R. v. Nahal Date:, 2012 BCPC 135

Citation: R. v. Nahal Date: 20120216 2012 BCPC 0135 File No: 183792-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAJAN NAHAL RULING ON APPLICATION OF THE HONOURABLE JUDGE GULBRANSEN Counsel for the Crown: A. Ip Counsel for the Defendant: S. Nozick Place of Hearing: Surrey , B.C. Date of Hearing: January 26, February 13, 2012 Date of Judgment: February 16, 2012

INTRODUCTION [1] THE COURT: Mr. Nahal, charged with impaired driving and driving while over 08, to speak colloquially, seeks a remedy ofa stay of proceedings on the basis that his right to be tried within a reasonable time has been infringed. [2] The trial date of February 16th, 2012, is approximately 17 months from the date of the swearing of the Information againsthim. He says that the delay is far beyond the guidelines provided by the Supreme Court of Canada for courts to complete trials of anyperson charged with a

summary conviction offence. He further asserts that he has suffered prejudice from the delay, and he tenderedevidence to support that assertion. [3] The Crown replies that the evidence of alleged prejudice should be given no weight whatsoever. The Crown furthersuggests that the accused was quite content to let these proceedings drag on. Thus, the Crown says there is no evidence that thedefendant suffered any prejudice in this case. Any effects that he complains of, says the Crown, are the affects that any person chargedwith an offence may suffer.

APPLICABLE LEGAL PRINCIPLES [4] The law governing the application in this case has long been settled. The issue that I have to determine in this particular caseis whether, first, there has been a delay in bringing this case to trial which may be considered to be unreasonable. Second, if I decide thatI must make such an assessment, I must decide whether the defendant has established, on a balance of probabilities, that he has sufferedprejudice from the delay, thus leading to a finding that the delay is unreasonable. [5] In R. v.

Morin (1992), (SCC), 1 SCR 771, the Supreme Court of Canada set out basic guidelines which acourt must follow in determining whether a particular delay is unreasonable. Just as an aside, the court ultimately decided that thebenchmark timeframe for

summary conviction matters to come to completion in any particular court is eight to ten months. The factorsa trial court must consider and assess are the length of the delay, waiver of time periods, the reason for the delay including inherent timerequirements of the case, actions of the accused, actions of the Crown, limits on institutional resources, other reasons for the delay, andprejudice to the accused. [6]

Section 11(

b) of the Charter of Rights is intended to protect an accused from prejudice which might impair the interest of theaccused in having a fair trial. For example, a long delay may affect the ability of witnesses to remember what happened.

Section 11(b)also protects against prejudice that might occur to an accused person's liberty interest; for example, to protect against an accused personbeing detained in custody for a lengthy period of time awaiting trial.

The courts have also recognized a more general type of prejudicerelated to what I would call the psychological or emotional and physical effects that accused persons may suffer while being exposed to alengthy delay for trial. [7] The courts, however, make a distinction between the kind of prejudice that every person charged with a crime suffers, andprejudice that occurs to a person because of the time that has passed before the trial occurs.

In essence, the courts have recognized thatprolonged exposure to the kind of stresses that occur because a person being charged with a crime does in fact constitute prejudice,essentially because the prolonged exposure to these kinds of stresses intensifies or exacerbates the psychological or emotional orphysical difficulties that result from charges being sworn. [8] For example, in his decision in the case of R. v.

Morin, Chief Justice Lamer said that some prejudicial effects would be: “stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption offamily, social life and work, legal costs, uncertainty as to the outcome and sanction.” [9] Courts have recognized that the concept of a person having a charge hanging over his head for a prolonged period of timemay result in tangible prejudice caused by these pressures. For example, in R. v. Godin, 2009 SCC 26 , [2009] 2 SCR 3 anotherdecision of the Supreme Court of Canada, Mr.

Justice Cromwell speaking for the court said: Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trial custodyor bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminalcharge; 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 to raise a defence. It is the second of those categories referred to by Mr. Justice Cromwell, that is "being free from the stress and cloud of suspicion" thatarise from a criminal charge that is relevant to the case at bar. Further on in the judgment, Mr.

Justice Cromwell approved of the trialjudge's finding that there was prejudice in that particular case and said that: It was reasonable, in my view, to infer as the trial judge did that the prolonged exposure to criminal proceedings resulting from the delaygave rise to some prejudice. [10] I refer also to the words of Mr. Justice Bauman, as he then was, in R. v. Walker Feb. 18, 1998, Campbell River RegistryDocket 21783. In that case he found that it was incorrect for the trial judge not to have inferred that the accused suffered someprejudice.

