R. v. Charbonneau Date:, 2015 BCPC 4

Citation: R. v. Charbonneau Date: 20150122 2015 BCPC 0004 File No: 24210-1 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALAN RAYMOND CHARBONNEAU RULING ON THE DEFENCE APPLICATION PURSUANT TO

SECTION 11 (

b) OF THE CHARTER OF RIGHTS AND FREEDOMS OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Counsel for the Crown: H. Reiner, QC Counsel for the Defendant: R. Gibbs, QC Places of Hearing: Quesnel and Prince George , B.C. Date of Hearing: April 30, May 1, 30, November 5, 6, 7, 2012; February 20, 21, 22, October 24, 25, December 2, 3, 2013;

January 20, April 22, August 11, 12, 2014 Date of Judgment: January 22, 2015 INTRODUCTION [1] Alan Raymond Charbonneau, the Defendant, is charged by Indictment on Information number 24210 in Count 1 withpossessing child pornography contrary to

Section 163.1 (4) of the Criminal Code and in Count 2 with accessing child pornographycontrary to

Section 163.1 (4.1) of the Criminal Code; both offences alleged to have occurred between January 1, 2006 and March 24,2009 at or near Quesnel, British Columbia. [2] Near the end of the trial which required 15 pre-trial appearances and occupied all or parts of 14 days of trial spread out over 21months, the Defendant filed a Notice of Constitutional Question on December 2, 2013 alleging that his right to a trial within a reasonabletime under

Section 11 (

b) of the Charter of Rights and Freedoms (the Charter) was breached and that he should be granted the remedyof a Judicial Stay of Proceedings pursuant to section 24 (1); often referred to as an Askov Application named after the case of R. v.

Askov (SCC), [1990] 2 S.C.R. 1199. [3] On December 2 and 3, 2013 counsel made their submissions on the merits of the trial and then a disagreement arose betweenthem as to whether the Court should decide the case on its merits before hearing the Askov Application. [4] Upon receiving further written and oral submissions I determined on January 20, 2014 that the Askov Application should beheard and decided before the Court turned to the consideration the evidence and submissions concerning the trial proper. [5] The Askov Application lasted a further three days spread out over four months after which Judgement was reserved.

TIMELINE [6] In light of the nature of the application before the Court it is necessary to set out the history of the case.

For reasons that willbecome apparent later in this decision the timeline will include some important dates and steps that did not involve an appearance beforethe Court. [7] In early March 2009 the Integrated Child Exploitation Unit (ICE) of the Royal Canadian Mounted Police (RCMP) becameaware of the Defendant potentially engaging in accessing, possessing or distributing child pornography on his computer as part of alarger RCMP task force investigation of child pornography. [8] On March 23, 2009 a search warrant was executed on the Defendant's residence and his computer was seized.

A preview ofthat computer's hard drive by an RCMP computer expert, Cpl. Gerry Louie located a few thumbnail images consistent with childpornography. The Defendant was arrested and released later that day without conditions. [9] On July 17, 2009 the RCMP provided a Report to Crown Counsel which indicated that although thumbnail images were on theDefendant's computer hard drive "no videos or pictures were found".

On August 27, 2009 the Information was sworn. [10] On September 29, 2009 (Appearance 1) the matter was adjourned to October 20, 2009 at Defence counsel's request. [11] On October 20, 2009 (Appearance 2) the matter was further adjourned to November 10, 2009 at Defence counsel's requestbecause he was seeking further disclosure from the Crown and wanted to review with the Defendant the possible elections andarraignment. [12] On November 9, 2009 the Crown filed its Arraignment Report indicating it would call eight witnesses and estimating the trialat two days. [13] On November 10, 2009 (Appearance 3) Defence counsel requested a further adjournment to December 15, 2009 indicatingthere was a continuing issue of disclosure. [14] On December 15, 2009 (Appearance 4) the matter was further adjourned to January 19, 2010 at the request of Defence counselwho indicated that he wished to speak to the Crown. [15] On January 19, 2010 (Appearance 5) the matter was further adjourned to February 9, 2010 because Defence counsel and theCrown had not yet met.

The Crown indicated to the Court that it believed Defence counsel had all the disclosure. [16] On February 5, 2010 the Defence filed its Arraignment Report estimating the trial at two days. [17] On February 9, 2010 (Appearance 6) the Defendant elected trial by Provincial Court Judge and entered a not guilty plea.

TheCrown and Defence counsel confirmed a trial estimate of two days. [18] On February 16, 2010 the Judicial Case Manager (JCM) advised that she had not heard from Defence counsel regarding fixingthe trial date and set February 23, 2010 to do so with indicated trial dates of December 1, and 2, 2010, and a Trial Confirmation Hearingon October 19, 2010. [19] Although the RCMP had possession of the Defendant's computer hard drive from the time the search warrant was executed onMarch 23, 2009 no further investigatory steps were undertaken until ICE was advised that the Defendant was pleading not guilty and

trial dates of December 2010 were being arranged. [ 20 ] On March 9, 2010 Defence counsel wrote to the Crown indicating his unavailability for the December 2010 trial dates and confirmed new trial dates of January 26 and 27, 2011.

Defence counsel further indicated that he would waive the time between the December 2010 and January 2011 trial dates. [ 21 ] On March 16, 2010 (Appearance 7) the Court was advised that the Crown and Defence agreed to adjourn the December 2010 trial dates because Defence counsel was double booked and indicated a new trial date of January 26 and 27, 2011 with a Trial Confirmation Hearing date of December 14, 2010. [ 22 ] During the Askov hearing the Court was advised that due to the sheer volume of child pornography investigations and the time required to complete a detailed analysis of a computer, RCMP policy directs that a detailed analysis not be done until the trial date has been set.

Upon being advised in late February 2010 that the Defendant had obtained a trial date for December 2010 Cpl. Louie began his detailed technical analysis of the Defendant's computer completing his report on March 23, 2010. [ 23 ] The lead investigator on the file had discussions with the Crown and it was decided that disclosure of Cpl. Louie's report to Defence counsel would be delayed until the exhibit analysis was completed. [ 24 ] Due to staffing issues the exhibit analysis did not commence in March 2010 when Cpl. Louie provided the necessary data to a fellow RCMP member.

Before the exhibit analysis was started that member went on maternity leave. Eventually the task was delegated to Cpl. Meghan Driscoll. She conducted the exhibit analysis between September 22, and October 1, 2010. [ 25 ] To prepare the exhibit analysis Cpl. Driscoll examined 23,644 images from which she concluded there were 363 images of child pornography and that nine of those images were accessible to the viewer.

There were a further 52 videos of various lengths containing child pornography. [ 26 ] On October 15, 2010 the RCMP provided the Crown with a CD-ROM containing what was described as a "supplemental report containing the forensic technical analysis and evidence review" being the work performed by Cpl. Louie and Cpl. Driscoll. [ 27 ] On November 22, 2010 the Crown provided further disclosure to Defence counsel including the reports of Cpl. Louie and Cpl.

Driscoll. [ 28 ] On December 14, 2010 (Appearance 8) the Trial Confirmation Hearing started but was adjourned to December 21, 2010 at the request of Defence counsel. [ 29 ] On December 20, 2010 the Crown filed its Trial Readiness Report indicating the trial would take two days and there were no outstanding disclosure issues. [ 30 ] On December 21, 2010 the Defence filed its Trial Readiness Report confirming that Charter notices would be provided within a reasonable time but indicating that the trial could not proceed because of the late disclosure of the Crown's technical reports and the need to consult an expert. [ 31 ] On December 21, 2010 (Appearance 9) the Defence notified the Court of its intention to apply for an adjournment due to late disclosure and the Crown indicated that it would not be by consent.

The matter was adjourned to January 11, 2011 for the adjournment application. [ 32 ] On January 11, 2011 (Appearance 10) the Defence application to adjourn the trial scheduled for January 26 and 27, 2011 was heard. Defence counsel submitted that there was a significant change in the case to meet given the disclosure provided in November 2010. The Crown conceded that the case may have changed somewhat. Defence counsel indicated he no longer knew what the right amount of time for trial might be.

