadian Charter of Rights and Freedoms , and a delay in bringing him to trial, contrary to s. 11(

b) of the Charter . [ 3 ] His application commenced on November 28, 2014. He provided three affidavits and viva voce evidence. The Crown called the main investigator, Cpl. Mitchell, of the Langley RCMP. [ 4 ] On June 22, 2012, a Toronto Dominion Canada Trust branch in Langley, British Columbia, was robbed by a lone male with an imitation firearm. He asked the teller for $10,000. He was given $250 and a dye pack. The dye pack exploded in the parking lot just outside of the branch. The monies were discarded. [ 5 ] Cpl. Mitchell was the lead investigator. He was contacted by Det.

Ron Gamble with the Edmonton Police Service who had knowledge of the Langley robbery by virtue of what is called a robbery bulletin. Det. Gamble actively assisted with the Langley investigation. Mr. MacPherson was identified as the suspect through photo packs shown to witnesses in Alberta. Cpl. Mitchell and Det. Gamble spoke on the telephone on July 3, 2012. On July 9, 2012, Mr. MacPherson was arrested in Red Deer, Alberta, and charged with four robbery offences from Edmonton, the dates of the robberies being May 31, 2012, June 28, 2012, July 5, 2012, and July 8, 2012. [ 6 ] Following upon Mr.

MacPherson's arrest in Alberta, Cpl. Mitchell prepared a Report to Crown counsel and submitted it to the Crown in Surrey for charge approval on July 19, 2012. In the Report to Crown counsel, Cpl. Mitchell advised the Crown that Mr. MacPherson was in custody in Edmonton. Crown counsel approved the charges and the Information was sworn on August 10, 2012. [ 7 ] Crown sought a warrant for Mr. MacPherson's arrest as the form of process, and the warrant issued on August 10, 2012. Notwithstanding that both the Langley RCMP and the Crown office knew that Mr.

MacPherson was in custody in Edmonton, Crown counsel chose perversely to authorize that the radius of the warrant be British Columbia only. No steps were taken either to notify Mr. MacPherson of the charges or to have the warrant executed upon him. [ 8 ] Mr. MacPherson applied for judicial interim release in Edmonton on June 12, 2013. As part of Crown's submissions seeking his detention, Crown filed a copy of the Langley Information.

Additionally, Crown counsel submitted in court as follows: There is also concern about this gentleman potentially returning to British Columbia, and part of the reason for that is at paragraph 21 of my materials. Right now this gentleman, Mr. MacPherson, has a warrant outstanding for his arrest in British Columbia and that's from Langley, and I have provided a copy of the Information to support that from the Langley, British Columbia, Crown's office. Essentially, there is a suggestion that this gentleman had committed a further robbery with a handgun on June 22nd, 2012. In speaking with my colleague, Ms.

Holland, the Langley Crown has every intention of extending that warrant once the matters are dealt with here. [ 9 ] In response, Mr. MacPherson's counsel submitted: Now, the fact that there is a warrant in British Columbia, the fact that B.C. is not going to execute that warrant until this prosecution is over suggests, in my submission, that the court ought to pay no regard to that fact, and obviously I don't have disclosure on that. [ 10 ] With respect to the British Colombia charges, the judge hearing the bail application in Edmonton commented as follows: The Crown indicates that the B.C.

Crown wished to extend the warrant on the B.C. matter when the Alberta matters are concluded. Defence counsel argued that I should ignore the B.C. matter, given that the B.C. Crown are not taking steps to execute the warrant properly. [ 11 ] A number of factors are apparent from those brief submissions: First, because Det. Gamble of the Edmonton Police Service had actively assisted the Langley RCMP in their investigation, and the prosecutors in Edmonton were aware of the allegations in British Columbia. Crown counsel in British Columbia had elected both to not notify Mr.