He said: The accused's criminal charges have remained unresolved for an extended period. Impaired driving is properly considered to be a seriousoffence in our society. One cannot dismiss lightly the stress such charges place on an accused person or the potential for damage to hisor her reputation while they remain outstanding. Thus it is clear that in considering the question of prejudice, the courts have recognized that merely being exposed to criminal charges

over a lengthy period of time can result in prejudice. In some circumstances the courts have concluded that the delay is so long that the only conclusion they can come to is that there was some prejudice to the accused. In other circumstances, courts have declined to find any prejudice in the absence of any evidence presented by the accused person to prove the prejudice. CIRCUMSTANCES [ 11 ] The circumstances of this case are not really contested. The accused was arrested for impaired driving on April 24th, 2010. After he provided breath samples he was released and given a Promise to Appear for August 11th, 2010.

Sometime before that date a police officer called Mr. Nahal and said that he need not attend court on August 11th. Mr. Nahal believed that the officer told him the charges had been dropped. Nevertheless, he hired a lawyer, Mr. Nozick, to go to court for him. The accused was concerned that a warrant might issue for his arrest if he or someone else did not appear for him. [ 12 ] Mr. Nozick attended Surrey Provincial Court and could not find Mr. Nahal's name on any list. He went to the Crown office and was told that the Crown had not yet received any documents from the police regarding the accused. Mr.

Nozick got the Crown to acknowledge that he had attended by having the Crown stamp the Appearance Notice that Mr. Nahal had been given. The Crown eventually did get materials from the police about Mr. Nahal and an Information was sworn on August 25th, 2010. A summons was issued on September 15th, 2010, returnable on October 11th, 2010. The accused appeared on that date and received disclosure. The matter was adjourned to November 6th, 2010. On that date counsel set a trial date, being today, February 11th, 2012. [ 13 ] Mr. Nozick and his client both asserted that this date was the first trial date available.

I have no doubt that this is true. Neither Mr. Nozick nor his client sought an earlier trial date by coming back to court and complaining about the lengthy wait for trial. In my view, this would have been a futile exercise. The courts in Surrey are booked heavily and it would have been a futile gesture to somehow fix a much earlier date in the hopes that some trials would fall through and that the defendant's trial would proceed. It would also be quite unfair to the Crown witnesses to make them come to court without any real hope of getting on. [ 14 ] In April 2011 the Crown gave notice to Mr.

Nozick and his client that the Crown intended to proceed by way of Notice to Seek Greater Punishment; that is, the Crown alleged that Mr. Nahal had a prior conviction for a similar offence and made its intention known that the Crown would seek a minimum 14-day prison sentence. [ 15 ] The accused was not on any bail terms at all, having been summonsed to court. He did assert in his affidavit that some evidence may have become unavailable. He said that when the charges were finally sworn and he appeared in court, or Mr.

Nozick appeared for him in October, he then went to the bar where he had been drinking on the night of the offence and tried to obtain his bill which would presumably show what he had to drink. He said that the bar management informed him that without more specific information from him, it would be impossible for the club to locate this one bill from the hundreds or maybe thousands of bills that they had in their possession or in their computer. [ 16 ] That assertion of the possible loss of evidence really has no force in this argument about delay. Mr.

Nahal in his affidavit did not relate how that evidence could be significant to his defence. I say that because it may have been relevant in the past on the defence referred to as "evidence to the contrary". That defence is now extraordinarily difficult to maintain. So Mr. Nahal's assertion that he was prejudiced because he could not readily remember any more what specifically he drank and how much is not of much significance. [ 17 ] The most important issue here, however, is the evidence tendered by Mr.

Nahal about the affect of delay on what the courts have referred to as "security of the person", that is as I have talked about them, the psychological or emotional effects caused by the delay. [ 18 ] Mr. Nahal said both in his affidavit evidence and on his evidence on the witness stand that the delay in bringing the case to trial has had significant psychological and emotional effects on him. These are: 1. Stress and confusion caused by the police telling him that the charges had been dropped and then charges actually being sworn; 2. Mental anguish and feeling depressed; 3.

The service of the notice to seek greater punishment had "exacerbated his anguish". He expanded upon these effects when he was cross-examined by Crown counsel. He said that when he was told that the charges were dropped he was still worried that a warrant would issue for his arrest if someone did not appear for him; that is why he hired a lawyer. He agreed that he was not put on any medication for either depression or anxiety. He also indicated that he only went to a counsellor on two separate occasions. Nonetheless, he described his state of mind as, for example, being "the most down I have been in my life".

