R. v. Leuenberger Date:, 2011 BCPC 286

Citation: R. v. Leuenberger Date: 20110317 2011 BCPC 0286 File No: 20803-1 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SUSAN GAIL LEUENBERGER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: S. Cooke, appearing by teleconference Counsel for the Defendant: I. Lawson Place of Hearing: Smithers, B.C. Date of Judgment: March 17, 2011 [ 1 ] THE COURT: This is in a matter arising out of the Houston Registry File 20803, Regina versus Susan Leuenberger. This matter came on before me on February 8th and 9th in Smithers, British Columbia.

I am rendering my oral reasons for judgment in this matter. INTRODUCTION [ 2 ] The accused, Susan Leuenberger (the "Accused"), faces charges on a three-count indictment dated December 11th, 2008. It relates to offences alleged to have occurred between January 1st, 1999, and January 1st, 2004. The indictment was signed by the informant in December of 2008. The Accused's trial is set for November 28th, 2011. [ 3 ] All charges relate to her former employer and client, Kyah Industries Ltd., and are for theft over $5,000, contrary to s. 334 (

a) of the Criminal Code ; obtaining money over $5,000 by fraudulent means, contrary to s. 380(1) (

a) of the Criminal Code ; and with intent to defraud, making a false entry in the synoptic journals of Kyah Industries Ltd., contrary to s. 379(1) (

a) of the Criminal Code . [ 4 ] The loss that Kyah Industries is alleged to have suffered at the hands of the Accused is in excess of $800,000. [ 5 ] The police investigation leading to the laying of the charges by the RCMP was commenced in December 2004. Charges were not laid until December 11, 2008, an elapsed period of four years. [ 6 ] The Accused contends that as a result of the pre-charge delay her Charter rights under s. 7 have been infringed, and she seeks a judicial stay of the indictment and the charges contained within it. [ 7 ] This case raises the following issues that I must consider: (

a) whether the Accused has satisfied the onus on a balance of probabilities of demonstrating that the pre-charge delay will so adversely impact upon the fairness of the trial as to constitute a breach of either ss. 7 or 11 (

d) of the Canadian Charter of Rights and Freedoms ; (

b) if there has been an infringement of the Accused's rights resulting in prejudice to a fair trial, is a judicial stay under s. 24 of the

Charter the appropriate remedy or is some other remedy appropriate in the circumstances? [ 8 ] In order to consider these issues, I will review the relevant applicable statutory provisions, the source of and the evidence before me, the basis for and my findings of fact, the positions of the parties, the application of the law to the facts, and then conclude with my decision. RELEVANT STATUTORY PROVISIONS [ 9 ]

Section 7 of the Charter provides as follows: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 10 ]

Section 11 (

d) of the Charter provides as follows: 11. Any person charged with an offence has the right . . . (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [ 11 ] Section 24(1) of the Charter of Rights provides as follows, under the heading "enforcement of guaranteed rights and freedoms." provides: Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

EVIDENCE BEFORE THE COURT [ 12 ] The Accused presented evidence by way of an affidavit sworn the 20 th day of January, 2011 and filed on the 21 st day of January 21, 2011; the Accused was cross-examined on her affidavit by Crown Counsel. [ 13 ] The Crown presented evidence by way of an affidavit from RCMP Corporal Darren Dodge sworn the 27 th day of January, 2011 and filed on February 8 th , 2011. Corporal Dodge conducted the police investigation that gave rise to the charges while he was a constable assigned to the Houston/Granisle RCMP Detachment (hereinafter the “Detachment”).

He was examined in chief by Crown Counsel and was cross examined on his affidavit by Defence Counsel. [ 14 ] Three documents were entered into evidence as follows: a. Exhibit 1 being a copy of an Ex-Parte Order granted the 15 th day of December, 2004, by the Honourable Mr. Justice A. Cullen in the Supreme Court of British Columbia, Action Number 13655 Smithers Registry between Kyah Industries Ltd. as Plaintiff and Susan Gail Leuenberger, Hans Ulrich Leuenberger and Pleasant Valley Accounting Ltd., as Defendants. (hereinafter called the “Civil Action”) b.

Exhibit 2 being a copy of an Order granted by the Honourable Mr. Justice A. Cullen in the Civil Action on the 28 th day of January, 2005. c.