MacPherson of the allegations or to have the warrant for his arrest that had been issued executed upon him. Crown counsel in British Columbia had decided to delay proceedings with this active Information alleging serious indictable offences until such time as the Alberta prosecution was complete, no matter when that might be. The existence of the Information in British Columbia was disclosed to Mr.

MacPherson only because the prosecutor in Edmonton wished to use the allegations as a means of bolstering both its primary and secondary ground concerns to his application for judicial interim release. [ 12 ] On March 10, 2014, a judicial stay of proceedings for unreasonable delay was entered by a Justice of the Alberta Court of Queen's Bench. One of the causes for the delay in Alberta was the fact that Crown counsel's available dates were later than defence counsel's available dates. [ 13 ] As Mr. MacPherson was being released from custody, Det.

Gamble of the Edmonton Police Service arrested him on the basis of the outstanding warrant in British Columbia. Within one-half hour of his arrest, Crown counsel in Surrey authorized that the warrant for his arrest be extended to include Alberta. The warrant was executed. [ 14 ] Mr. MacPherson first appeared in custody in court in Surrey, British Columbia, on the charge on March 18, 2014. His application for judicial interim release on May 16, 2014, was denied. He subsequently retained his present counsel who first appeared with him on June 2, 2014.

After the bail hearing, Crown counsel who was assigned to the file was on an extended absence due to injury. On July 15, 2014, the present dates were fixed. While the court and defence counsel had dates in November for the trial into the allegations, Crown counsel did not, and the dates commencing December 9, 2014, were fixed. [ 15 ] The trial was to commence on that date and continue for ten non-consecutive dates until January 21, 2015. Because of this

application, the first two days of trial were lost for submissions to be made. Two more days of trial have been lost because of latedisclosure of material relevant to witnesses who purport to recognize Mr. MacPherson in the still photographs created from the TDCanada Trust surveillance video. Defence counsel required further time to prepare his cross-examination of those witnesses. [16] The result is that the trial will not end on January 21, 2015, nor will it continue on January 22, 2015. The court in Surrey is thebusiest Provincial Court in the Province.

Judges and courtrooms are not available to merely continue cases that have not concluded inthe allotted time. Rather, the four lost days will have to be set at some time in the future when not only the Court is available but alsoboth defence and Crown counsel. [17] Mr. MacPherson has filed three affidavits with the Court dealing with this application. His first two affidavits swore that he didnot know about the Langley allegations until he was arrested for them in March of this year.

Subsequent to the second affidavit beingsworn, Crown counsel obtained transcripts of the Alberta proceedings and disclosed the transcripts to defence counsel. Mr. MacPhersonthen swore his third affidavit in which he swears that he had no recollection of the references to the Langley allegations being made atthe time he sought bail in Edmonton. [18] While it strikes as remarkably odd, I accept that he forgot about the references. What is more important, however, is that by thetime he was arrested on March 10, 2014, he could not specifically recall his whereabouts in June of 2012.

In his viva voce evidence heswore that he has never been to Langley, British Columbia. He has 41 criminal convictions, none of which emanates from Langley. [19] Mr. MacPherson swore an affidavit in Alberta as part of his application for judicial interim release. In that affidavit, he swore tothe fact that for parts of May and June of 2012 he was in Nakusp. [20] Mr. MacPherson has been in continuous custody since his arrest on July 9, 2012. The charges at issue here were sworn onAugust 10, 2012, and a warrant issued for his arrest that day.

It could have been executed on that day because Crown counsel knew hisexact location in custody. [21] With respect to the execution of warrants upon individuals in other provinces, the Ministry of Attorney General Criminal JusticeBranch issued a practice bulletin November 18, 2005. Crown counsel are directed to consider whether the increased costs in returningthe accused person to British Columbia are outweighed by the social benefit in proceeding with a prosecution.

That issue anticipates thatif a decision is made not to have a warrant executed outside of the Province, that the prosecution might be barred from proceeding withthat prosecution because of prosecutorial delay. Crown counsel are directed to consider the seriousness of the crime, the viability of theprosecution, the possibility of having the accused person appear by closed circuit video, and whether there are outstanding charges inother jurisdictions.

