R. v. Hammer, 2011 BCPC 234

Citation: R. v. Hammer, Hammer, Malcolm Date: 20110914 2011 BCPC 0234 File No: 26502-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH WILLIAM HAMMER JAMES EDWARD HAMMER and THERESA JUNE MALCOLM REASONS FOR JUDGMENT RE: S. 11(

b) CHARTER APPLICATION OF JOSEPH WILLIAM HAMMER OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Agent for the Director of Public Prosecution: J. Sutton Counsel for the Defendant: G. Leven Places of Hearing: Prince George, B.C. Dates of Hearing: July 7, 8, 9, 27; December 13, 16, 2010; February 21, March 18, June 17, July 6, 7, August 15 and 18, 2011 Date of Judgment: September 14, 2011 INTRODUCTION [ 1 ] In the opening paragraphs of R. v. Morin 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771 , Sopinka J. said 1. The issue in this appeal concerns the right of an Defendant to be tried in a reasonable time. This right is enshrined in s. 11(

b) of the Canadian Charter of Rights and Freedoms which states: 11. Any person charged with an offence has the right . . . (

b) to be tried within a reasonable time; . . . 2. Though beguiling in its simplicity this language has presented the court with one of its most difficult challenges in search of an

interpretation that respects the right of the individual in an era wherein the administration of justice is faced both with dwindling resources and a burgeoning case load. [ 2 ] After a trial that occupied several days spread out over many months, the Defendant, Joseph William Hammer, was found guilty on August 18, 2011 of possession of cocaine for the purpose of trafficking. By Notice of Constitutional Question filed on July 17, 2011,

the Defendant alleges his rights to a trial within a reasonable time under

Section 11(

b) of the Charter of Rights and Freedoms (the Charter ) have been breached and seeks the remedy of a Judicial Stay of Proceedings; often referred to as an Askov Application named after the case of R. v. Askov 1990 CanLII 45 (SCC) , [1990] 2 S.C.R. 1199 . FACTS OF THE CASE [ 3 ] The Defendant was charged with two Co-Defendants, James (Jim) Hammer, his brother, and Theresa Malcolm, his common-law spouse, with possession of cocaine for the purpose of trafficking contrary to S. 5 (2) of the Controlled Drugs and Substances Act . This charge was alleged to have occurred on October 2, 2007 in Prince George B.C.

Jim Hammer was convicted and sentenced to two years in prison on April 1, 2008. The charges against Theresa Malcolm were stayed. Pre-Charge Background [ 4 ] In late September 2007, the Royal Canadian Mounted Police (RCMP) received confidential source information that the Defendant and Jim Hammer were involved in significant sales of cocaine from the Defendant's residence and that the Defendant was interested in exchanging cocaine for firearms.

The informant also agreed to arrange a telephone introduction between Jim Hammer and the investigating member, Constable (Cst.) Knibbs. [ 5 ] At the beginning of the trial Defence counsel requested a Voir Dire (Voir Dire Number 1) to determine the informant's status. Defence counsel alleged that the informant was a police agent and informant privilege did not apply. That Application was dismissed, the informant’s identity remained anonymous and the other evidence from the Voir Dire became evidence in the trial. The Arrest [ 6 ] On October 2, 2007, acting in an undercover capacity, Cst.

Knibbs contacted Jim Hammer and arranged to purchase a quarter pound of cocaine for cash or firearms. Jim Hammer advised he would have to pick up his brother, the Defendant, and they would meet Cst. Knibbs at the parking lot of a local fast food restaurant to complete the transaction. [ 7 ] Unbeknownst to Jim Hammer his vehicle was under surveillance by Cst. Collister. He was followed from his residence to the Defendant's residence where he remained briefly and then he and the Defendant travelled together in Jim Hammer’s car to the rendezvous point. [ 8 ] When they arrived both were arrested.

Upon arrest four baggies of white powder and cash were found on Jim Hammer and cash was found on the Defendant. The Search Warrant [ 9 ] After Jim Hammer and the Defendant were arrested Cst. Knibbs went to the Defendant’s residence to secure it before a Search Warrant Application was prepared. At the residence he met and arrested Theresa Malcolm. Cst. Knibbs left the residence under the supervision of another RCMP member and returned to the detachment and prepared an Information To Obtain (ITO) a Search Warrant.