The matter was adjourned to February 15, 2011. [ 33 ] On February 15, 2011 new trial dates of May 9 and 10, 2011 were fixed. On March 4, 2011 correspondence among the JCM, Defence counsel and the Crown confirmed those trial dates. [ 34 ] On March 29, 2011 (Appearance 11) a Pre-Trial Conference was held. Both the Crown and Defence agreed that three days for trial would be sufficient. Defence counsel advised the Court that there would be Charter issues surrounding the execution of the search warrant and the voluntariness of the Defendant's statement but that formal notice had not yet been given to the Crown.

Defence counsel indicated an intention to retain a computer expert but that had not yet occurred. [ 35 ] During the course of the Pre-Trial Conference the Court attempted to confirm the trial dates of May 9, 10, and 11, 2011 but at that point was advised by Defence counsel that he may have a two week commitment in the Supreme Court of British Columbia commencing on May 2, 2011. [ 36 ] On April 20, 2011 (Appearance 12) Defence counsel advised the Court that he did have a conflict with a commitment in the Supreme Court and further that the Defendant was at home recuperating from orthopaedic surgery.

The Crown expressed concern about the age of the file but did not oppose a further adjournment if it "doesn't fall at the feet of the Crown". The Court granted the adjournment noting it was at the request of the Defence counsel. [ 37 ] On May 3, 9, and 10, 2011, various appearances were made before the JCM fixing new trial dates of February 29, March 1, and 2, 2012, and a Pre-Trial Conference of October 26, 2011. [ 38 ] On October 26, 2011, (Appearance 13) the Crown and Defence counsel confirmed the trial dates of February 29, March 1, and 2, 2012. Defence counsel confirmed that disclosure was "no problem".

[ 39 ] On February 12, 2012, the Crown with conduct of the file was appointed to the Provincial Court and a new Crown was appointed. [ 40 ] On February 29, 2012, (Appearance 14) the trial was unable to proceed due to Defence Counsel's illness. On March 1, 2012, Defence counsel indicated his illness was persisting and the trial dates were lost. On March 1, 2012, the Court indicated its intention to get the trial rescheduled in a timely fashion due to of the age of the file.

After further consultation with the Crown and Defence counsel the dates of April 30, and May 1, 2012, were confirmed. [ 41 ] On April 17, 2012, Defence counsel provided to the Crown a Charter Notice concerning the search and seizure of the Defendant's computer. In addition, Defence counsel advised the Crown of his application to cross examine the affiant of the Information to Obtain. [ 42 ] On April 18, 2012, the Crown corresponded with Defence counsel advising that it would be applying to de-notify all witnesses other than the affiant.

On April 20, 2012, the Crown provided Defence counsel the application returnable April 24, 2012, concerning witnesses. [ 43 ] On April 24, 2012, (Appearance 15) the Crown's application concerning the denotification of witnesses was granted by the Court. [ 44 ] On April 30, 2012, the trial commenced (Day 1) with Defence counsel indicating to the Court his wish to cross examine the affiant on the Information to Obtain, in effect an oral Vukelich hearing.

The Crown opposed Defence counsel's request indicating it had received no materials and that leave must be obtained with regard to such cross examination and the granting of Voir Dire . After hearing submissions of counsel, I adopted the procedure of having counsel make submissions over April 30, and May 1, 2012, (Day 2) on the issues, with my decision on May 30, 2012. [ 45 ] On May 30, 2012, (Day 3) the Defence application for a Voir Dire and cross examination of the affiant was dismissed. I granted leave to Defence counsel to reapply with a more formal process if he wished.

August 1, and 2, 2012, were fixed for that purpose with the trial to continue in November 2012. [ 46 ] Between May 14, and June 4, 2012, the Crown and Defence counsel corresponded with the JCM with regard to new trial dates to be fixed for November 5, 6, and 7, 2012. [ 47 ] On November 5, 2012, (Day 4) the trial recommenced with Defence counsel advising that he would not be calling evidence to challenge the search warrant. The Crown called Const. Virginie Achtymichuk a member of ICE, Constable David Peddle a RCMP member stationed in Quesnel and Cpl. Alain Filotto another member of ICE and the lead investigator.

Much of the evidence that day was conducted in a Voir Dire concerning the Defendant’s statement. [ 48 ] On November 6, 2012, (Day 5) the trial continued with the entire day being occupied by the evidence of Cpl. Filotto and the entry of numerous exhibits. The Defendant’s statement was found to be voluntary and admissible as part of the trial. [ 49 ] On November 7, 2012, (Day 6) the trial continued with the entire day being occupied by the evidence of Cpl. Louie and the entry of a number of exhibits. Cpl.

Louie was qualified as an expert in computer forensic analysis including creating duplicate images of hard drives and examining the imaged hard drive for forensic evidence concerning peer-to-peer file sharing and evidence of computer users. [ 50 ] On November 7, 2012, there were discussions among the Court, the Crown and Defence counsel concerning further trial dates.

I advised that I could continue the case on November 26, and 27, 2012, but those dates were not available to Defence counsel. [ 51 ] November 8, 2012, the Crown and Defence counsel met with the JCM and fixed continuation dates for February 20, 21, and 22, 2013. [ 52 ] On February 20, and 21, 2013 (Days 7 and 8) the evidence of Cpl. Louie continued for the entirety of both days and included the entry of a number of exhibits.

That concluded the case for the Crown. [ 53 ] On February 22, 2013, (Day 9) the Court was advised by counsel that the Crown would not be in a position to cross examine the Defendant with regard to some of the exhibits entered through Cpl. Louie.

Defence counsel also advised that he needed time to digest those exhibits and that it would be a prudent use of time to start the direct evidence of the Defendant. [ 54 ] On February 22, 2013, after the initial evidence of the Defendant was called, I advised counsel that there would be some revamping of the Provincial Court’s administrative structures which might impact on my available dates going forward.

I also raised the concern that there may be need for at least three more days to conclude the trial. [ 55 ] Between March 11, and 28, 2013, counsel corresponded with the JCM regarding continuation dates with each counsel providing the dates they were available. Eventually the dates of September 3, 4, and 5, 2013, were fixed for the continuation of the trial. [ 56 ] On May 15, 2013, a telephone conference was held because the September 3, 4, and 5, 2013, trial dates were no longer available because of a change to my schedule.

After much discussion between the Court, the JCM, the Crown, and Defence counsel the dates of October 24 and 25, 2013 and December 2, 3, 4, 5, and 6, 2013 were set aside to complete the trial. [ 57 ] On October 24, 2013, (Day 10) the Defendant's evidence in direct and cross examination occupied the entire day. [ 58 ] On October 25, 2013, (Day 11) the cross examination of the Defendant continued for the entire day. At the conclusion of the Defendant's evidence Defence counsel advised the Court that he wished to consider whether or not further evidence would be called on

behalf of the Defendant and he would need two weeks to make that determination. [ 59 ] On November 25, 2013, there were various email communications among the JCM, the Crown and Defence counsel at which time Defence counsel advised that there would be no further evidence called on behalf of the Defendant but that Defence counsel was considering making an Askov application. [ 60 ] On December 2, 2013, (Day 12) Defence counsel filed a Notice of Motion and Affidavit of the Defendant in support of the Askov application. Defence counsel submissions with regard to the merits of the case occupied approximately one hour.

Crown submissions in that regard occupied the remainder of December 2, and part of December 3, 2013. [ 61 ] On December 3, 2013 (Day 13) Crown and Defence counsel made submissions regarding the order in which the Court should rule on the merits of the case and the Askov application.

Those issues were adjourned for further written submissions and a decision on the order in which the matters would be decided. [ 62 ] On January 20, 2014, (Day 14) I ruled that the Askov application should be decided first and, depending on the outcome of that application, the merits of the case decided second. [ 63 ] The total time from the laying of the Information on August 27, 2009, until January 20, 2014, was 53 months or about 4 1/2 years. [ 64 ] On April 22, 2014, Defence counsel began his cross examination of Cpl. Filotto as part of the Askov application. That evidence was interrupted by Cpl.