He said he was very concerned that he would lose his job and he would lose his licence. He said at one point, "I wake up to this every day," meaning he wakes up to the fact there is a pending trial for an impaired driving charge against him. He also indicated that these proceedings have "taken so much out of me". He describes himself as being "down and out for quite a while".

He denied Crown counsel's suggestion that he was content to let these matters proceed slowly; in fact, he replied to that suggestion by saying something to the effect, "I want this to end," meaning he wants the trial to be over. [ 19 ] So that, essentially, is the evidence that is relevant to this case and that has been presented by the accused. ANALYSIS [ 20 ] My task here is to apply the legal principles that the courts have developed to the evidence presented in this case. The length of the delay is approximately 17 months between the swearing of the Information and the trial date.

The time between the swearing of the Information and the actual day when the trial date was set would normally be regarded as "neutral intake time". I have some concern with that characterization in this case because Mr. Nahal had counsel appear for him on the returnable date of the Appearance Notice. When the Information was sworn, Mr. Nahal had thus made it known that he wished to answer to the charges in a timely manner.

[ 21 ] In such circumstances, Mr. Nahal could have been brought to the court much sooner than two months from the swearing of the Information. Nonetheless, some time would necessarily pass between the swearing of the Information and the first appearance in court. I will deal with this matter later in my judgment in terms of how I assess that time period. [ 22 ] Waiver of time periods : Mr. Nahal did not waive any time periods. [ 23 ] Inherent time requirements of the case : This was a straightforward prosecution. It should take a day or less to complete the trial.

As evidenced by the very quick time between the appearance in setting a trial date and disclosure being made by the Crown and then review of the file by defence counsel, this was all accomplished in about three weeks. [ 24 ] The actions of the accused : The accused did what he could, in my view, to arrange for an early trial date. He had counsel appear for him on the date set for the appearance on the Promise to Appear. When he was served with a summons he hired counsel who promptly set the trial date. The accused did not come back to court and require or request an earlier trial date.

That is because it was almost certain that no earlier trial date could be arranged without causing serious inconvenience to all the parties, not to mention the court. [ 25 ] Where the delay in setting

summary conviction matters is more than a year, that means that counsel who practice primarily in Surrey probably has a calendar which is likely full for that period of time. Counsel cannot be expected to monitor the court's schedules and move cases to earlier dates when it becomes clear that there may be such dates available. Both Crown and defence counsel have to

schedule their many trials and prepare for them, but they have many cases on the go. They cannot take these many cases and micro- manage them in trying to seek earlier trial dates in a comprehensive manner. It just would not work. [ 26 ] Actions of the Crown : The Crown does not seem to have done anything to delay this case except for perhaps not being diligent enough to get Mr. Nahal back before the court earlier than the date he was summonsed for. [ 27 ] Reasons for the delay : Clearly the reason for the delay here is institutional delay, lack of institutional resources.

And speaking of that topic, limited institutional resources, I would say that most of the delay here is caused by institutional delay. [ 28 ] The court calendar is full in Surrey for the next year and more. Cases are routinely over-booked on each day that court is functioning in Surrey on the assumption that many people will plead guilty and that therefore many more trials have to be set than will actually go ahead. Normally this courthouse runs very efficiently in the sense that the court time is used effectively by moving files from one court to another once one court has finished its cases early.

That is, the delay in setting trial dates in Surrey is not because the courts are booked inefficiently. [ 29 ] This delay has been built up over a long time, in the Surrey courthouse in particular. There have been shortages in the number of clerks available, there have been shortages in the number of sheriffs available and in the number of Crown counsel who can conduct the cases. As well, a shortage of judges has occurred. However, over the last six months there has been a noticeable change in that situation. More clerks have been provided, more sheriffs have been hired.

From my observation there appears to be new and more Crown counsel to conduct the cases, and I acknowledge that there have been several appointments to both Surrey and other courts in the Fraser Valley to complement the already existing number of judges. [ 30 ] The problem is, however, that the delay in the scheduling of cases took a long time to develop. The development of this long delay is analogous to the growth of an iceberg.

We may now be able to start melting that iceberg, but it will take a long time. [ 31 ] And I make just one further comment, that this is a very complex matter, assessing why a delay occurred. One can go back a long time in the history of B.C. or history of Surrey and see that, if you talk to Crown counsel, people who worked for the Crown in '70s, not me, there was a real big concern of delay then and there was an initiative by the Attorney General to stay and cut back on charges so that trials could get on early.

I recall in the 1980's, late '80s, and especially in the mid '90s being a major delay issue in Surrey which prosecutors and defence counsel and judges got together and did what they could to reduce a very serious backlog, and it worked, probably by resources being provided, and now we are back at that same situation again. It seems these things go in cycles. [ 32 ] But there are all kinds of other problems that I think have to be looked at. At one time most of the serious criminal work in this province was done in the County Courts.