Exhibit 3 being a copy of an Inventory of Documents prepared by Kyah Industries Ltd., and described therein as “Inventory of Documents Received from Susan Leuenberger in Response to December 15, 2004 Order Received February 7, 2005”. [ 15 ] The terms of the Order entered as Exhibit 1 are relevant and provide as follows: 1) The Defendants, Susan Leuenberger and Pleasant Valley Accounting Ltd. do not dispose of any assets or encumber any assets until further Order of this Court. 2) The Defendants, Susan Leunberger and Pleasant Valley Accounting Ltd., preserve and protect all personal, business and financial records from 1998 to date and will not alter, hide or destroy such records without further Order of this Court. 3) The Defendants, Susan Leuenberger and Pleasant Valley Accounting Ltd., will account to the Plaintiff’s solicitors Perry & Company of Smithers, British Columbia as to the present location of and as to the disposition of monies they received from the Plaintiff from 1998 to August of 2004 on or before January 31, 2005 or before such period of time as may be ordered by this Court. 4) The Defendant, Susan Leuenberger, will produce to the Plaintiff and to Plaintiff’s solicitors, Perry & Company of Smithers, British Columbia, all banking records within her control for bank accounts, investments and/or other assets which she may have that are located in Europe for the time period of 1998 to the present date on or before January 31, 2005 or before such time as may be ordered by this Court. 5) The Defendants, Susan Leuenberger and Pleasant Valley Accounting Ltd., will produce all banking, business and other financial records from 1998 to August of 2004, including invoices to the Plaintiff, time records relevant to Susan Leuenberger and staff relating to work done for the Plaintiff, cheques removed from bank statements, year-end working papers for the Plaintiff, all records involving the Plaintiff, computer or manually prepared accounting records, journals, and general ledgers to Perry & Company on or before January 31, 2005. 6) The Defendants, Susan Leuenberger and Pleasant Valley Accounting Ltd., may apply to set aside or vary this Order on five days notice to the Plaintiff, Kyah Industries Ltd.

[ 16 ] The Order entered as Exhibit 2 was made following an application brought on by counsel for the Defendants in the Civil Action and the terms of that Order read in part as follows: 1) the Order of the Honourable Mr. Justice A. Cullen made Wednesday the 15th of December, 2004 is varied to give the Defendant until the 7th day of February 2005 to produce the documentation and information set out in the Order. 2) The application for an Order that the Defendant, Susan Leuenberger, be allowed access to money paid into RRSPs since August 2004 in the approximate amount of $4,000.00 is adjourned generally.

I shall refer to these orders collectively as the “Disclosure Orders”.

RELEVANT FACTS [ 17 ] The Accused provided accounting, bookkeeping and administrative services to Kyah Industries Ltd., and also provided these services to Kyah Industries Ltd. through her company known as Pleasant Valley Accounting Ltd.; these services were being provided at the time of the alleged offences between the 1 st day of January 1999 and January 1 st , 2004. [ 18 ] In or around June of 2004, Warner William, the manager for Kyah Industries Ltd. made a decision to: terminate its business relationship with the Accused and her company Pleasant Valley Accounting Ltd., switch accountants and engage the services of Wayne Callison of the Smithers, B.C. a member of the Chartered Accounting firm of Carlyle Shepherd & Co. [ 19 ] In or around July of 2004, while the Accused was away on vacation, representatives of Kyah Industries Ltd. attended at the Accused’s office in Houston, B.C. and took possession of a number of its accounting records and documents held at the offices of the Accused; the Accused learned of the termination of her services by Kyah Industries Ltd. and the removal of records from her office upon her return from vacation. [ 20 ] In the fall of 2004, Wayne Callison made a number of requests of the Accused for delivery of additional accounting records and documents for Kyah Industries Ltd.; further documents and records were delivered up by the Accused to Mr.

Callison. [ 21 ] By November of 2004, all synoptic journals of Kyah Industries Ltd. had been obtained by Kyah Industries Ltd., either when they removed their documents and records from the Accused’s office or when the synoptic journals had been delivered up by the Accused to Kyah Industries Ltd.’s new accountant Wayne Callison. [ 22 ] On December 15 th , 2004 the Accused became aware of radio reports that she and her husband were being sued by Kyah Industries Ltd.

Thereafter on December 22, 2004 a front page news story appeared in the Smithers Interior News, a local newspaper, containing an allegation that the Accused had misappropriated funds from Kyah Industries Ltd. and that the RCMP were investigating the Accused. At the time of the newspaper story the RCMP had not yet contacted the Accused. [ 23 ] The Accused and the other Defendants engaged the services of a local lawyer Donald Giddings to defend the Civil Action commenced by Kyah Industries Ltd.

After approximately a year, another local lawyer, Glen Greene, took over conduct of the Civil Action on behalf of the Defendants. The Accused was unable to continue to pay Mr. Greene. Mr. Greene’s representation ceased shortly before the trial of the Civil Action, which took place between December 12 th and 15 th , 2006.

The Accused then represented herself at the trial of the Civil Action. [ 24 ] During the conduct of the Civil Action, and while represented by counsel, the Accused was required by the Supreme Court of British Columbia Disclosure Orders made December 15, 2004 and January 28 th , 2005 to make disclosure and provide to Kyah Industries Ltd. and their lawyers copies of a number of documents relating to the affairs of Kyah Industries Ltd. that were in the possession of the Accused and the other Co-Defendants to the Civil Action.

The Co-Defendants were also required to make disclosure of and provide a number of the Accused’s personal banking statements and records and the banking statements and records of the Accused’s company Pleasant Valley Accounting Services Ltd. [ 25 ] The Accused complied, at least in part, with the disclosure terms contained in the Disclosure Orders made in the Civil Action. However, there is also some suggestion in the evidence that there may have been incidences on the part of the Accused of either delay or the failure to comply with these disclosure requirements on five or six occasions.