Filotto's illness. [ 65 ] On August 11, 2014, Defence counsel concluded his cross examination of Cpl. Filotto on the Askov application. Defence counsel and the Crown spent the remainder of the day in oral argument with the Crown expanding on their extensive written submissions. [ 66 ] On August 12, 2014, counsel concluded their oral argument on the Askov application. ASKOV APPLICATION EVIDENCE Defence [ 67 ] In support of his Application the Defendant filed an Affidavit on December 2, 2013. Portions of that Affidavit can be summarized as follows:

a) he was born on February 16, 1953, and is a long-time resident of Quesnel;

b) he has no criminal record;

c) he worked for 22 years as a Conservation Officer, until medical problems impinged on his ability to perform his duties. From July 2001 until January 2010 he was employed by Fisheries and Oceans Canada working in the area of the Aboriginal Fisheries Strategy;

d) his position at Fisheries and Oceans Canada required him to demonstrate a high level of personal integrity and after he was charged with these offences, his character and integrity were questioned by senior management resulting in him taking early retirement;

e) the length of time it has taken for the trial of this matter to conclude has greatly aggravated his personal distress including feelings of embarrassment, hopelessness, depression and impoverishment;

f) none of the delays in concluding the trial of this matter have been his personal fault; he has not personally sought or caused a delay in the proceeding;

g) he has expected throughout that he would have to testify to explain what he did on the Internet and although he gave a statement to the police over four years ago, the length the trial has taken has impacted on him because of his lack of capacity to retain in his memory a complete account of what he was thinking and why he gave certain answers in certain forms in giving his statement to the RCMP;

h) he is acutely aware that his ability to provide convincing evidence has degraded over time and his depression at times has interfered with his ability to review the documents concerning the nature of the case against him;

i) having the matter outstanding for so long has prevented him from seeking employment because he had to be available for court as and when needed and that if convicted he would become unavailable to an employer if incarcerated,

j) delays were also caused by changing judicial assignments and judicial availability,

k) he is well known in Quesnel and each adjournment was reported in the local media forcing him to deal over again with the embarrassment the case has caused him,

l) he is on a fixed income and although he had anticipated considerable expense in defending himself the inordinate delay and numerous appearances has exhausted his savings,

m) the stress of the case being drawn out has caused him high blood pressure, feelings of depression, hopelessness and anxiety and anticipation of an old age of disgrace and poverty. [ 68 ] In paragraph 14 of the Affidavit the Defendant said:

14. My life has been in limbo for nearly five years as this case dragged on and dominated my life to the virtual exclusion of any pleasures. None of these delays have been my personal fault. I have been available for any and all proposed trial dates. I feel I am the only person making any effort to get this matter dealt with but I feel I have been deemed of “no consequence” by the system and lost in the bureaucracy.

I strongly feel, and fear that, as a result of the many delays, my right to be tried within a reasonable time has been severely eroded and seriously infringed upon, causing my defence to be prejudiced to the point that it may even make the difference whether I am convicted or acquitted, which is intolerable to me. [ 69 ] The Defendant was not cross-examined about his Affidavit by the Crown.

Crown [ 70 ] In support of its position, the Crown filed two Affidavits; one from Gary Hansen, Crown counsel, which simply set out various correspondences and other materials regarding various court appearances and the fixing of court dates. [ 71 ] The other affidavit was from Cpl. Filotto, who described the various steps taken in analyzing and preparing the technical reports concerning the evidence of child pornography found on the Defendant's computer and how that information was prepared for disclosure to the Crown and Defence counsel. [ 72 ] Cpl. Filotto was cross-examined by Defence counsel at length. A

summary of his cross examination evidence relevant to the Askov application included:

a) the RCMP operational practice was, at the time, not to undertake detailed analysis of any seized computer until there was clear information and that the accused was going to contest the charges,

b) the operational practice was based on a risk management protocol to work on the most urgent files first,

c) although ICE had nine investigators there were not unlimited resources and bottlenecks sometimes occurred because some cases have millions of images and thousands of videos to analyze,

d) the RCMP were aware that the disclosure provided to Defence counsel on July 17, 2009, was incomplete for the purposes of trial but was complete enough for charge approval,

e) locating some child pornography images on a computer is necessary to support the laying of charges but a more detailed technical analysis provides more evidence at a later date,

f) in this case the disclosure provided on July 17, 2009, indicated very limited child pornography images which was considerably different than the much greater number located in the detailed technical analysis,

g) ICE was aware that there were several adjournments granted to deal with matters such as disclosure and plea, and that the estimation of trial length is based on the nature of the disclosure and that providing more detailed disclosure at a later date might impact on the scheduling of the trial,

h) ICE did not provide detailed information to the Crown that the lack of human resources would delay providing complete disclosure,

i) he was under the belief that so long as the expert reports were provided at least 30 days before the trial that was sufficient notice and in compliance with the Code provisions concerning both expert reports and disclosure requirements,

j) in the four years he was with ICE he worked on hundreds of cases but was only called upon to testify twice because the majority of cases are resolved without a full examination of an accused's computer. THE LAW The Charter [ 73 ]

Section 7 of the Charter states: 7. 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 principals of fundamental justice. [ 74 ]

Section 11(

b) of the Charter states: 11. Any person charged with an offence has the right . . . (

b) to be tried within a reasonable time.

[75] Section 24(1) of the Charter states: 24(1) Anyone whose rights and freedoms, as guaranteed by this charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Case Law [76] Crown counsel presented the Court with numerous case authorities with regard to Askov applications. In addition, the Courtreferred counsel to a number of other cases it was aware of and would be considering. Those cases, where indicated a

summary of thenature of the charges, the delays, and where the stay was granted or refused include: a. From the Supreme Court of Canada: i. R. v. Godin 2009 SCC 26 - Sexual assault, 30 months ii. R. v. Morin (SCC), [1992] 1 S.C.R. 771 - Impaired/.08, 14.5 months iii. R. v. Slaney [1992] 2 S.C.R. 228 - Gross indecency, 15 months, stay confirmed by Supreme Court of Canada iv. R. v. Askov (SCC), [1990] 2 S.C.R. 1199 - Extortion, 30 months v. R. v. MacDougall (SCC), [1998] 3 S.C.R.45 - Indecent assault, 22 months, stay refused by Supreme Court ofCanada vi. R. v. Conway (SCC), [1989] 1 S.C.R. 1659 vii. R. v.

Mills (SCC), [1986] 1 S.C.R. 863 b. From the Courts of Appeal: i. R. v. Stillwell 2014 ONCA 563 - Child pornography, 26 months, stay refused on appeal ii. R. v. Wilson 2013 SKCA 128 - Impaired driving, 25 months, stay refused at trial and on appeal iii. R. v. Baldini 2012 BCCA 206, 17 months, stay refused at trial and on appeal iv. R. v. Kugathasan 2012 ONCA 545 - Impaired driving, 20 months, stay refused on appeal v. R. v. Li 2012 ONCA 291 - Aggravated assault, 19 months, stay refused at trial and on appeal vi. R. v. Ghavami 2010 BCCA 126 - Drug conspiracy, 45 months, stay refused vii. R. v.

Austin 2009 ONCA 329 - Sexual assault, 25 months, stay refused viii. R. v. Guilbride 2006 BCCA 392 - Drug conspiracy, 62 months, stay refused ix. R. v. Yelle 2006 ABCA 160 - Income Tax offences, 43 months, stay refused on appeal x. R. v. Elliott (2003) (ON CA), 181 C.C.C. (3d) 118 (Ont. C.A.) - Murder, 50 months, stay refused on appeal xi. R. v. Bazinet 2002 BCCA 206 - Sexual assault, 37 months, stay refused at trial and on appeal xii. R. v. Kwok 2002 BCCA 177 - Drug trafficking, 48 months, stay refused at trial and on appeal xiii. R. v.