A Search Warrant was granted later that day for the Defendant’s residence. [ 10 ] The preparation of the ITO and the resulting Search Warrant was examined in another Voir Dire (Voir Dire Number 2). Defence counsel contended that the actions of Cst. Knibbs in his preparation of the ITO was flawed to the point that the Defendant’s rights under

section 8 of the Charter to be protected from unreasonable search and seizure were breached and that the evidence obtained during execution of the Search Warrant should be excluded. That Charter application was dismissed and the evidence on Voir Dire Number 2 became evidence in the trial. [ 11 ] The Defendant's residence was searched. Items seized from Jim Hammer and the Defendant at the time of their arrest and later found in the Defendant’s residence included: (

a) white powder contained in baggies, a cereal bowl, 160 Keno paper flaps and a coffee can totaling 297 grams, or 9.8 ounces, or .62 pounds; (b) $11,676.12 in cash; (

c) various plastic bags containing hundreds of empty folded white paper flaps and numerous plastic baggies of various sizes; (

d) two digital scales; (

e) two notebooks containing names and monetary amounts; (

f) three safes; (

g) a 2.2 kg container of dextrose. The Defendant’s Statement [ 12 ] On October 3, 2007, the Defendant gave a statement to Cst. Beck. The voluntariness of that statement was the subject of a further Voir Dire (Voir Dire Number 3). The statement was ruled admissible and became evidence in the trial. [ 13 ] Although initially stating he did not want to talk to Cst. Beck about his arrest and the search of his residence the Defendant later disclosed, in general terms, how he operated his drug distribution system. [ 14 ] He detailed why he sold only powder cocaine, how he managed his sales force, why he didn't sell to children or pregnant women

and how Ms. Malcolm was not involved in his drug business. Analysis of Seized Items [ 15 ] Four samples of the seized white powder were sent to the Health Canada lab for analysis. The Certificate of Analyst for each sample indicated that the powder in each sample was cocaine. Trial Decision [ 16 ] The evidence presented at trial proved, beyond a reasonable doubt that the Defendant was in possession of cocaine and given the amount of cocaine seized, the other drug paraphernalia and large amounts of cash present the possession was for the purpose of trafficking.

TIME LINE [ 17 ] Given the nature of the Application before the Court the timeline of events is important. [ 18 ] On October 2, 2007, the Defendant, Jim Hammer and Teresa Malcolm were arrested for possession of cocaine for the purpose of trafficking. The Defendant was issued a Promise to Appear for November 27, 2007. [ 19 ] On November 27, 2007 the Defendant appeared in Court but his case was not on the court list. [ 20 ] On February 4, 2008, the Information was sworn. [ 21 ] On April 1, 2008, the Defendant made his first appearance in Court.

An Unsealing Order was granted with regard to the Search Warrant [ 22 ] On July 2, 2008, the Arraignment Hearing was held. At the Arraignment Hearing the Crown and Defence counsel agreed the case would take approximately 2 1/2 days to be heard. [ 23 ] On July 2, 2008, the Judicial Case Manager (JCM) set a Trial Confirmation Hearing (TCH) date of November 19, 2008 and trial dates of January 20, 21 and 22, 2009 (the 1st Trial Dates).

There was no evidence presented regarding any trial dates that might have been available earlier than the date fixed. [ 24 ] On December 1, 2008, Defence counsel wrote to the Crown seeking further disclosure and advising of the Applications he would be bringing related to sections 8 and 9 of the Charter . [ 25 ] On January 20 and 21, 2009, the trial was unable to commence due to other matters before the Court being given priority.

On January 21, 2009, counsel agreed to cancel the remaining trial date and seek new trial dates from the JCM. [ 26 ] On January 22, 2009, the JCM set pre-trial appearances for July 3 and 22, 2009, a TCH for August 11, 2009 and trial dates of September 14, 15 and 16, 2009 (the 2nd Trial Dates). Defence counsel was offered August 20, 21 and 24, 2009 but was unavailable due to other commitments. [ 27 ] Prior to the TCH of August 11, 2009, Defence counsel was ordered, by direction of the Administrative Judge, to continue an in custody multiple accused trial on the September 2009 dates.

Defence counsel spoke to the Defendant about obtaining new counsel but the Defendant decided to continue with Defence counsel because he felt that Defence counsel had intimate knowledge of the file including knowledge of the Charter applications and because he did not feel he could find new counsel and have that person prepared for the September trial dates.

On August 11, 2009, the September trial dates were adjourned and noted as a Defence adjournment. [ 28 ] On August 11, 2009, the Court also made an Order compelling further disclosure of confidential source information notes (the “Notes”) made by an RCMP member in furtherance of the investigation of the Defendant. [ 29 ] On August 12, 2009, the JCM set a new TCH date of December 16, 2009 and new trial dates of January 20, 22 and 25, 2010 (the 3rd Trial Dates). [ 30 ] Prior to January 20, 2010, the Crown advised Defence counsel that the Notes could not be located by the RCMP.

The TCH was adjourned from December 16, 2009 to January 13, 2010 and the issue of the Notes was discussed with the Court. On that date Defence counsel indicated that he was ready to proceed to trial. [ 31 ] On January 20, 2010, upon receiving further instructions from the Defendant, Defence counsel applied to adjourn the trial because of the nondisclosure of the Notes.