The bulletin assumes and directs that indictable offences should generally have a Canada-wide warrant. [22] On March 17, 1997, British Columbia and Alberta entered into an agreement with each other to make all reasonable efforts toreturn prisoners provided such transfers are in the interests of justice. [23] I have been provided with the following authorities: R. v. Askov, (SCC), [1990] 2 SCR 1199; R. v. Morin, (SCC), [1992] 1 SCR 771; R. v. MacDougall, (SCC), [1998] 3 SCR 45; R. v. Singleton 2014 BCCA232 , 2014 BCJ No. 1213, a decision of the British Columbia Court of Appeal; R. v.

Gill 2014 BCJ No. 2380, a decision of theBritish Columbia Provincial Court; R. v. MacIntosh 2001 NSJ No. 660, upheld by the Supreme Court of Canada 2013 SCR 200; R. v.Duncan 2007 BCPC 126 , 2007 BCJ No. 971, a decision of the British Columbia Provincial Court; R. v. Chan 2008 BCJ No.590, a decision of the British Columbia Provincial Court; R. v. Satari 1991 BCJ No, 3691, a decision of the British Columbia ProvincialCourt; R. v. Ogilvie 2006 BCJ No. 1339, a decision of the British Columbia Provincial Court; R. v. Yellowhorse 1990 A.J. No. 964, adecision of the Alberta Provincial Court; R. v. Swindler 2009 A.J.

No. 1322, a decision of the Alberta Provincial Court; R. v.Desrochers 2012 A.J. No. 1227, a decision of the Alberta Court of Queen's Bench; R. v. Cardinal 1985 A.J. No. 1099, a decision of theAlberta Court of Appeal; R. v. Ryan 1999 NB No. 158, a decision of the New Brunswick Provincial Court; R. v. Seguin 2011 O.J. No.3681, a decision of the Ontario Superior Court of Justice; R. v. Ouimette 2009 O.J. No. 395, a decision of the Ontario Superior Court ofJustice; R. v. Godin, 2009 SCC 26 , [2009] 2 SCR 3; R. v. Arsenault 2013 O.J. No. 4470, a decision of the Ontario SuperiorCourt of Justice; R. v. Cisar 2014 O.J.

No. 952, a decision of the Ontario Court of Appeal; R. v. Fawaz 2011 BCJ No. 1275, a decisionof the British Columbia Court of Appeal; R. v. Ghavani 2010 BCJ No. 416, a decision of the British Columbia Court of Appeal; R. v.T.P. 2010 SJ No. 262, a decision of the Saskatchewan Court of Queen's Bench; R. v. McKinnon 1998 BCJ No. 703, a decision of theBritish Columbia Court of Appeal; R. v. Bennett 2008 A.J. No. 815, a decision of the Alberta Provincial Court; R. v. Jelenic 2003 BCJNo. 1728, a decision of the British Columbia Provincial Court; R. v. Rickett 2012 ABPC 52 , 2012 A.J.

No. 247, a decision ofthe Alberta Provincial Court; R. v. Lahiry 2011 ONSC 6780 , 2011 O.J. No. 5071, a decision of the Alberta Superior Court ofJustice; R. v. Turner 2012 BCJ No. 1200, a decision of the British Columbia Supreme Court; R. v. George 2006 MBCA 150 ,2006 M.J. No. 450, a decision of the Manitoba Court of Appeal; R. v. Bains 2010 BCJ No. 628, a decision of the British Columbia Courtof Appeal; R. v. Jordan 2014 BCCA 241 , 2014 BCJ No. 1263, a decision of the British Columbia Court of Appeal, and R. v.Amrani 2003 A.J.

