R. v. Williams Date:, 2010 BCPC 122

Citation: R. v. Williams Date: 20100506 2010 BCPC 0122 File No: 25926-1 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARREN BRYAN WILLIAMS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE WEBB Counsel for the Crown: R. Young Counsel for the Defendant: B. Blakley Place of Hearing: Cranbrook , B.C. Date of Judgment: May 6, 2010 [ 1 ] THE COURT: Mr. Williams is charged with possession of cocaine for the purposes of trafficking. This is an application for a judicial stay of proceedings based on unreasonable delay. The Charter of Rights provides at s. 11(

b) that everyone charged with an offence has a right to be tried within a reasonable time. Everyone includes, as is the case here, persons charged with drug trafficking and, as was the case in a series of decisions I made last week in Golden, persons charged with impaired driving. Justice delayed is justice denied. That is a phrase that is best used to explain this Charter right. [ 2 ] Before I deal with the merits of the application, some history of the proceedings is necessary. Mr. Williams initially elected to be tried by Supreme Court judge alone following a preliminary hearing.

The preliminary hearing was scheduled to be heard on May 31st of this year. This application, for a judicial stay of proceedings, was originally argued before the preliminary hearing Judge, at a time when the accused had elected to be tried by a Supreme Court judge. [ 3 ] Following their submissions, counsel realized that a preliminary hearing judge did not have jurisdiction to grant the Charter relief sought by the accused. The accused then re-elected to be tried in Provincial Court, using the May 31st date as the trial date, with the consent of the Crown.

Counsel agreed that the submissions made earlier could be admitted for the delay argument which was now before a judge having jurisdiction to grant the relief sought.

[4] It is necessary for me to comment on the efforts of the various participants. Counsel have been ready to proceed to trial. Thepolice have done their job properly from the investigation through to the laying of charges. The JCM or trial coordinator has done herbest to provide trial dates. Yet we end up with a simple straightforward criminal trial taking almost two-and-one-half years to be heard,from the swearing of the information on November 22nd, 2007, to the current trial date of May 31st, 2010. [5] Obviously, two-and-a-half years is too long. The time estimate for the trial is two-and-a-half hours.

The arrest occurred onNovember 21st of 2007. An information was sworn the next day, November 22nd, 2007. On that date, the accused was brought tocourt in custody, then released on a number of bail conditions that have impacted on his ability to live a normal life. His freedom wasimpaired to some significant degree by the bail conditions. [6] As of November 22nd, 2007, the accused had been treated fairly by the court system. After being arrested, he was provided witha bail hearing at an early opportunity.

By January 9th, 2008, the accused had elected to be tried by Supreme Court judge after apreliminary hearing which, as indicated, was estimated to last for two-and-a-half hours. [7] A date of October 17th, 2008, was provided for the preliminary hearing. That date was confirmed on September 10, 2008. OnOctober 17th, 2008, other matters took priority. The court day was overbooked.

Recognizing the lack of court time, and accepting thatother matters, perhaps older or more serious or both, took priority, the preliminary hearing was adjourned to November 12th, 2008, to fixa new date. [8] To put these events in perspective, Mr. Williams was required to attend court on October 17th, 2008, then told we did not havetime to hear his case. If he had not shown up, he would have faced charges and potential incarceration for not doing as the court haddirected, showing up on his hearing date. He did as required and was told, in effect, “Sorry, we cannot accommodate you. Come back atsome other date.

If you do not, you may end up in jail.” [9] A new hearing date was set, October 26th, 2009, more than a year after the first hearing date and more than 23 months from hisfirst court appearance. A 23-month delay for a two-and-a-half-hour trial. Mr. Williams mixed up his court dates in October of 2008. Heshowed up on October 28th, not October 26th. Noting the amount of time that had elapsed from his first appearance, it is not surprisingthat he mixed the days up. Two years is a long time to wait. On October 28th of 2008, Mr. Williams was arrested and again released onconditions.