Exhibit 3 in these proceedings provides a detailed description of the types of documents delivered up by the Accused pursuant to the Civil Action Disclosure Orders.

It also describes certain documents and types of documents that, at the time of the completion of Exhibit 3, were alleged to be missing or had not been provided by the Accused. [ 26 ] The Accused did make some disclosure to Kyah Industries Ltd. of information including bank statements relating to her personal bank accounts with the Royal Bank of Canada and Houston and District Credit Union and bank accounts of Pleasant Valley Accounting Ltd. at the Houston and District Credit Union and a Royal Bank Account held by the Accused and Hans U.

Leuenberger. [ 27 ] During the trial of the Civil Action, a number of documents belonging to Kyah Industries Ltd. that had been in the possession of the Accused and that were either taken by Kyah Industries Ltd. from the Accused’s office or that had been disclosed by the Accused or delivered up by the Accused were entered into evidence. They are listed, with a general description, in the Exhibit Record of the Civil Action, which is attached as Exhibit “B” to the Accused’s affidavit sworn January 20 th , 2011 (hereinafter called the “Civil Action Exhibit Record”).

From the Civil Action Exhibit Record, it is not exactly clear specifically what was contained within each group of documents or the binders that are referred to in the Civil Action Exhibit Record, nor is that specific evidence before me. [ 28 ] Following the completion of the trial in the Civil Action, Corporal Darren Dodge met with the lawyers for Kyah Industries Ltd. in order to discuss the release of the exhibits being held by the Court Registry to the RCMP and to arrange to obtain a letter of authorization to that effect, from Kyah Industries Ltd.’s lawyers.

According to the Exhibit “B” of the Accused’s affidavit, on February 2, 2007 the Civil Action Exhibits were released to Constable Dodge following expiry of the appeal period in the Civil Action.

[ 29 ] Once in the possession of the RCMP, these exhibits in the Civil Action were catalogued and were identified as Exhibits 18 to 29 in the Exhibit Report prepared by the RCMP for their investigation of the Accused; the Exhibit Report is Exhibit “B” to the affidavit of Corporal Darren Dodge, sworn January 27, 2011 (hereinafter referred to as the “RCMP Exhibit Report”).

According to the evidence of Corporal Dodge, among the exhibits from the Civil Action were copies of Royal Bank statements of the Accused that were in the possession of the lawyers for Kyah Industries Ltd. and most likely had been obtained as a result of the Disclosure Orders made in the Civil Action.

Corporal Dodge testified that no reliance was placed upon those bank statements in the course of the police investigation. [ 30 ] At this point in time during February 2007, the Accused had not been contacted by the RCMP with respect to the criminal investigation that they had been conducting on her regarding the alleged misappropriation of funds from Kyah Industries Ltd. That investigation, of course, had been referred to in the December 22, 2004 front page story that appeared in the Smithers Interior News. [ 31 ] The newspaper story was indeed correct.

According to the Chronology of the Investigation undertaken by Corporal Dodge, which is attached as Exhibit “A” to his affidavit, the investigation was actually commenced on December 14, 2004. That is when Constable Dodge met with Wayne Callison and Dorian Callison and Warner William in Smithers, B.C. regarding an allegation that the Accused had misappropriated over $800,000.00 from Kyah Industries Ltd. [ 32 ] At the commencement of the investigation in December of 2004, Corporal Dodge was a RCMP constable and General Duty Investigator working out of the Houston/Granisle Detachment.

He had only a little over three years service with the RCMP. Prior to the investigation of the Accused, he had never investigated a large fraud. This was only his second fraud investigation. [ 33 ] During the course of the investigation of the Accused that spanned the period from December 14 th , 2004 to March 20, 2008, he was also assigned approximately 300 other files and assisted on countless others. In addition, during this period Constable Dodge was responsible for the field coaching of two recruits and the partial coaching of a third recruit all posted at the Detachment.

According to Constable Dodge’s evidence, which I accept, “This took up an enormous amount of time as Recruit Field Training lasts six months”. See Note 1 [ 34 ] In addition during the period of investigation of the Accused, as the Senior Constable at the Detachment, Corporal Dodge was very often the acting operations non-commissioned officer for the detachment and assumed that role full-time from August 2007 to March 2008.

In that position, he reviewed all ongoing investigations and supervised the other constables, while at the same time performing his regular duties as a general duty investigator. [ 35 ] According to the further evidence of Corporal Dodge that I accept, the terminal cancer diagnosis of his stepfather in the spring of 2006 and his passing in November of 2006 resulted in Corporal Dodge being required to take lengthy trips back to Saskatchewan in 2006.

It is safe to conclude that notwithstanding that the investigation of the Accused was a relatively complex one involving a large number of documents and serious charges, Corporal Dodge also had a large number of competing priorities besides the investigation of the Accused for the alleged fraud and theft being the subject-matter of the indictment in this matter. [ 36 ] According to the Chronology of Investigation, after his initial meeting with Messrs.