Stewart 2000 BCCA 339 - Indecent assault, 48 months stay refused at trial and on appeal xiv. R. v. Loewen {1999} (MB CA), 4 W.W.R. 429 (Man. C.A.) - Money laundering, 33 months, state refused attrial and on appeal xv. R. v. Heikel 1992 ABCA 142 - Theft, 30 months, stay refused on appeal xvi. R. v. Slaney (1992) (NL CA), 75 C.C.C. (3d) 385 (Nfld. C.A.) - Gross indecency, 15 months stay refused on

appeal xvii. R. v. Atkinson (1991) (ON CA), 68 C.C.C. (3d) 109 (Ont. C.A.) - Fraud, 23 months, stay refused on appeal xviii. R. v. Bennett (1991) (ON CA), 64 C.C.C. (3d) 449 (Ont. C.A.) - Assault, 15 months, stay refused at trial and onappeal c. From the Trial Courts: i. R. v. WRS 2013 BCSC 1511 - Sexual assault, 22 months, stay refused ii. R. v. Pandher 2013 ABPC 267 - Impaired driving, 21 months, stay refused iii. R v. Jordan 2012 BCSC 1735 - Drug trafficking, 49 months, stay refused iv. R. v. Purchase 2012 BCSC 208 - Drug trafficking, 44 months, stay refused v. R. v.

Hammer et al 2011 BCPC 234 , 2011 BCPC 0234 - Possession for the Purpose of Trafficking, 42.5 months vi. R. v. Kaiser and Kaiser 2011 BCPC 168 , 2011 BCPC 0168 - Assault causing bodily harm, assault and threatening, 27months vii. R. v. Lahiry 2011 ONSC 6780 - Impaired driving, 11 months, stay refused on appeal viii. R. v. Vance 2010 ABPC 260 - Impaired driving, 35 months, stay refused ix. R. v. Pearson 2009 BCSC 1860 - Drug trafficking, 35 months x. R. v. Creig 2009 ABPC 284 - Impaired driving, 22 months, stay refused xi. R. v. Adam 2006 BCSC 350 - Drug conspiracy, 59 months, stay refused xii. R. v.

Neil 2001 ABQB 746 Obstruction of justice, stay refused THE MORIN FRAMEWORK [77] There is a very thorough discussion about s. 11(

b) of the Charter by Romilly J. in Adam where he says at paragraphs 118through 124 (some cites omitted by this Court): G.

SECTION 11(

b) OF THE CHARTER (

i) Trial Within a Reasonable Time [118]

Section 11(

b) of the Charter guarantees an accused the right to be tried within a reasonable time. Specifically, it protectsan accused’s liberty, security of the person and right to make full answer and defence. It is up to the defence to show how those interestshave been prejudiced as a result of the Crown’s failure to bring the accused to trial within a reasonable time: [119] In Ferguson at paras. 128-31, S.B. Durno J. gave an excellent

summary of the law surrounding s. 11(b): The purpose of s. 11(

b) is to expedite trials and minimize prejudice, not avoid trials on the merits: Morin. In R. v. Qureshi, Khanand Giavorpoulos , Laskin J.A. summarized the legal framework for s. 11(

b) applications. The

section aims to protect the individualrights of the accused, as well as the rights of society. It protects three individual rights: the accused's right to security of the person, byminimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty, by minimizing the effects of pre-trialcustody or restrictive bail terms; and it protects the accused's right to a fair trial, by ensuring that the proceedings occur while evidence isfresh and available, citing Morin.

Section 11(

b) also seeks to protect two societal rights. First, it protects the public's interest in having laws enforced, by having those whobreak the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(

b) seeks to protect the public's interest inhaving those accused of crimes dealt with fairly. MacDougall. As the seriousness of the offence increases, so does the societal demandthat the accused be brought to trial: Morin. The determination of whether s. 11(

b) has been infringed requires the court to balance the individual and societal goals with the lengthand causes of the delay. While the trial judge may not be required to specifically mention she or he has taken into consideration society's interest in the prosecution, it must be clear from the Reasons that that vital consideration has been taken into account Kovacs-Tatar ; Qureshi, The

section is framed in terms of reasonableness, not whether the delay was of a desirable length: Seegmiller. Courts have refrained

from creating limitation periods for certain types of offences, leaving judges to exercise judgment having regard to the factors noted below. The exercise was described in Morin as follows: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical formula but rather by a judicial determination balancing the interests which the

section is designed to protect against the factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable. [120] In R. v. Stewart (B.C.) , Braidwood J.A. emphasized the balancing act that is required when examining an alleged breach of s. 11(b).

Courts are required to assess the specific circumstances of each case in balancing the right of an accused to be tried within a reasonable time with the need of society to have those charged with an offence be tried in a court of law. (ii) The Reasonableness of the Overall Delay [121] To determine if an overall delay is reasonable, consideration should be given to the following factors as set out by Sopinka J. in Morin at p. 787: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. [122] In Gordon, Hill J. further elaborated on the reasonableness of a delay, noting at paras. 18-21: Because there is no exhaustive list of factors, these factors are not immutable -- the facts of individual cases are of especial importance: MacDougall , Conway . Time alone is not the determinative factor - a more responsive functional and flexible approach examines the total delay in light of the explanations for the constituent parts of the delay.

Accordingly, while some piecemeal analysis of the entire time period is necessary, the ultimate question remains the reasonableness of the overall delay. The Crown bears the responsibility of bringing accused persons to trial. While there is no obligation on an accused person to press for a trial, any action or inaction by an accused inconsistent with the desire for a speedy trial is relevant to the assessment of any prejudice said to be suffered by the delay to trial. The applicants carry the onus of establishing a breach of their s. 11(

b) Charter right: Conway and Smith Where the evidence does not establish, on a balance of probabilities, whether or not there was a Charter violation, the court must conclude there was not: Durette et al . Integral to the discharge of the burden of persuasion, is the burden of production upon the applicants to adduce evidence, where necessary, to establish explanations for the delays occasioned in the course of the history of the litigation. [123] In R. v. Seegmiller Cronk J.A., for the Court, noted at 355: The determination of what constitutes a "reasonable" time for trial under s. 11(

b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the "reasonableness" of delay and in balancing the sometimes competing interests protected by s. 11(

b) will vary from case to case. Not every pretrial delay will constitute unreasonable delay for constitutional purposes. [124] A stay of proceedings should only be ordered “’in the clearest of cases’, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.”: O'Connor at para. 82. The Stillwell Decision [ 78 ] Subsequent to the conclusion of counsel submissions the Court became aware of the Ontario Court of Appeal decision in Stilwell .

The facts of that case are in many respects similar to the case at bar and as such some of the comments and findings of both the trial Judge and Court of Appeal are worthy of consideration here.

[79] Mr. Stilwell was charged with distributing, possessing and accessing child pornography. 26 months had elapsed between thedate the Information was sworn and the anticipated conclusion of his trial. The trial Judge found that 12.5 months of the delay wasattributable to the Crown and resulted in actual prejudice and entered a stay of proceedings. [80] Much of the analysis of the trial Judge concerning the time attributable to the Crown (which was adopted by the Court ofAppeal) had to do with the time it took the police to analyze the available evidence and provide full disclosure to the defence.

That timewas 14 months although the actual analysis required to provide the disclosure occupied only 25 hours of police time. [81] The trial Judge concluded that the delay in providing disclosure was a result of lack of police resources and attributed 5.5months of the delay to the Crown. That finding was agreed with by the Court of Appeal. [82] The trial Judge then went on to conclude that based in part on the accused's affidavit and the total amount of delay the accusedsuffered prejudice to the point where a stay of proceedings was appropriate.

In arriving at that conclusion the trial Judge said atparagraph 34 of the trial decision (as quoted by the Court of Appeal): Society's interest in ensuring that a matter is tried on its merits must be given due consideration by the court. According to the SupremeCourt of Canada in R. v. Sharpe 2001 SCC 2 , [2001] 1 S.C.R. 45, charges relating to child pornography are crimes of enormousgravity, affecting both the victims and society as a whole.

At the same time, while the court held that society has a substantial andcompelling interest in having such cases tried on their merits, the rights of the accused persons must be properly respected. The public'sconfidence cannot be allowed to be undermined by a justice system that permits its citizens, deemed innocent until proven guilty, tolanguish untried on an indefinite basis. In my view, it is not only in Mr. Stilwell's interests, but also in the public's interest that he nothave to wait over 26 months to have his charges finally concluded.