A new hearing date was provided, May 31st, 2010. [10] Counsel for Mr. Williams suggested that some of the seven-month delay from October of 2009 to May of 2010 is institutionaland some is the fault of Mr. Williams. It is my view that all of that seven-month delay is the fault of Mr. Williams for failing to attend athis scheduled hearing date on October 26th. Accordingly, the period of delay that I will consider in this application is from November22nd, 2007, the date of the swearing of the information, to October 26th, 2009, the missed hearing date. This delay is more than 23months.

That, in my view, is too long. [11] I will deal with some guidance as has been provided on the issue of delay from the Supreme Court of Canada, Firstly, in R. v.Askov, (SCC), [1990] 2 S.C.R. 1199, the court, at paragraphs 43 through 47 in discussing the purpose of the Charterright protected by 11(b), said as follows: 43 I agree with the position taken by Lamer J. that s. 11(

b) explicitly focuses upon the individual interest of liberty and security ofthe person. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justiceguaranteed by s. 7 of the Charter. There could be no greater frustration imaginable for innocent persons charged with an offence than tobe denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial.The time awaiting trial must be exquisite agony for accused persons and their immediate family.

It is a fundamental precept of ourcriminal law that every individual is presumed to be innocent until proven guilty. It follows that on the same fundamental level ofimportance, all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselvesagainst the charges they face and to have their name cleared and reputation re-established at the earliest possible [date] ... 44 Although the primary aim of s. 11(

b) is the protection of the individual's rights and the provision of fundamental justice for theaccused, nonetheless there is, in my view, at least by inference, a community or societal interest implicit in s. 11(b). That communityinterest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial anddealt with according to the law. Second, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both thoseaspects of the community interest.

A trial held within a reasonable time must benefit the individual accused as the prejudice whichresults from criminal proceedings is bound to be minimized. If the accused is in custody, the custodial time awaiting trial will be kept toa minimum. If the accused is at liberty on bail and subject to conditions [which is the case here], then the curtailments on the liberty ofthe accused will be kept to a minimum.

From the point of view of the community interest, in those cases where the accused is detained incustody awaiting trial, society will benefit [from] ... the quick resolution of the case either by reintegrating into society the accused foundto be innocent or if found guilty by dealing with the accused according to the law.

If the accused is released on bail and subsequentlyfound guilty, the frustration felt by the community on seeing an unpunished wrongdoer in their midst for an extended period of time willbe relieved. 45 There are as well important practical benefits which flow from a quick resolution of the charges. There can be no doubt thatmemories fade with time. Witnesses are likely to be more reliable testifying to events in the immediate past as opposed to events thattranspired many months or even years before the trial.

Not only is there an erosion of the witnesses' memory with the passage of time,but there is bound to be an erosion of the witnesses themselves. Witnesses are people; they are moved out of the country by theiremployer; or for reasons related to family or work they move from the east coast to the west coast; they become sick and unable totestify in court; they are involved in debilitating accidents; they die and their testimony is forever lost. Witnesses too are concerned thattheir evidence be taken as quickly as possible. Testifying is often thought to be an ordeal.

It is something that weighs on the minds ofwitnesses and is a source of worry and frustration for them until they have given their testimony. 46 It can never be forgotten that the victims may be devastated by criminal acts. They have a special interest and good reason toexpect that criminal trials take place within a reasonable time. From a wider point of view, it is fair to say that all crime disturbs the

community and that serious crime alarms the community. All members of the community are thus entitled to see that the justice systemworks fairly, efficiently and with reasonable dispatch. The very reasonable concern and alarm of the community which naturally arisesfrom acts of crime cannot be assuaged until the trial has taken place.

The trial not only resolves the guilt or innocence of the individual,but acts as a reassurance to the community that serious crimes are investigated and that those implicated are brought to trial and dealtwith according to the law. 47 The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community'sfrustration with the judicial system and eventually to a feeling of contempt for court procedures.