Callison and William on December 14th, 2004, from December 30th, 2004, through to March 15th, 2005, Corporal Dodge obtained a number of documents from Wayne Callison relating to the allegations against the Accused. Documents were delivered to the RCMP both prior to the making of the Disclosure Orders in the Civil Action and shortly after the February 7, 2005, amended deadline set out in the Disclosure Orders. [ 37 ] The documents delivered up by Wayne Callison by mid-March of 2005 are noted as exhibits 9, 10, 12, and 13 in the RCMP exhibit report.

Corporal Dodge testified, and I accept, that these documents were part of the business and accounting records of Kyah Industries Ltd. Among other things, the documents related to missing cheques of Kyah Industries Ltd., invoices rendered by Pleasant Valley Accounting Ltd. to Kyah Industries Ltd., and payments made to Pleasant Valley Accounting Ltd. by Kyah Industries Ltd., and unexplained payments allegedly made to the Accused and to her company, Pleasant Valley Accounting Ltd., by Kyah Industries Ltd. [ 38 ] These documents did not contain the personal records of the Accused or Pleasant Valley Accounting Ltd.

Included in the documents was correspondence from Wayne Callison that Corporal Dodge describes as an eight- or nine-page opinion letter setting out allegations of 13 incidents of fabrication made by the Accused in the financial records of Kyah Industries Ltd. This appears to be exhibit 14 in the RCMP exhibit report. [ 39 ] The documents noted as exhibit 13 appear to be another letter from Wayne Callison dated February 18, 2005, that provides an explanation of the documents delivered to Corporal Dodge. [ 40 ] Corporal Dodge also interviewed Warner William, the principal complainant, on January 18, 2005.

A number of other witnesses, including various subcontractors of Kyah Industries Ltd., were interviewed by Corporal Dodge as part of the investigation of the Accused from January through November 10th, 2005. Three other witnesses were also interviewed with the assistance of the RCMP detachments in North Vancouver, Surrey, and Smithers during this period. These three detachments, along with the Chilliwack detachment, assisted in the investigation. [ 41 ] The Chilliwack detachment completed an interview of Witness Mitchell much later on June 7th, 2007.

Corporal Dodge had become aware in very early 2005 that the Civil Action was proceeding against the Accused and that legal counsel for Kyah Industries Ltd. had obtained the Disclosure Orders. [ 42 ] Corporal Dodge kept in frequent contact with Wayne Callison and Warner William. He learned from them that the Civil Action would be proceeding to trial in December of 2006.

According to the Chronology of Investigation, in April of 2006, legal counsel for Kyah Industries Ltd. also informed Corporal Dodge that the Accused still had not produced the documents that she had been ordered to produce in the Civil Action. [ 43 ] By the end of 2005, a significant amount of investigation of the Accused had been completed by Corporal Dodge with the assistance of the other RCMP detachments. What was missing was any statement taken from the Accused and a transcript of the interview of Witness Mass conducted on August 12, 2005, by the Surrey RCMP detachment. That was eventually received on

December 13th, 2006. However, Corporal Dodge had in his possession copies of a handwritten statement of the interview of Witness Mass completed at a much earlier date. The statement from Witness Mitchell taken in June of 2007 had also not yet been received by the end of 2005. [ 44 ] A report to Crown counsel was not prepared in 2005. Corporal Dodge cites the fact that he had not interviewed the Accused nor had he obtained a transcript of the statement provided in the police interview of Witness Mass.

In fact, the report to Crown counsel was not prepared by Corporal Dodge until March 20th of 2008, almost two and a half years after the completion of a significant amount of police investigation and over three years after the commencement of the RCMP police investigation in December of 2004. [ 45 ] Corporal Dodge explains the delay as follows in paragraph 14 of his affidavit: I delayed obtaining a statement from Susan Leuenberger because I felt that it might be seen as oppressive if I interviewed her while she was facing separate legal action.

As well, because of the seriousness of the allegations and my limited knowledge of case law regarding fraud, I believed that if Leuenberger was found not legally responsible for any of her actions in the Supreme Court trial, then there would be little hope of succeeding with a criminal prosecution [OR little point in proceeding with a criminal prosecution]. [ 46 ] Corporal Dodge testified under cross-examination that during the course of his investigation of the Accused he had not sought legal advice as to whether or not obtaining a statement from the Accused while she was defending a civil action would, in fact, be oppressive to her.

He also testified that he did not think that there was a problem in delaying an interview of the Accused for the purposes of obtaining a statement from her. He did not think about the "downstream" effect on the Civil Action had she been previously convicted criminally on the charges arising out of the same facts. [ 47 ] The Civil Action proceeded to trial between December 12th and 15th of 2006, almost two years to the day after the commencement of the police investigation of the Accused by Corporal Dodge.