County Courts were staffed by very experienced criminal practitioners mainly; they were the experts in criminal law. So the Provincial Court had a different role than it does now. With the merger of the Supreme and County Courts, it has developed that Provincial Court is really the court which deals with most criminal cases in the province; I would say well over 95 percent. [ 33 ] Criminal cases now are very complex; policing is very difficult work. Just the issue of getting disclosure, for example, has probably added to the workload of everyone in the justice system.

So that contributes probably to the length of time it takes to prepare a case, to the length of time to try a case, and the scheduling of cases. And on top of all that, the development of the Charter of Rights and arguments relating to that make trials much more complex and possibly lengthier. And then places like Surrey and Abbotsford have grown a great deal over the last 25 years. There are young populations which lead to more crime being committed because that is who the source of crime is -- young people. Charges are much more serious than they used to be in this area.

One has to look at the number of gang prosecutions and drug prosecutions and other serious crimes that come to court. All of this goes to show that the reason for the delay, while it is institutional delay and shortage of judges, at least in the past, judges and clerks, et cetera, there is a host of other factors that people have little control over and just have to adjust to, and that takes time. [ 34 ] I make these comments merely to point out that I am not standing up and pointing my finger at the government and saying it is all their fault, they should have acted in a particular way.

It is a complex problem, but the essence of the problem is if our resources were what they were, say, seven, eight years ago, this delay would not be as bad as it is now, but I am not saying it would not be a serious delay if we had those resources. [ 35 ] Prejudice to the accused : This is the critical issue in this case. As I noted earlier, the accused was not in custody, nor was he on strict bail terms. He did assert that potentially valuable evidence had become unavailable because of some delay in getting him before

the court on his first appearance. As I have said previously, I do not regard this as a significant prejudice, or prejudice at all, so I do not accept that argument. [ 36 ] The more significant facet of prejudice relied upon by the accused is what I have referred to as the psychological or emotional affect of the delay on him. The Crown argued quite strenuously that the accused was really talking about the affects of being charged with an offence that would have a significant affect on any person. In my view, the accused's evidence was credible.

I accept that he was worried and depressed about being charged and became more worried and depressed as time went by awaiting trial. I accept that he was worried about losing his job and about losing his licence. I accept that he wanted to fix an early trial date. That is evidenced by his hiring counsel and his counsel's quick setting of the trial date. [ 37 ] The accused's actions are not consistent with someone who is content to have these matters take such slow progress towards the trial.

I also accept that the accused's exposure to the normal pressures and emotional concerns that come upon being charged with a criminal offence was prolonged. That is, that these pressures, the feeling of being depressed, of being down, of being worried were significantly exacerbated by the length of time it has taken to get to trial. I find, therefore, that the accused has proved that he suffered prejudice from the long delay of this case getting to trial. [ 38 ] I will just address the one point I raised before; the length of time that it took, once the Information had been sworn, to have Mr.

Nahal appear for the first time. As I said, it seems to me that in this case the Crown probably should have got him to court earlier. In normal circumstances it would not matter if you can fix a trial date, say, in six months, but in the era of delay, every period of time becomes significant. I am unwilling, however, to attribute much more than a month of that time as being neutral intake time.

I realize this is a rough estimate, but I am just trying to make out the point in my judgment here that this particular circumstance where a person hires a lawyer to appear on the date he was told to appear, even though the police said he didn't have to come, indicating he wanted an earlier trial date, it would be preferable if the Crown could accommodate that and have the person appear earlier.

I realize, however, in a busy court like Surrey it would not be feasible to do this in every case, but I must say it is relatively rare to have someone actually hire a lawyer to show up on the date the Appearance Notice tells him to be there. [ 39 ] I merely add this to point out that the delay here is probably 17 months, and I would reduce that effective delay down to about 16 months, and saying that reducing that to 16 months is the effective delay. That, however, is six to eight months longer than the eight- to-ten-month timeframe that the Supreme Court in R. v.

Morin said should be the time in which a trial should be finished in a

summary conviction matter. [ 40 ] Thus, as I have said, the accused's evidence is credible and I find, therefore, that he suffered prejudice of the kind considered by other courts that I have quoted from above as coming from prolonged exposure to criminal proceedings. The delay itself is much longer than the guidelines set out by the Supreme Court of Canada and in this circumstance, therefore, I find that the delay was unreasonable and I direct a stay of proceedings on the Information. (RULING CONCLUDED)