When a trial takes place withoutunreasonable delay, with all witnesses available and memories fresh, it is far more certain that the guilty parties who committed thecrimes will be convicted and punished and those that did not, will be acquitted and vindicated. It is no exaggeration to say that a fair andbalanced criminal justice system simply cannot exist without the support of the community. Continued community support for oursystem will not endure in the face of lengthy and unreasonable delays. [12] The court in Askov then noted that in considering an 11(

b) or delay application the court must consider the following: the lengthof the delay, the explanation for the delay including the delay attributable to the Crown, systemic or institutional delay, and delayattributable to the accused; next, waiver and, lastly, prejudice to the accused. The court then said at paragraph 56: The right guaranteed by s. 11(

b) is of such fundamental importance to the individual and of such significance to the community as awhole that the lack of institutional resources cannot be employed to justify a continuing unreasonable postponement of trials. In Mills,supra, Lamer J. noted at p. 935: In an ideal world there would be no delays in bringing an accused to trial and there would be no difficulties in securing fully adequatefunding, personnel and facilities for the administration of criminal justice. As we do not live in such a world, some allowance must bemade for limited institutional resources. However, the lack of institutional facilities can never be used as a basis for rendering the s. 11(

b) guarantee meaningless. In the samecase, Lamer J. gave clear warning of the dangers that would ensue from permitting the lack of institutional resources to constitute anacceptable excuse for unreasonable delays. At page 935 he stated: It is imperative, however, that in recognizing the need for such a criterion we do not simply legitimate current and future delays resultingfrom inadequate institutional resources. For the criterion of institutional resources, more than any other, threatens to become a source ofjustification for prolonged and unacceptable delay.

There must, therefore, be some limit to which inadequate resources can be used toexcuse delay and impair the interests of the individual. [13] At paragraph 76, the court in Askov dealt with problems within the District of Peel in Ontario and referred to a report done by auniversity professor, Professor Carl Baar, Director of the Judicial Administration Program at Brock University, as follows: If Canadian courts were required to set cases for trial within six months, they could almost universally do so.

No Provincial Court inCanada is normally setting cases for trial or preliminary hearing more than six months after first appearance. Of the five provinces withcounty courts, only one location in one province routinely sets criminal cases for trial more than six months after committal: Ontario'sPeel County Court in Brampton. That court has set trial dates a full ten months ahead, perhaps the longest delay in Canada. [14] I accept that in 1990, the B.C. Provincial Court was setting cases within the six-month time period.

This continued in theKootenay area of British Columbia until at least 2004 when resources were deleted. We now have fewer judges, fewer staffedcourthouses, fewer court staff, and much, much longer delays, despite the concerns noted by the Supreme Court of Canada as early as1990. [15] In R. v. Morin, (SCC), [1992] S.C.J. No. 25, a follow-up decision of the Supreme Court of Canada, the courtfollows in discussed what is thought was reasonable in terms of delay.

At paragraph 48, the Supreme Court of Canada said: How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? Whileaccount must be taken of the fact that the state does not have unlimited funds and other government programs compete for the availableresources, this consideration cannot be used to render s. 11(

b) meaningless. The Court cannot simply accede to the government'sallocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must beassessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonabledelay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in... which the Court will no longer tolerate delay based on the plea of inadequate resources.

This period of time may be referred to as anadministrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. Such a guidelinewas suggested in Askov and was treated by some courts as a limitation period. I propose therefore to examine in some detail the purposeof a guideline commencing with an examination of [the] ... role in Askov. [16] At paragraph 54 in Morin, the court said as follows: 54 In this case we are dealing with the Provincial Court. The suggested period of institutional delay ranges from 6 to 10 months.