The Accused says that Corporal Dodge, whom she recognized when she was ultimately contacted by him in March of 2007, was in attendance throughout the trial of the Civil Action, dressed in civilian clothes. Corporal Dodge says that he definitely attended at the first day of the trial of the Civil Action while on his days off for the purposes of seeing what the trial was like. He says that he did not think he attended at the second day of the trial. He did not speak to the Accused nor identify himself to the Accused as a police officer.

He says that he was not there for the entire trial and never saw the Accused testify. I accept his evidence on these points. [ 48 ] As noted above, following the conclusion of the trial of the Civil Action, Corporal Dodge obtained a release of the trial exhibits from the Civil Action around February 2nd, 2007, with the cooperation of the lawyers for Kyah Industries Ltd. He explained in cross- examination that he felt he was the "safekeeper of these exhibit documents" that arose out of the Civil Action.

At no point did Corporal Dodge obtain a search warrant with respect to the documents that had been the property of Kyah Industries Ltd. or any of the documents that had been turned over to Kyah Industries Ltd. pursuant to the Disclosure Orders in the Civil Action. [ 49 ] After obtaining the release of the exhibit documents from the Supreme Court registry, Corporal Dodge began making attempts to obtain a statement from the Accused. In their first meeting, the Accused recognized Corporal Dodge from being in attendance at the trial of the Civil Action.

Corporal Dodge obtained a statement from the Accused in or around March 14, 2007. The Chilliwack detachment interviewed witness Mitchell on June 7th, 2007.

Corporal Dodge completed the report to Crown counsel on March 20th, 2008, over a year from the date that he conducted his interview of the Accused and almost two and a half years from the conclusion of a significant part of the investigation in November of 2005. [ 50 ] Again, Corporal Dodge cites his very significant workload and numerous other increased responsibilities during 2006 and 2007 as contributing to the further delay in completing the report to Crown counsel. [ 51 ] Corporal Dodge's evidence confirms that prior to March of 2007, he did not make the Accused aware that she was under investigation for any alleged offences.

Although he stated that there was no specific strategy on his

part in not speaking to the Accused, he testified that it is not common police practice to tell a suspect that they are under investigation. He also confirms that he would not normally interview a suspect without previously obtaining all of the witness statements. He says that the transcript of the Witness Mass interview remained outstanding for some time. However, it must be noted that in fact he admits that he had already received copies of the notes made at the time of the interview of Witness Mass by the Surrey detachment.

Furthermore, three months subsequent to the interview of the Accused, the Chilliwack RCMP interviewed Witness Mitchell. [ 52 ] There is no evidence or explanation about the further delay of almost nine months between the time that Corporal Dodge completed the report to Crown counsel on March 20th, 2008, and the signing in or around December 8th, 2008, by the informant pursuant to s. 508.1(2) of the Criminal Code of the Information by Telecommunication That Produces a Writing. This document sets out the charges against the Accused.

Presumably, the Crown was dealing with charge approval during this period. [ 53 ] In paragraph 8 of her affidavit sworn January 20th, 2011, the Accused states as follows: Had I known that I would be facing a criminal charge as well as a civil lawsuit, I would have handled the civil trial differently. Without doubt, my counsel would have requested adjournment of the civil trial until the criminal matter was dealt with. If I had been facing a criminal charge and the possibility of jail, I would have received legal advice on the criminal charges before proceeding with the civil case.

Now having received that advice from my current counsel, I realize I likely incriminated myself in the civil trial. [ 54 ] In paragraph 9 of her affidavit sworn January 20th, 2011, the Accused further states as follows: Had I been charged and received such advice before the civil trial, I would have also realized my production of documents in the civil case may also have incriminated me. In fact, on the third day of the civil trial, the court directed me to retrieve documents from my house that I had not previously disclosed.

Those documents then became exhibits in the trial. [ 55 ] In cross-examination, the Accused conceded that at no time did she make any inquiries with the RCMP as to whether she was under criminal investigation by them, a possibility that she became aware of December 22nd, 2004, based on the front page story

appearing in the Smithers Interior News. Also, she further concedes she was never told that the RCMP were not continuing aninvestigation of her. [56] Given the fact that the newspaper

article suggested that a police investigation of the Accused was taking place, and given thenature of the serious allegations against her, and the fact that the Accused had legal representation in the Civil Action for a period of twoyears immediately preceding the trial, it is somewhat difficult to imagine that the prospect of potential criminal charges were not mattersof significant concern for the Accused leading up to that civil trial. [57] One can only speculate that the Accused believed she would be successful in the Civil Action which would then deter the Crownfrom pursuing the criminal charges.

That certainly was in the mind of Corporal Dodge. Such speculation is not required for thepurposes of the conclusions that I have reached in this matter. POSITIONS OF THE PARTIES [58] The Accused's position is that there has been a serious infringement of her rights under s. 7 of the Charter by virtue of the factthat the pre-charge delay in this criminal matter resulted in the Civil Action against her proceeding to a trial based on the same set offacts but prior to either of the disclosure of or the trial of the criminal allegations against her.