This wait surpasses the bounds of tolerability. [83] The Court of Appeal disagreed with that analysis as it pertained to: a. the amount of prejudice suffered by the accused, b. the appropriate consideration of all the constituent time components of the total delay, and, c. the balancing of the accused Charter rights with that of society's desire to have serious cases like those involving childpornography adjudicated on the merits. [84] On that basis the Court of Appeal granted the Crown's appeal and remitted the matter back for trial. [85] In doing so, the Court of Appeal referred to the recent Supreme Court of Canada decision in R. v.

Spencer 2014 SCC 43 where,in dealing with the analysis of a s. 8 Charter infringement Cromwell J. said at paragraph 80: …Society undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime whichimplicates the safety of children. SUBMISSIONS Defence [86] Defence counsel’s submissions can be summarized as follows:

a) the failure of the Crown to provide complete disclosure of the technical reports prepared by the RCMP until 20 months after theDefendant's computer was seized should be allocated by the Court, in part, as something other than inherent time,

b) the inherent time to the first trial date and the required adjournment due to late disclosure of the technical reports might havebeen reduced if full disclosure had been provided in a timely fashion,

c) the initial Crown disclosure on which it and Defence counsel based their estimates of trial length was a grossly inadequate andmisleading; inadequate because it did not give the Defendant a clear picture of the case he had to meet and misleading because it did notindicate that more disclosure was to come. In fact, the Crown advised the Court that disclosure was complete some 10 months before thefinal disclosure was provided to the Defendant resulting in an inadequate estimation of the time needed for trial,

d) the time from the first appearance in September 2009 until trial dates were selected in February 2010 was wasted becauseDefence counsel was requesting further disclosure and was told that disclosure was complete when in fact the further disclosure was noteven being prepared by the RCMP until after February 2010,

e) although the RCMP had the Defendant's computer for many months the actual work done to prepare the technical analysis byCpl. Louie and the exhibit analysis by Cpl. Driscoll actually took a relatively brief and reasonable period of time. However, once thatcomplete disclosure was provided it drastically changed both the nature and gravity of the case the Defendant faced,

f) the RCMP's deliberate policy to not provide full disclosure of reports until a month before the trial date has not been acceptablyexplained by the Crown and is not a correct

interpretation of the law of disclosure. The Crown must bear the responsibility for that

RCMP practice when delay is being considered,

g) even though further disclosure in the form of Cpl. Louie’s report was available in the spring of 2010 the RCMP and the Crown made the decision not to disclose that information to Defence counsel at that time,

h) there clearly were times during the various appearances and the conduct of the trial where Defence counsel's availability due to other court commitments or illness delayed the progress of the trial but not to the extent alleged by the Crown,

i) the Crown has the benefit of having only one master and is in effect the largest law firm in British Columbia so when it comes to fixing dates the Crown regularly has far more available dates then does an active and busy Defence counsel. The Defendant should not be penalized because his choice of counsel happens to be one with the breadth of knowledge and experience to defend him but also having responsibilities and duties to many other clients,

j) the fixing of trial dates and continuations of trials in the Provincial Court is done by the Judicial Case Manager, a professional trial scheduler. The JCM consults the Court's calendar and advises counsel of the Judge's availability at which time counsel confirm on which of those dates they may be available. That process is an acquiescence to the inevitable and not a waiver by the Defendant,

k) the Crown's submission that Defence counsel should demand an appearance before the Court and request earlier continuation dates for a trial already underway is an impractical waste of counsel and the Court's time and an insult to the professionalism of the JCM,

l) there were some difficulties with the Court's availability as a result of the Judge's change of duties and responsibilities part way through the trial,

m) the Crown's submission that it is up to Defence counsel to estimate the appropriate total length of a trial is not appropriate and is without foundation. The Court must examine each party's estimate of trial time and compare that to the length of time taken to present the Crown and Defence case before coming to any conclusions as to who may be responsible for delays and continuations,

n) the Defendant has suffered actual serious prejudice as described in his affidavit, and the Court can also infer prejudice arising from the overall length of the delay in getting the trial concluded,

o) the Defendant has not used the issue of delay as a weapon. He simply seeks the appropriate remedy available to him for a breach of his Charter right to have his trial in a reasonable time. That did not occur in this case for a plethora of reasons not all of which can be attributed to the Defendant. Crown [ 87 ] The Crown prepared extensive written submissions on the various aspects of an Askov application crossed referenced with the large volume of cases provided and further supplemented with oral submissions. Those submissions on the topics addressed can be summarized as follows: In General

a) the burden lies with the Defendant to show that any particular combination of delay attributable to the Crown and any intolerable institutional delay had so unreasonably delayed the process beyond the inherent time requirements that the prejudice from the delay (and not the charges) outweighs the interests of society in seeing justice done fairly, quickly and efficiently and having the case adjudicated on the merits, 1. Length of the Delay

b) the length of delay in this case necessitates an inquiry,

c) any periods of time waived by the Defendant must be deducted from the total elapsed time as part of the analysis,

d) unless there is evidence of acquiescence to the inevitable a consent to a trial date by the Defendant is a waiver. The waiver can be expressed or implied depending on the circumstances, 2. Waiver

e) it is up to the Defendant to let the Court know if he is concerned about delay or repeated adjournments of the trial. If that is not done the Defendant waives any delay. 3. Reasons for the Delay a. Inherent Time Requirements

f) there are three generally accepted time periods where some delay is inevitable. First, the inherent time requirements for intake activities. Second, the court time required to try the case including any adjournments required to find additional time when initial estimates prove inaccurate. Third, the complexity of the case. These time factors are neutral and not systemic,

g) the responsibility for proper time estimates for trial fall both on the Crown and the Defence. In this case the Crown does not acknowledge or admit to any bad time estimates of its case. It was the underestimation of Defence counsel which significantly affected the overall length of the trial,

h) inherent time requirements are to be considered neutral in the overall calculation of delay,

b. Actions of the Accused

i) some actions of the Defendant fall short of waiver but should not count against the Crown in the calculation of unreasonable delay,

j) in this case those actions include but are not limited to the time required to address the oral Vukelich application and the delay in bringing the Askov application,

k) the actions of Defence counsel must be attributed to the Defendant. The Court should give little notice to the Defendant's attempt to disassociate his actions from that of his counsel, c. Actions of the Crown

l) full disclosure is not required in order for Defence counsel to advise and receive instructions from the Defendant. When full disclosure was provided it did not change the nature of the case but rather the scale of the case as a result of an enhancement of the evidence being provided,

m) there was some delay attributable to the Crown resulting from the late disclosure of the technical reports in November 2010. It is clear that those reports should have been and could have been provided earlier,

n) on that basis the Crown is responsible for the adjournment from January 26, 2011, to May 9, 2011, but not any subsequent adjournments due to a miscalculation of trial length,

o) the late disclosure was not a result of any negligence or malfeasance on the part of the RCMP but it was a mistake of judgment,

p) it would be an enormous waste of precious RCMP resources to undertake extensive, costly and time consuming computer analyses which often prove to be unnecessary,

q) in this case despite the delay in full disclosure the trial could not have proceeded sooner than January 26, 2011, due to Defence counsel's unavailability, d. Limitations on Institutional Resources

r) in this case the issue of institutional or systemic delay is not a major component of the overall delay,

s) when the case is not completed within the time scheduled it should be given priority and any delay arising until the case continues should be treated as inherent delay or institutional delay or combination of both,

t) where there are repeated adjournments because Defence counsel has not properly estimated the total length of the trial he should not be able to invoke those adjournments as being systemic because he should have properly turned his mind to what evidence would be challenged, how long that would reasonably take and what other evidence might needed to be called, e. Other Reasons for Delay

u) in this case Defence counsel failed to properly estimate the time required to conclude the trial and, additionally brought forward a series of revolving applications on a variety of matters, often on short notice, when the issues were well established and understood early in the case.