Therespondent suggests that 8 to 10 months of purely systemic delay would not be unreasonable in the Provincial Court. It admits, however,that it is aiming at institutional delay of no more than 6 to 8 months in Provincial Court. Arbour J.A. in Bennett, supra, suggests "a delayof 8 1/2 to 9 months in getting a case to trial in the Provincial Court, although not a model of brevity, is not outside the range ofreasonableness" ... 55 In Askov, Cory J., after reviewing comparative statistics suggested that a period in the range of 6 to 8 months between committaland trial would not be unreasonable.

Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay ofbetween 8 to 10 months as a guide to Provincial Courts. [17] At paragraph 61, the court said:

Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that suchan inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcementof the individual right is seriously undermined. [18] As early as 1992, the Supreme Court of Canada has affirmed the position that eight to 10 months is a reasonable expectation fortrials in Provincial Court. [19] Recently, the Supreme Court of Canada again dealt with the issue of in R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3.

The court reaffirmed the Morin guidelines and stated in the headnote: In the absence of specific evidence of prejudice to the accused's liberty and security interests or his interest in a fair trial, prejudice maybe inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. Here, the charges hadbeen hanging over the accused's head for a long time and it was reasonable to infer, as the trial judge did, that the prolonged exposure tocriminal proceedings resulting from the delay gave rise to some prejudice.

The accused had also been on judicial interim release for morethan two years and, although bail conditions were relaxed as the delay lengthened, this consideration was properly taken into account asone relevant aspect of the trial judge's assessment of whether the long delay was unreasonable. [20] The Crown has referred me to a recent decision of the B.C. Court of Appeal, R. v. Bains, 2010 BCCA 178. Counsel relies on thiscase for the proposition that not all long delays warrant a judicial stay of proceedings.

I agree with that principle, but find that Bains isnot particularly instructive to me given the vastly different factual situations in Bains and the case at bar. [21] Mr. Bains was charged along with three others with conspiracy to traffic cocaine. The trial, scheduled for Provincial Court, wasestimated to last for four months. The case at bar is estimated to take two-and-a-half hours. Shortly before the trial date in Bains, one ofthe co-accused re-elected trial in Supreme Court. A new information was laid. The other accused were brought into Supreme Court.

Dates were set and then various accused made their own arrangements with the Crown. [22] Paragraphs 8 through 17 of Bains provide a thorough review of the process and support the findings of the trial judge that in thecircumstances of that case with complex issues and four co-accused that the delay was not unreasonable. None of those complexities arepresent in the case at bar. [23] In considering the current case, I find that the delay not attributable to the accused is 23 months and four days, from November22nd, 2007, to October 26, 2009. I find no waiver by the accused.

I accept that all of this delay is institutional. I accept that this casewas neither complex nor lengthy. In fact, it was simple and short. Two-and-a-half hours for a hearing, yet no time is available foralmost two years. [24] The accused is on bail. His freedom has been restricted. I am told that he has been charged 13 times for breaching his bail andconvicted of six offences. I am told that of the 13 charges, only one was conduct that would be considered criminal if he were not onbail. The other 12 allegations were charges for behaviour that other members of the community not on bail could lawfully engage in.

Mr. Williams has been convicted for six offences, many of which attracted jail sentences. Obviously, the bail conditions have beenprejudicial and harmful to him. [25] Clearly the community has an interest in having people engaged in illegal activities, drugs or otherwise, being held accountablefor their actions. As a member of the community, I want to see those people held accountable. [26] Wait times for trials in the Kootenays have gone from four to six months in 2004 to 12 months or more in 2010. We have fewerjudges, even with the most recent appointment announced this week.

With our new judge, we will have the equivalent of 3.8 judges inan area which used to have five. Judge Don Carlgren retired in January of this year. He gave his notice more than six months prior tohis retirement. Despite this and knowing of the delays in getting matters to trial in the Kootenays, we will not have a replacement sittinghere until June, five months too late. [27] People are ordered to show up for trial dates that are hopelessly overbooked. Mr. Williams was told to come to court in October2008 for this hearing, then told to go home because we did not have time to accommodate him.