She says that such a process isfundamentally not part of our criminal justice system. In our system, an accused person is not required to produce potentiallyincriminating documents or other critical pieces of evidence in their possession. That is the purpose of a search warrant. [59] In criminal proceedings against them, an accused is not required to testify and provide incriminating testimony.

In particular,they are not required to produce evidence in criminal proceedings under the threat of contempt of court as may be the situation in civilproceedings and as was the case in the Civil Action. [60] The Accused does not contend that the delay of the disclosure of the police investigation or the laying of criminal proceedingspending the conclusion of the Civil Action with resulting mandatory disclosure by the Accused thereunder was a strategic plan on thepart of the Crown or the police. [61] The Accused argues that Corporal Dodge was simply "over his head" and inexperienced in this type of investigation.

He failedto realize that there was a potential problem created by his delay in completing the criminal investigation, especially in light of the factthat the Civil Action was already underway and proceeding quickly at the time he was starting his criminal investigation.

He failed toobtain good legal advice at the outset that would have identified the problems that were being created by his delay in thesecircumstances. [62] The Accused argues that given the existing circumstances of the Civil Action proceeding and the fact that within the first twomonths of the criminal investigation Corporal Dodge had obtained from Wayne Callison sufficient information to confirm the likelihoodthat a crime had been committed, it was then that Corporal Dodge should have obtained the statement from the Accused in order to finishup his investigation and the report to Crown counsel. [63] The first effect of the delay was the disclosure made by the Accused under the Disclosure Orders in the Civil Action this couldhave been held in abeyance pending the disposition of the criminal charges by the appropriate action being taken by the Accused'slawyer in the Civil Action.

By further delay in obtaining the statement from the Accused and permitting the trial of the Civil Action toproceed, the Crown now has the advantage of the availability of the testimony provided by the Accused in the Civil Action and, ofcourse, the various exhibits in the Civil Action. [64] Again, the argument is that the delay in the Accused becoming aware of the criminal charges deprived the Accused of theopportunity to apply for an adjournment of the trial in the Civil Action pending disposition of the criminal charges.

The Accused saysthat the trial judge of the Civil Action would have granted that adjournment had the matter been raised in order to permit the criminalmatter to proceed first in the usual manner. [65] Since the delay in charging the Accused is a reality and the Civil Action has proceeded to trial in the absence of the dispositionof the criminal charges, the Accused says that this amounts to a very significant violation of the Accused's rights under s. 7 of theCharter. The delay has resulted in the inability for her to obtain a fair trial.

This can only be remedied by a judicial stay of theindictment being entered pursuant to s. 24(1) of the Charter. [66] The Accused relies generally on a concept set forth in the dissenting opinion of Justice Lamer (as he then was) in an early case ofthe Supreme Court of Canada that examines ss. 7 and 11(

d) of the Charter; namely, R. v. Mills, (SCC), [1986] 1 S.C.R.863 at page 945. This provision was cited in a unanimous decision of the Supreme Court of Canada in R. v. L.(W.K.), (SCC), 64 C.C.C. (3d) 321 at paragraph 24. Justice Stevenson for the court says in that case as follows:

Section 7 and s. 11(

d) of the Charter protect, among other things, an individual's right to a fair trial. The fairness of a trial is not,however, automatically undermined by even a lengthy pre-charge delay. Indeed, a delay may operate to the advantage of the accused,since Crown witnesses may forget or disappear. The comments of Lamer J., as he then was, in Mills v. The Queen, supra, at p. 945, areapposite: Pre-charge delay is relevant under ss. 7 and 11(

d) because it is not the length of the delay which matters but rather the effect of that delayupon the fairness of the trial. [Emphasis added.] Courts cannot, therefore, assess the fairness of a particular trial without considering the particular circumstances of the case. Anaccused's rights are not infringed solely because a lengthy delay is apparent on the face of the indictment. [67] In

summary, the Crown's position is that notwithstanding the delay in bringing of the criminal charges against the Accused, andthe fact that the Civil Action has proceeded to trial before the criminal charges have been dealt with, and that the civil litigation processhas resulted in disclosure by the Accused, the onus to establish a breach of s. 7 is on the Accused based on a balance of probabilities. In

support of this proposition, reliance is placed on R. v. L.(W.K.), supra, at paragraph 18, and see also R. v. D.(D.L.), (MB CA), 77 C.C.C. (3d) 426 (Man. C.A.) at paragraphs 8 and 17. [68] In order to meet that onus, the Accused must go beyond the fact that there has been delay and establish she has suffered actual orsubstantial prejudice to her right to a fair trial: see R. v. D.(D.L.), supra, at paragraph 17.

Furthermore, the prejudice required to establisha breach of s. 7 of the Charter is prejudice to the defence of such a magnitude and importance that it can be fairly said to amount to adeprivation of the opportunity to make full answer and defence. Reliance is placed on R. v. C.(R.) (1995), (ON CA),77 O.A.C. 56 (Ont. C.A.) at paragraph 7. [69] Crown further argues, based on R. v. Mills, (1999) (SCC), 3 S.C.R. 668 at paragraphs 72-74, that s. 7 of theCharter safeguards the Accused's right to a fair trial but does not entitle the Accused to the most favourable procedures imaginable.