No. 712, a decision of the Alberta Court of Queen's Bench. [24] The Applicant points out that the warrant for his arrest was executed upon him exactly 19 months past its issuance, and that forevery day of those 19 months the Crown knew exactly where he was. The 19-month delay is a consequence of a Crown decision to takeno action and results in an infringement of both his s. 11(

a) and 11(

b) rights. He reminded the court that it is the duty of the Crown tobring an accused person to trial. [25] The purpose of s. 11(

b) of the Charter is not only to protect the individual rights of accused persons, but to ensure society'sinterest in having expeditious trials into allegations of crimes. [26] He argued that s. 11(

b) will be found to be violated when the Crown takes no steps to have a suspect arrested when hiswhereabouts are known. This is an affirmative obligation on the Crown. The Criminal Code mandates in s. 511 that a warrant directthat a person named in it be arrested forthwith. The exception is a short delay authorized by the issuing judge. No discretion is given toCrown counsel to delay execution of a warrant. The Applicant argued that the Crown decision here is akin to gaiting. I cannot acceptthat proposition. It is not clear here that the Crown was choosing to keep the Applicant in custody without trial for as long as possible.

However, it is not clear only because the Crown has provided the Court with no motive for its decision and I am loathe to impute a motive as venal as gaiting to the Crown. [ 27 ] In Godin , the Supreme Court of Canada discussed the interest guaranteed by s. 11(

b) of the Charter : [30] Prejudice in this context is concerned with the three interests of the accused that s. 11 (

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence; insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise raise a defence.

The Applicant argued that all three heads of prejudice were impacted here. [ 28 ] In Arsenault , the court ruled that delay issues concerned the preservation both of inculpatory and exculpatory evidence: [90] The Crown says that the frailties that emerge in a witness’s memory over time enure to the Crown’s detriment and to the accused’s benefit because the Crown has the burden of proof at trial. I disagree. Exculpatory evidence is forgotten just as easily as inculpatory evidence.

The potentially harmful effect of a wrongful conviction upon an accused, and upon the administration of justice, arising as a result of a witness’s poor memory is much greater than the effect upon the Crown of an acquittal arising from the same cause. [ 29 ] The Applicant argues that with respect to the consideration of the five causes of delay identified in Morin , in this case actions of the Crown are the most significant cause. As the Supreme Court of Canada pointed out in MacDougall , the onerous burden on the Crown to bring an accused person to trial comes because the Crown has access to resources.

The Supreme Court of Canada upheld the Nova Scotia Court of Appeal in McIntosh in concluding that where the Crown knows where someone is and fails to exercise due diligence, the failure is attributable to the Crown as delay caused by it. [ 30 ] The Applicant points out that he has spent a significantly large period of time in pre-trial custody and longer than need be only because of the Crown's decision not to have the warrant it sought for his arrest executed upon him. As a result, his liberty interests have been compromised.

He argues as well that as the Ontario Court of Appeal pointed out in Cisar , the Crown also failed in its s. 11 (

a) obligations to him in failing to notify him of the specific charges. It was done only at the behest of the prosecution in Alberta and only then as a means of assisting Alberta in getting a judge to deny him bail. [ 31 ] The Crown argues that it is the actions of the Applicant that have caused the initial 19-month delay from the date the Information was sworn in August of 2012 to the date the warrant was executed upon him in March of 2014 because he was in custody in Alberta.

The argument is nonsensical and is a perversion of the Crown's constitutional obligations. [ 32 ] The Crown argues as well that good faith steps were taken by the Crown to notify the Applicant of the allegations against him. This position is completely contrary to all of the evidence before the court. The Applicant was not notified by the Crown in British Columbia. He was notified in an offhand way at the request for assistance by a prosecutor in Alberta.

Even after that request for assistance was made, the warrant was not executed upon him, nor was disclosure of the particulars of the allegations provided to him. [ 33 ] Crown counsel argues that the Applicant's liberty interests were not affected at all for the 19 months because he was in custody in Alberta and not on the British Columbia charges. The trial in British Columbia commenced eight-and-a-half months after Mr. MacPherson's first appearance in court in British Columbia on the allegations. His trial could have started and concluded in the 19- month period of time.