This week in Cranbrook, we have had aperson travel from Bonners Ferry Idaho to Cranbrook for his trial only to be told there was no time. We had another person travel fromVancouver for a trial only to be told there was no time. [28] Civilian witnesses are asked to attend court, then told the trial will not proceed. Police witnesses are asked to attend trial, thentold to come back some other day. The police are frustrated because their work, their investigation of criminal matters, takes far too longto come to conclusion.

Police costs increase when members attend for trial, often on overtime, then are sent home because the day isoverbooked. This overbooking has become the norm in the Kootenays. [29] Last week in Golden, three impaired driving trials were set to be heard on the same day. It is standard for an impaired drivingtrial to take a full day in Provincial Court. Two of the accused people had to travel to Golden for the trials. One of them brought along adriver in case he was convicted. The other had made arrangements to travel home on public transit if he was convicted.

There was nocourt time available for any of the three trials, the court list being overbooked with other criminal matters and a Small Claims settlementconference. [30] One of the accused in Golden, charged with impaired driving, testified in his successful application for a stay of proceedingsbased on delay, that the charges were something that impacted on his life on a daily basis. He had put off plans to travel to Australiauntil after his trial. It affected his schooling and work plans. It was going to take two years to bring his matter to trial.

His life was puton hold for that time period. [31] He had spent $6,000 thus far in legal fees and expected to have to spend another $4,000 in legal fees if he had to retain his lawyeragain for the next trial date. The delay, not his fault, would cost him an extra $4,000 in legal fees to retain counsel for the next trial. Hehad to pay his counsel approximately $4,000 to appear in Golden last week on the trial date, then was told there was no time for his trial.

[ 32 ] His trial did not proceed through no fault of the accused, yet he and others with counsel were expected to pay for their lawyers’ time even though their trials did not proceed. Clearly, this is an unacceptable situation. [ 33 ] I remind myself that our legal system provides that people are innocent until proven guilty, then I ask myself, is it fair to order innocent people to attend court on trial days where there is no realistic prospective of the trial completing?

Is it fair to compel people to organize their affairs around the court schedule, then not provide them with an opportunity to be heard? [ 34 ] In the case of Mr. Williams, is it fair to arrest him and place him on bail that restricts his freedom pending a trial? It is, in my view, fair to do that, but it is not fair to place him on bail, restrict his freedoms, and then fail to provide sufficient facilities, sufficient institutional resources, sufficient judges and courtrooms, to allow him to have a trial within a reasonable time as required by the Charter of Rights . [ 35 ] Clearly, this is not fair.

It is not fair to Mr. Williams. It is not fair to the police who have done all they can do. It is not fair to the Crown who have done all that they can do. It is not fair to the local community. It is important that people involved in drugs in our community be held accountable, that their charges be determined by a trial on the merits. However, it is equally important that individual rights, including the right to be tried within a reasonable time, be protected. [ 36 ] The system at present in our area is failing. Court lists are overbooked.

Files take too long to get to court and often do not proceed on the day set for trial because of overbooking. Mr. Williams is yet another example of the problem. This is a simple matter expected to take two-and-a-half hours. It will be more than 23 months before the trial even starts. That is too long. [ 37 ] I am directing a stay of proceedings based on a denial of Mr. Williams’ s. 11(

b) rights. I say that mindful of and in complete agreement with the Supreme Court of Canada’s comments in Askov where they said at paragraph 59: Where inordinate delays do occur, it is those who are responsible for the lack of facilities who should bear the public criticism that is bound to arise as a result of the staying of proceedings which must be the inevitable consequence of unreasonable delays. Members of the community will not and should not condone or accept a situation where those alleged to have committed serious crimes are never brought to trial solely as a result of unduly long delays.

It is a serious consequence with potentially dangerous overtones for the community. It is right and proper that there be criticism of the situation when it occurs. [ 38 ] Those comments were appropriate in 1990 and perhaps even more so now. As indicated, I direct a stay of proceedings on these charges. [REASONS FOR JUDGMENT CONCLUDED]