Thetrial fairness is not assessed exclusively from the perspective of the Accused. It must be assessed in the light of broader societalconcerns, including society's interest in having the trial process arrive at the truth. [70] With respect to the applicable remedy, the Crown says that a stay of proceedings is an extraordinary remedy available only in theclearest of cases and reserved for situations in which no other measure will remedy a serious breach of an accused's rights. Reliance isplaced on R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128 at paragraph 26, and also R. v.

O'Connor (1995), (SCC), 103 C.C.C. (3d) 1 (S.C.C.) at paragraphs 75, 80, and 81. [71] Crown says that this is not such a case and urges that if the Accused is to be afforded a remedy it should not be a judicial stay ofthe charges. [72] The Crown says that the evidence before me does not disclose a substantial prejudice to the Accused because the Accused'sevidence in the Civil Action cannot be used to incriminate her, and any documents acquired by the police could not be used against her.

Furthermore, they say there is no evidence before me that any of the documents that came into the hands of the RCMP and are listed inexhibit 3, which is called the "Inventory of Documents Received From Susan Leuenberger in Response to December 15th, 2004 Order,"are the subject matter of the criminal charges.

Rather, they say that the evidence suggests that the Accused had previously delivered upeverything requested by Kyah Industries Ltd. and their chartered accountants prior to the Civil Action. [73] Implicit in the Crown's arguments is that it will be up to the trial judge at the trial of the Accused's criminal charges to determinethe admissibility of any evidence that has come into the possession of the police whether or not from the Civil Action. As a generalobservation, the cases cited by the Crown are, in my view, an appropriate and correct statement of the law on these various issues.

APPLICATION OF THE LAW TO THE FACTS [74] There is evidence of a significant pre-charge delay in this case. I agree with counsel for the Accused that the delay in thecompletion of the police investigation was not a strategic move on the part of the police or the Crown. The delay is troubling. Thehandling of this investigation from a timing perspective was far from satisfactory. I cannot find that the delay was caused by the policeor the Crown for an oblique or ulterior purpose. It was mostly the result of an overworked and inexperienced junior investigator with ahuge number of responsibilities.

In saying so, I am mindful of the decision in R. v. Young (1984), (ON CA), 13C.C.C. (3d) 1 (Ont. C.A.), and specifically paragraphs 89-91 which stand for the proposition that courts cannot undertake the supervisionof the operation or the efficiency of police departments and be asked to determine whether the police proceeded as expeditiously as theyshould have in any given case. [75] The pre-charge delay did result in a very odd situation whereby the Civil Action proceeded well in advance of the criminalcharges being laid, much less coming to trial, but certainly during the conduct of the criminal investigation.

Crown has referred me to asimilarly odd situation heard by our Court of Appeal in R. v. Porter,

(2002) Carswell BC 1260, 2002 BCCA 355. The facts aredifferent. The appellant's criminal trial in Porter began while the civil action arising out of the same allegations was continuing. InPorter, the trial judge in the criminal trial was alive to the oddity and the problems presented by the concurrent civil proceedings. Significantly, Mr. Porter instructed the law firm that was representing him then in both matters to proceed with both trials in this manneras part of a tactical decision. [76] After dealing with these facts, and the fact there was evidence to the effect of an order made by the judge in Mr.

Porter's civilmatter did not limit his counsel from fully and freely conducting Mr. Porter's defence, Chief Justice Finch states in paragraphs 47-49 asfollows: [47] In the face of this evidence, the appellant's complaints of prejudice arising from the concurrent proceedings seem to lose all force. It was not open to the Crown to say when the civil trial or pre-trial proceedings should take place. Nor did the trial judge in the criminalcase have any power to intervene in that regard. In the civil proceedings, neither the plaintiff Mr.

Henderson nor the co-defendantSaanich, had any control over the criminal trial date. [48] Mr. Porter had no right of silence in the civil action. He was bound to submit to the usual civil discovery procedures. Heapparently testified voluntarily in defence of the civil action. Counsel pointed to no instance where testimony given by the appellant inthe civil trial was used to incriminate him in the criminal trial. Mr. Henderson was not an agent of the state. He gave, unasked for,documents produced in the civil action to a police officer, Constable Teague, who was involved in the prosecution.

There was nothingimproper in that. [49] There was nothing to prevent Crown counsel from observing the civil trial and obtaining access to documents filed as exhibits inthat proceeding. The appellant led no evidence to suggest that Crown counsel obtained or used testimony given by the appellant in thecivil discovery process.

In any event, it does not appear that that would have been unlawful or improper. [77] While acknowledging the oddity of such cases, it is apparent that so far as our Court of Appeal is concerned, the access toevidence by the Crown or the police from a related civil litigation matter can occur in certain circumstances without their being anythingunlawful or improper. In other words, just because it occurs does not, in itself, make it prima facie wrong or offensive.