Summary of Time Allocations [ 88 ] The Crown also made submissions on the calculation of time allocations described in the Morin framework. They can be summarized as follows:

a) the total time involved is 51 months being from August 27, 2009, until December 2, 2013

b) the time between the laying of the Information, August 27, 2009, and the first trial date being fixed on February 16, 2010, was approximately 5 1/2 months and is inherent time

c) the time from February 16, 2010, until the first set trial date of December 1, 2010, was approximately 9 1/2 months and is inherent time,

d) due to Defence counsel's unavailability for the December 1, 2010, trial date the time from that date until the next trial date of January 27, 2011, approximately 2 months, is waived time,

e) the late disclosure of the technical reports in November 2010 precipitated the adjournment of the trial from January 27, 2011, to May 9, 2011. That approximately 3 1/2 months is attributable to the Crown,

f) Defence counsel's unavailability for the start of the trial on May 9, 2011, as a result of being double booked required the trial be adjourned to February 29, 2012. That 9 ½ months is waived time,

g) the trial dates of February 29, March 1, and 2, 2012, were lost due to the illness of Defence counsel. Rescheduling the matter to commence on April 30, 2012, was with Defence Counsel's unequivocal agreement. That 2 months is waived time,

h) Defence Counsel's filing of a Charter Notice on April 17, 2012, must be considered in light of Defence counsel's confirming to the Court on December 20, 2010, that all Charter notices had been provided or would be provided in a timely fashion. As such the filing

of the Charter Notice very late in the proceedings and without the proper requisite material are at least actions of the Defendant or more properly waived time

i) the time necessary to hear, consider and have the Court provide a decision on the Defendant's Charter Notice occupied from April 29, to May 30, 2012. That 1 month is inherent time,

j) the time from May 30, 2012, to the continuation of the trial on November 5, 6, and 7, 2012, was consented to by Defence counsel. That 5 months is waived time,

k) at the end of the trial days in November 2012, further dates of February 20, 21, and 22, 2013, were fixed. That 3 ½ months is either waived time or neutral time,

l) on February 20, 2013, due to issues arising from the examination of Cpl. Louie the nature of the case expanded requiring rescheduling of the conclusion of the trial,

m) the trial was further adjourned from February 22, 2013, to September 3, 2013, and that adjournment was agreed to by Defence counsel. That 6 ½ months is waived time,

n) due to an unexpected unavailability of the Court for the September 2013 dates a conference between the Court and counsel on May 15, 2013, canvassed the number of available rescheduling dates. Defence counsel eventually agreed to dates in October 2013 and December 2013. That 6 ½ months is waived time.

o) The only time in the 51 months which was not either neutral or waived time was from January 26, 2011, to May 8, 2011, approximate 3 1/2 months which is a attributable to the Crown. 4. Prejudice to the Defendant [ 89 ] Although the Crown did not cross examine the Defendant on his affidavit in support of the Askov application the Crown submissions on the issue of prejudice to the Defendant can be summarized as follows:

a) the Court is not obliged to accept any evidence tendered even if it is not contradicted and unchallenged. The Court is entitled to require and expect some independent proof of what is asserted where such proof can reasonably be expected to exist and be available,

b) the Defendant's affidavit is replete with untruths, overstatements, unsubstantiated assertions and irrelevancy,

c) inferred, as opposed to actual, prejudice is only found where there is a very long unreasonable delay substantially longer than can be justified on an acceptable basis,

d) even if there is actual prejudice from such things as financial expenditures, stress, anxiety or memory diminishment those aspects cannot be relied upon by the Defendant if the delay itself has been caused by him,

e) the Defendant's claims of real prejudice are diminished by the fact that he did not bring those concerns to the attention of the Court until the very end of the trial. If the Defendant suffered the prejudice he alleges, he offered no explanation as to why no effort was made to alleviate that prejudice by bringing the Askov application sooner,

f) even if the Defendant can demonstrate prejudice, the stay application for unreasonable delay must show serious prejudice,

g) Crown acknowledges that there is some prejudice to the Defendant in this proceeding but that prejudice arises from the charges themselves and not the time it is taken to adjudicate them,

h) the existence of prejudice, either actual or inferred, is merely one aspect in the balancing exercise,

a) Liberty

i) there are no liberty interests to be addressed because the Defendant has been out of custody without any conditions since his arrest,

b) Right to Make Full Answer and Defence

j) the Defendant's assertions in his affidavit that he has wished a speedy trial and is not at fault for any of the delays must be considered in light of the inseparability of the actions of the Defendant and his counsel,

k) the Defendant's assertions that he was the only person making an effort to get the matter dealt with quickly must be considered in light of the steps taken by the Crown and the Court to expedite the matter by offering numerous available continuation dates to Defence counsel, most of which were unavailable to him,

l) the Defendant's assertions that the time taken for the trial to proceed has impinged upon his memory is more properly attributed to the Defendant simply neglecting to review the extensive disclosure that was provided in order to refresh his recollection and appropriately prepare himself to give evidence,

m) in this case the Crown’s evidence primarily consisted of documents and the Defendant's statement. Much of the Defendant's

evidence was rooted in his assertions that he did not know what he was downloading, that he didn't pay much attention to file names he was accessing and he wasn't looking for anything in particular while surfing the Internet,

c) Security of the Person

n) it would not be unexpected for anyone charged with an offence to suffer from some forms of stress, distress, embarrassment and related physical manifestations. However, the Defendant has provided no independent evidence to support his assertions of emotional, mental, physical or medical distress arising from the laying of the charges and the time it has taken for the trial to conclude. In fact, several of the physical and medical stressors he complains of predate the charges,

o) the Defendant's chronic medical conditions which were, in part, being treated between when he was charged and the end of the trial, were known to Defence counsel and provided to the Court but they did not interfere with the continuation of the trial at any point in time,

p) the Defendant's assertions that the trial interfered with his ability to seek and maintain employment must be discounted because he left one previous employment due to his medical conditions which restricted his mobility and he left a subsequent employment because he was charged with the offences before the Court and not as a result of the delay in having those charges resolved,

q) claims by the Defendant that the delay in concluding the trial has financially exhausted him are not substantiated. It is not the delay in concluding the trial that has caused any extraordinary financial expense to the Defendant but rather the length of the trial attributable, at least in part, to his counsel's failure to properly estimate trial length and the bringing of various applications late in the proceedings which might not have been anticipated when the trial commenced,

r) the assertions by the Defendant that media coverage of the trial, including each time it has been adjourned, has caused him recurring embarrassment was not substantiated by any independent evidence and would more properly be attributed to the charges he faces and not the length of time the matter has taken to conclude. DISCUSSION APPLICATION OF THE MORIN FRAMEWORK [ 90 ] The factors set out in Morin are not exhaustive and the unique facts of each case are particularly important in the overall analysis.

Although some consideration of the individual factors is inevitable and of assistance the ultimate determination is based on the reasonableness or unreasonableness of the overall delay. 1. Length of the Delay [ 91 ] The time from the swearing of the Information, August 27, 2009, to the end of counsel's submissions on the merits of the case, December 3, 2013, was just over 51 months. However, the end of a trial is not when submissions conclude but rather when the Court renders a decision.

Given the length and detail of the evidence presented it would be reasonable for the Court to take approximately 3 months to provide the trial decision and as such I am using the figure of 54 months for the total length of delay. 2. Waiver [ 92 ] Any time periods that the Defendant clearly and unequivocally waives must be deducted from the total delay before determining if the remaining delay is reasonable or unreasonable. [ 93 ] The Crown submits that a vast majority of the various components of delay in this matter should be found to be waiver on the part of the Defendant.