The Crown cannot have its euphemistic cake and eat it too. [ 34 ] The Crown relies on the T.P. case to suggest it had no obligation to have Mr. MacPherson arrested while he was in custody in Alberta. However, an analysis of the ratio of that judgment shows that the accused's argument failed because he claimed he had been in custody on the Alberta charge while in Saskatchewan when that was not the case. T.P. does not stand for the proposition argued by the Crown. [ 35 ] The Crown argues that there is no prejudice in this case because Mr.

MacPherson's three affidavits prove that he is not credible, that he could have given the Crown alibi notice, that his liberty interests have not been affected, and that the delay in British Columbia is not long enough for there to be any inferential delay. The Crown argues that if there is no prejudice there is no delay. Such a position is contrary to 31 years of Charter jurisprudence. Courts are to look at breaches and not engage in ex post facto supposition.

Additionally, all of Morin, Godin and Fawaz direct that the Crown approach is the incorrect manner in which to conduct the analysis. [ 36 ] The delay clock started running on the date the Information was sworn, August 10, 2012. It ends on what may be the last day of trial at this point, being sometime subsequent to January 21, 2015; a minimum of 29 months and 11 days, but in reality, longer. The initial 19 months of that delay were caused by a Crown decision to not have the warrant executed upon Mr. MacPherson.

But for the one-month delay between November 2014 and December 2014 to accommodate Crown counsel's calendar in fixing the trial date, there has been no real delay in British Columbia since Mr. MacPherson's arrest, but that one month must be added to the 19 months as it rests solely at the feet of the Crown. [ 37 ] Twenty months of Crown inaction is too long by any standard. Mr. MacPherson has suffered actual prejudice in that he has been and remains in pre-trial custody.

While he swore an affidavit on an earlier occasion that he believed that he was in Nakusp in May and June of 2012, it was nigh on impossible on March 10, 2014, for him to say with certainty where he was on June 22, 2012. It may not have been so on August 10, 2012, however. The warrant could have been executed on Mr. MacPherson on August 10, 2012. The Crown knew he was in custody, and where he was in custody. [ 38 ] The defence intends to argue at trial that the recognition witnesses inadvertently colluded with one another in their recognition.

There is a genuine fear from experience that asking witnesses what they said to one another some two-and-a-half to three years earlier will result in answers of "I don't recall." That fear is also a real and significant prejudice. [ 39 ] Had the warrant been executed upon Mr. MacPherson in August of 2012, he could have appeared initially by closed circuit

television from jail in Alberta. He could have given his counsel a counsel designation which would have permitted the lawyer to appear on his behalf without the necessity of even video appearances. Finally, he could have been brought in custody from Alberta to appear for trial. [ 40 ] This trial has commenced eight-and-a-half months since his first appearance in Surrey. There is no reason to believe, therefore, that had the warrant been executed when it ought to have been, that the trial would not have begun in May of 2013.

The Crown obligations here come from its own policy, the Criminal Code of Canada , and the Constitution of Canada. It chose to ignore all heads of its obligations. It chose to leave a man in custody and create delay. It chose to piggyback that delay upon any delay caused by the Crown in Alberta. Interestingly, the delay caused by the prosecution in Alberta warranted a judicial stay of proceedings. [ 41 ] The Crown has provided no explanation for its choices.

The facts of this case beg the question, "What was the decider thinking?" Whatever he or she was thinking have resulted in a situation of both deliberate inaction and deliberate creation and exacerbation of unconstitutional delay resting solely at the feet of the Crown. The Crown must bear the consequence of its choices and decisions. [ 42 ] The delay is long and inexcusable. The prejudice is real. A man has been denied the right to make full answer and defence. A man presumed innocent has been on charge for 853 days. The only remedy for that prejudice is the one mandated by s. 24(1) of the Charter .

The proceedings against Mr. MacPherson are stayed. (RULING CONCLUDED)