[78] I note parenthetically that in the matter before me the police or Crown had no control over the timing of the civil action and thematter in which it was prosecuted. [79] While there is certain delay in charging and prosecuting the Accused in this case, I do not find that there is sufficient evidence forme to conclude that there is prejudice to the extent that the Accused cannot receive a fair trial. The burden on the Accused that I find hasnot been discharged is as set out in R. v.

D.(D.L.), supra, and specifically at paragraph 17 as follows: What then must an accused do to demonstrate that the delay so unduly affected the fairness of the trial as to justify a judicial stay ofproceedings (to paraphrase the language of Mills, supra)? It would appear that no appellate court has directly faced this issue. Clearly thefacts relied upon, or which are not available, must be material, and there must be evidence of actual or substantial prejudice whichresulted in a breach of the accused's right to a fair trial. As noted in R. v. G. (W.G.), (1990), (NL CA), 58 C.C.C. (3d)263 (Nfld.

C.A.) (at p. 273): A trial judge may not add surmised facts to proven facts and conclude therefrom that the trial of an accused person at a late date wouldbe unfair or that the accused person would be prejudiced in his defence.

The judge must be satisfied on a balance of probabilities basedon the proven facts that such unfairness or prejudice exists. [80] In this case, the facts indicate that any prejudice that may have been suffered by the Accused flowing from the delay does notamount to such a significant degree or amount to prejudice of such a magnitude and importance that I can conclude fairly that it willamount to a deprivation of the Accused to make full answer and defence. This is the test enunciated in R. v. C.(R.), supra. [81] In R. v.

Taillefer, 2003 SCC 70 , [2003] 3 S.C.R. 307 at paragraphs 117-119, the Supreme Court of Canada summarizeswhen a judicial stay should be made available: 117 This Court has frequently underlined the draconian nature of a stay of proceedings, which should be ordered only in exceptionalcircumstances.

A stay of proceedings is appropriate only "in the clearest of cases", that is, "where the prejudice to the accused's right tomake full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system ifthe prosecution were continued" (O'Connor, supra, at para. 82).

It is a "last resort" remedy, "to be taken when all other acceptableavenues of protecting the accused's right to full answer and defence are exhausted" (O'Connor, supra, at para. 77; see also Tobiass,supra, at paras. 89-90; Carosella, supra, at paras. 52-53; Regan, supra, at paras. 53 et seq.). 118 In O'Connor, supra, at para. 75, this Court adopted principles to circumscribe the power to order a stay of proceedings.

Theseprinciples confirm the seriousness of such a decision and the need for a careful and balanced analysis of all the interests at stake — theinterests of the accused, of course, but also the interest of the public in crime being punished and in criminal cases being diligentlyprosecuted.

Those principles hold that a stay of proceedings will be an appropriate and fair remedy where: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by itsoutcome; and (2) no other remedy is reasonably capable of removing that prejudice. 119 These criteria recognize the prospective rather than retroactive nature of the remedy.

Although, in very rare circumstances, theconduct of the prosecution may be so serious that a stay of proceedings is required in order to avoid bringing our system of justice intodisrepute, it is not the purpose of this remedy to punish blameworthy conduct on the part of the State. The remedy is primarily meant toprevent an abuse from being perpetuated or aggravated (Regan, supra, at para. 54; Tobiass, supra, at para. 91). [82] This is not one of the "clearest cases" where irreparable prejudice would be caused to the integrity of the judicial system if theprosecution were continued.

It is not a case where the prejudice caused by any abuse in question will be manifested, perpetuated, oraggravated by the conduct of the trial or by its outcome. [83] In this case, there is another remedy capable of removing any prejudice that may have been suffered by the Accused.

In myview, the fairness of the trial must be in the hands of the trial judge who will be in the best position to assess and determine theadmissibility of what will no doubt be a significant amount of evidence that is in the possession of the Crown or has been obtained in thecourse of the protracted police investigation or was obtained from the Civil Action. [84] The trial judge will also be in the best position to control the admissibility, exclusion, and the Crown's use of any testimonygiven by the Accused in the Civil Action. [85] In these present circumstances, protection of the Accused's Charter rights under ss. 7 and 11(

d) could be done in the course ofthe trial by the trial judge. The Crown is obliged to prove its case beyond a reasonable doubt only on the basis of admissible evidence. [86] This is a case where it is appropriate for the trial judge to use the "scalpel" that the Supreme Court of Canada in O'Connor saysthe Charter has put in the hands of judges rather than the axe of a judicial stay. CONCLUSION [87] I therefore dismiss the Accused's application, and there will be an order accordingly. [88] That concludes my reasons for judgment. [89] MR. LAWSON: Very good, Your Honour. [90] MR. COOKE: Thank you, Your Honour.

Note 1: That portion of these oral reasons for judgment from the heading “Evidence Before The Court” to the immediately preceding

paragraph were not recorded due to an audio malfunction from 9:44:04 to 10:03:06 and have been reproduced from MacCarthy, PCJ’s type written notes used to render the oral reasons. (REASONS CONCLUDED)