Defence counsel acknowledges that due to his other client commitments there were periods of time that must be determined to be waived but not to the extent suggested by the Crown. [ 94 ] The time that was lost due to waiver was in large part the result of Defence counsel not having readily at hand accurate information about his own calendar. Given the modern technology available today it is worrisome that counsel would not be able to ascertain and advise the Court within minutes what his

schedule looks like into the future and if other commitments have been made and confirmed. A delay of days, or even weeks, before advising the Court of scheduling conflicts impinges on the Court’s ability to ensure cases are dealt with fairly and timely manner. [ 95 ] Having reviewed the timeline and counsel submissions I determine the following time periods to be waived by the Defendant :

a) from December 1, 2010, to January 26, 2011, due to Defence counsel being double booked – 2 months,

b) from May 9, 2011, to February, 29, 2012, due to Defence counsel being double booked - 9.5 months [ 96 ] I specifically reject the submissions of the Crown that all of delays occasioned by inadequate trial length estimates by counsel should rest at the feet of Defence counsel as waiver. [ 97 ] The scheduling of all cases in the Provincial Court is done by Judicial Case Managers who work under the direction and authority of the Chief Judge and his delegate, the Regional Administrative Judge. This scheduling model effectively manages both Judicial and court resources to ensure the average of over 1,100 cases dealt with annually by each Provincial Court Judge are scheduled appropriately.

[ 98 ] Such case management by the JCM is even more crucial in the Northern Region of the Court where 17 Judges serve 31 communities spread out over an area the size of Alberta, in all three divisions of the Court’s jurisdiction criminal, civil and family. [ 99 ] In addition, the JCM’s work under a set of Directives and Policies issued by the Chief Judge that require cases to be assigned and scheduled under a set of priorities to ensure equity among all litigants and to ensure certain higher priority matters are heard in the most timely fashion.

Higher priority cases include child apprehensions, family matters involving protection issues, youth criminal matters, bail applications and in custody criminal trials. [ 100 ] In larger centers with many judges and many scheduling options it may be appropriate and available for counsel to press for earlier trial dates than those being proposed by a JCM.

However, in this case due to my other duties I was not always available and the dates presented to counsel by the JCM after consultation with my calendar were the only dates that could be offered. [ 101 ] For the Crown to submit that Defence counsel should demand an audience with the Court to press for other dates ignores the reality the scheduling demands of meeting the needs of all litigants and would have simply absorbed even more precious court time to no avail. [ 102 ] Acceptance by counsel of trial dates provided by the JCM in these circumstances is not a waiver but neither is it the fault of the Crown.

It is either inherent or systemic depending on the circumstances. [ 103 ] The Crown’s submission, in the face of the reality described above, that Defence counsel must parrot certain “magic words” of discontent in order to avoid being found to have waived a certain time period unreasonably calls into question the professionalism of both the JCM and Defence counsel. [ 104 ] The Crown submitted that there must be evidence to counter the possible inference of waiver. The case law adopts that approach and I agree.

Having said that, it is also reasonable for the Court to take judicial notice of its own internal Directives and Policies and the scheduling challenges faced by the JCM particularly when the Judge in question is tasked by the Chief Judge with the oversight and administration of those matters. [ 105 ] I agree with the Crown’s contention that the Defendant should not be permitted to delay a case until the evidence grows cold and then rely on that delay to support an Askov application.

If that had been the intent of the Defendant here that approach would have been fruitless because of the documentary nature of the evidence. In any event there is no evidence that the Defendant adopted that strategy. 3. Reasons for the Delay

a) Inherent Time Requirements [ 106 ] The time from the swearing of the Information, August 27, 2009, to the first date set for trial, December 1, 2010 -15 months could often be described as inherent time. [ 107 ] If this case had been a complex case involving multiple accused, multiple counsel, multiple counts, or was extraordinarily complicated from an investigatory perspective, a 15 month period between the swearing of the Information and the commencement of the trial would not be out of the ordinary although somewhat in excess of the Morin guidelines. [ 108 ] However, this case was not overly complex.

In fact, the Crown suggested the case could have successfully proceeded even without the technical reports prepared by Cpl. Louie and Cpl. Driscoll. There is no doubt that computer-based child pornography cases require some sophisticated methods of investigation and the necessary technical expertise is required when examining a computer hard drive but that does not make the case complex. [ 109 ] During his evidence in the Askov application Cpl. Filotto acknowledged that the exhibit analysis performed by Cpl.

Driscoll did not require much, if any, in the way of specialized training other than to understand the definition of child pornography in the Code and then apply that definition to the images reviewed. [ 110 ] As I will describe further under the heading Actions of the Crown I allocate 8 of the initial 15 months, (to April 2010) as inherent time with the remaining 7 months (April to December 2010) being attributed to the Crown. [ 111 ] A second portion of inherent time is from November 7, 2012, to February 20, 2013, - 5 1/2 months. [ 112 ] A third portion of inherent time is from February 22, 2013, to September 3, 2013, - 7 months. [ 113 ] A fourth portion of inherent time is from October 25, 2013, to December 2, 2013, - 1 1/2 months. [ 114 ] A fifth portion of inherent time is from December 3, 2013, to March 3, 2014, when a decision on the trial could likely have been rendered - 3 months. [ 115 ] I reject the submissions of the Crown that all of the delays in concluding the trial that arose after the initial two days in April/May 2012 should be attributed to the Defendant. [ 116 ] Both the Crown and Defence counsel are Queen's Counsel with, respectively, 37 and 38 years’ experience at the Bar. [ 117 ] The Court should be able to reasonably expect that counsel with such experience would have an intimate knowledge of the nature of their own case and at least some anticipation of the nature of the other party’s case. [ 118 ] The Crown initially anticipated calling eight witnesses and optimistically estimated two days for trial.

When the Crown’s case

was called there were 4 witnesses and their evidence took 5 days. There was not any unnecessary or prolix cross examination by Defencecounsel although the cross examination was thorough. [119] The Defence is responsible for a further 5 days of trial time, 2 days at the beginning pursuing the Vukelich application and afurther 3 days for the Defendant’s evidence.

The Crown’s cross examination of the Defendant was detailed but appropriate given thetopics that had to be covered. [120] A further cumulative 4 days of the trial were occupied by counsel’s submissions and the Court’s various decisions and rulings. [121] When all the time is considered this trial took almost 5 times the longest estimate of counsel. Furthermore, once the trial gotunderway counsel underestimated the remaining time needed on three separate occasions. [122] One of those occasions was the realization by counsel that some aspects of the report and evidence of Cpl.

Louie took themdown an unexpected path. Although that sense of surprise might be reasonable of Defence counsel, given the volume of disclosure, itshould not have surprised the Crown given it was presented by their witness and was in existence for a considerable time. [123] It is clear from the case law that I am duty bound to assess many of the periods I have just described as inherent time and I willdo so. However, to anyone outside the court system looking in it might appear that both the Crown and Defence counsel should bearsome responsibility for the inaccurate time allocation.

b) Actions of the Accused [124] There are two time periods that do not amount to a waiver but are attributable to the actions of Defence counsel. The first ofthese occurred when Defence counsel fell ill on February 29, 2012, resulting in the commencement of the trial being adjourned April 30, 2012, - 2 months. [125] The second was the time taken at the beginning of the trial to hear and decide the Defendant's Vukelich application from April30, 2012, to May 30, 2012, - 1 month. That matter should reasonably have been in the contemplation of experienced Defence counseland incorporated into the trial time estimate.

c) Actions of the Crown [126] The Crown acknowledges that it is responsible for the delay occasioned by the late disclosure of the technical reports whichrequired an adjournment of the trial from January 26, and 27, 2011, to May 9, 10, and 11, 2011 – 3 ½ months [127] However, the Crown delayed in providing full disclosure to the Defendant for 10 months after advising both Defence counseland the Court in January 2010 that disclosure was complete. [128] There can be little fault attributed to the RCMP for taking no further steps in analysing the Defendant’s computer from the timeit was seized until they were sure the case would be contested.

Given the number of cases that are resolved without a trial and the sheervolume of cases being investigated such a decision is a prudent use of resources. [129] However, once a case is set for trial the investigation should spring into action to get the necessary technical analyses done andthe reports prepared so the Crown can meet the obligations for disclosure required of it as described in R. v. Stinchcombe (SCC), [1991] 3 S.C.R. 326. [130] Acting in such a fashion would have a number of possible salutary effects; including but not limited to:

a) allowing the Crown and Defence counsel to discuss possible admissions of fact,

b) allowing Defence counsel time to consider and if necessary retain their own expert,

c) if the disclosure generates overwhelming evidence allow time for Defence counsel and the Crown to have plea discussions, and

d) allowing Defence counsel to know the extent of the case to be met so that both counsel could make accurate trial estimates. [131] If full disclosure had been made in April or even May 2010 the trial could have commenced in January 2011 instead of having tobe adjourned. The January trial dates were scheduled before the full time sitting local Quesnel judge, whose

schedule would have hadmany more available days than mine, to accommodate any continuations of the trial. [132] In fact, during the same time period that judge was able to deal with a very similar case, with the same Defence counsel andsimilar Crown disclosure issues in 37 months total time. [133] It is impossible at this time to calculate the overall cumulative effect of the Crown’s late disclosure on the conduct of the trialbut it is reasonable to conclude it had some ripple effect on the pace of proceedings to the trial’s conclusion.

Any suggestion by theCrown to the contrary is not convincing. [134] The Crown’s submission that the late disclosure was fully remedied by the 3½ month adjournment of the trial from January toMay 2011 is analogous to someone inadvertently setting into motion a long line of upright dominos and then claiming that they are onlyresponsible for tipping over the first one. d. Limitations on Institutional Resources

[ 135 ] Between December 1, 2010, and April 1, 2013, my availability to proceed with this matter was curtailed by my appointment as an Associate Chief Judge of the Provincial Court. From April 1, 2013, to the present my availability was also curtailed by my duties as the Regional Administrative Judge for the Northern Region of the Provincial Court. [ 136 ] Although every effort was made by me and the JCM to free up time for the continuation of the trial as required there were a number of periods of time that could not be made available which collectively I estimate at 4 months institutional or systemic delay. e.

Other Reasons for Delay [ 137 ] The calculation of time in an Askov application is from the swearing of the Information until the conclusion of the trial. The Crown contends that there is an inference of unseemliness in the Defendant waiting until the trial is almost at its end before bringing the Askov application.

It is true that such an application could have been brought at earlier points in the trial but the Crown did not suggest when that might be. [ 138 ] The Crown suggestion that if the Defendant was suffering serious prejudice an earlier application may have been warranted to alleviate the prejudice is worthy of careful consideration. What is difficult to determine, based on the evidence presented and the history of the case, is when the prejudice goes from being what is normally expected by any accused person to that of being serious.

That can only be resolved by examining the length of the delay, the nature of the prejudice complained of, the effect of the prejudice on the Defendant and whether the prejudice can reasonably be determined to be serious. That can only be accomplished when the end of the trial is ascertainable.

Summary of Delay [ 139 ] A

summary of the total delay in this matter includes the following constituent components:

a) Waiver – 11 ½ months

b) Inherent Time – 25 months

c) Actions of the Accused – 3 months

d) Actions of the Crown – 10 ½ months

e) Limits on Institutional resources – 4 months

f) Total delay – 54 months. 4. Prejudice to the Defendant a. Liberty [ 140 ] The Defendant was not on any bail conditions since his arrest so there were no liberty interests interfered with. b. Right to Make Full Answer and Defence [ 141 ] The Defendant listed several factors that interfered with his ability to defend himself due to a combination of circumstances.

They included his loss of a clear memory due to the passage of time, several medical conditions he suffers from and a variety of emotional or mental health issues including anxiety, depression and stress. [ 142 ] The Defendant also described his difficulties in bringing himself to review the disclosure as a result of his various conditions which further impinged upon his ability to explain his actions. [ 143 ] The Crown takes exception to those assertions pointing out:

a) there is no independent verification of the numerous medical or mental health conditions claimed by the Defendant,

b) some of the medical conditions predate the laying of the Information,

c) the case relies very little on memory of events given the enduring documentary evidence provided to the Defendant and the Court. [ 144 ] Even in circumstances where there are aids to memory available to any witness the memory of most people degrades over time and the more time that passes the less complete recollections remain. I have no doubt that there has been some degradation of the Defendant’s memory which has been exacerbated by the inordinate length of time this case has taken.

However, whether or not such degradation is due, even in part, to the Defendant’s health issues has not been bolstered by independent medical evidence.

Without that information the Defendant’s assertions concerning his memory problems and inability to get properly prepared for his testimony must be very carefully considered and may be no different than any other witness’ ability to recall events that occurred far in the past. [ 145 ] The Crown pointed out that the Defendant did not bring those concerns to the Court’s attention until the end of the trial and did not present evidence of any steps to have those issues diagnosed or treated. [ 146 ] However, it was clear throughout the course of the trial that the Defendant was suffering from some medical conditions that affected his mobility and caused him either extreme discomfort or outright pain which appeared to be chronic and enduring.

It was not

necessary to have independent medical information to observe that the Defendant's medical situation appeared to considerably interfere with his overall general physical well-being which could effect his emotional and mental status. c.

Security of the Person [ 147 ] In Mills , at page 919, Lamer, J., in commenting on the issue of prejudice and security of the person said: ...These include stigmatization of the Defendant, loss of privacy, stress and anxiety resulting from a multitude of factors, including possibly disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. [ 148 ] The Defendant listed several factors which have prejudiced him which can be considered under security of the person.

Matters of stress and anxiety have been already addressed. [ 149 ] The Defendant contended that he was unable to seek employment due to the ongoing nature of the trial and both his need to be available for any continuations as scheduled and his unwillingness to place any employer in the position of hiring him only to lose his services if he was convicted at the conclusion of the trial. [ 150 ] The Crown submitted that the Defendant was largely unemployable due to his medical conditions that restrict his mobility and as such his claims surrounding his employment situation were not sustainable. [ 151 ] I am unable to conclude that the Defendant is unemployable given that he did find employment of a less rigorous nature after leaving his physically demanding position.

Furthermore, the Defendant found himself in one of those situations where, for the valid reasons he suggested, it might not be prudent to seek employment if the case was going to be concluded within a reasonable time. As the trial lurched from one adjournment to the next the Defendant extended his decision to remain out of the work force.

In the circumstances of this case I cannot conclude that was an unreasonable course of action given the uncertainty of the outcome and possible sanctions. [ 152 ] The Defendant also described his reason for resigning from his last position as being related to the delays that have been encountered in concluding the trial.

On that point I agree with the Crown that the Defendant’s decision was the result of the charges he was facing long before the delays began to mount up. [ 153 ] I do not accept the Crown's contention that the Defendant's impoverished financial situation is without foundation and is more related to the unanticipated underestimate of the trial time then the overall delay. There were litigation decisions made by Defence counsel which increased the length of time the trial took. The Crown is also responsible for the underestimation of the trial time.

Those decisions forced both the Defendant and his counsel to prepare and re-prepare for his evidence as the timeline expanded.

Such additional preparation requires more time and the commensurate increase in expense. [ 154 ] In addition, it is clear that as a retired person on a fixed income that the length of time the trial took would result in more serious financial implications for the Defendant than if it had been completed in a timely fashion [ 155 ] The extra costs and hence prejudice to the Defendant were as a result of both the underestimation by both counsel of the total length of the trial and the delay occasioned by those mis-estimates. [ 156 ] The Crown also discounted the Defendant's embarrassment arising from the local media coverage suggesting that any embarrassment would be largely due to the nature of the charges and not the delay.

It is a reality that in most cases a person charged with child pornography offences becomes a pariah among most who are made aware of the charges.

In a larger community one can largely be anonymous and the reporting of such events in the media although embarrassing, would be limited to those who know the person. [ 157 ] In a small community like Quesnel where a person is known by a large component of the community, either personally or by name, having the media (which in many small towns follows court cases quite closely) report on a case every time it appears before the Court would have a much more embarrassing impact than in a large city.

Each time the case is delayed and that fact is reported it can re- establish in the public's eye the Defendant's status as an alleged child pornographer, prolonging the social prejudice. Balancing The Defendants Rights and the Community’s Interests [ 158 ] Although the term “balancing” is used frequently in the case law it is not meant to be a direct comparison of one factor or factors against another. Rather, the cases adopt an approach of considering all the factors to come to a conclusion on whether an accused’s s. 11(

b) Charter rights have interfered with to the point that

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