That matter came before the Honourable Judge Weatherly who concluded that because the original disclosure Order had been granted by me, the matter would more properly be dealt with by me. [ 32 ] On January 21, 2010, after hearing counsels’ submissions, I adjourned the trial to new dates to be fixed by the JCM. [ 33 ] On January 21, 2010, the JCM fixed a new TCH for May 4, 2010 and new trial dates for July 7, 8 and 9, 2010 (the 4th Trial Dates). [ 34 ] On July 7, 2010, the trial was unable to commence due to other matters before the Court being given priority. [ 35 ] On July 8, 2010, the trial was unable to commence in the morning because there was no Sheriff available.

The trial did commence in the afternoon and the evidence on Voir Dire Number 1 was heard taking approximately 130 minutes. [ 36 ] On July 9, 2010, submissions on Voir Dire Number 1 were heard taking approximately 40 minutes. The decision on Voir Dire

Number 1 was reserved and given on July 27, 2010 taking approximately 25 minutes. [ 37 ] On July 28, 2010, the JCM fixed additional trial dates for December 13 and 16, 2010. [ 38 ] On December 13, 2010, the evidence and submissions on Voir Dire Number 2 were heard taking approximately 240 minutes. [ 39 ] On December 16, 2010, further submissions on Voir Dire Number 2 were heard taking approximately 60 minutes.

The decision on Voir Dire Number 2 was reserved and given on February 21, 2011 taking approximately 30 minutes. [ 40 ] On February 24, 2011, the JCM fixed an additional trial date of March 28, 2011. [ 41 ] On March 28, 2011, the evidence and some submissions on Voir Dire Number 3 were heard taking approximately 145 minutes. [ 42 ] On April 11, 2011, the JCM fixed additional trial dates of June 17 and July 6 and 7, 2011. [ 43 ] On June 17, 2011, further submissions on Voir Dire Number 3 were heard and the decision was given taking approximately 80 minutes. [ 44 ] On July 6, 2011, evidence in the trial was heard taking approximately 70 minutes. [ 45 ] On July 7, 2011, evidence on the trial was heard taking approximately 55 minutes. [ 46 ] On July 8, 2011, the JCM fixed additional trial dates of August 15 and 18, 2011. [ 47 ] On July 17, 2011, Defence counsel filed a Notice pursuant to the Constitutional Question Act . [ 48 ] On August 15, 2011, submissions were made with regard to the evidence called at trial taking approximately 20 minutes.

A decision on that matter was reserved to August 18, 2011. It was agreed between counsel that the submissions on the trial should proceed any Askov application because if the Defendant was found not guilty the Askov application would be moot. [ 49 ] On August 18, 2011, I found the Defendant guilty of the charge of possession of cocaine for the purpose of trafficking. The decision took approximately 30 minutes. After that decision was rendered the Askov application was presented taking approximately 55 minutes. The decision on that application was reserved to today.

ASKOV APPLICATION EVIDENCE [ 50 ] In addition to relying on the delay amounting to inferred prejudice, the Defendant filed an Affidavit on June 22, 2011 setting out the specific prejudice he contends he suffered. [ 51 ] In paragraphs 21 and 22 of the Affidavit the Defendant states: 21. The numerous court proceedings have caused me great stress and considerable financial hardship. The numerous appearances at trial dates have been particularly stressful because of the preparation for the proceedings in the anticipation of the possible result each time.

I have had to pay my lawyer for all court appearances and due in part to these stresses, my common-law relationship ended in October, 2010. 22. I'm also concerned that due to the passage of time, the memories of all persons involved in this case, including my own, becoming increasingly unreliable. [ 52 ] The Defendant was not cross-examined by the Crown with regard to his assertions of prejudice in the Affidavit. THE LAW The Charter [ 53 ]

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. [ 54 ]

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. [ 55 ] 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 competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Case Law [ 56 ] Counsel presented the Court with numerous case authorities with regard to Askov Applications. Those cases, a

summary of the nature of the charges, the delay and where indicated where the stay was refused include:

a. From the Supreme Court of Canada: i. R. v. Godin 2009 SCC 26 - Sexual assault, 30 months ii. R. v. Morin 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771 – Impaired/.08, 14.5 months iii. R. v. Askov 1990 CanLII 45 (SCC) , [1990] 2 S.C.R. 1199 – Extortion, 30 months iv. R. v. Conway 1989 CanLII 66 (SCC) , [1989] 1 S.C.R. 1659 v. R. v. Mills 1986 CanLII 17 (SCC) , [1986] 1 S.C.R. 863 b. From the Courts of Appeal: i. R. v. Bains 2010 BCCA 178 – Drug conspiracy, 45 months, stay refused ii. R. v. Ghavami 2010 BCCA 126 – Drug conspiracy, 45 months, stay refused iii. R. v.

Guilbride 2006 BCCA 392 – Drug conspiracy, 62 months, stay refused c. From the Trial Courts: i. R.v. Kaiser and Kaiser 2011 BCPC 168 (CanLII) , 2011 BCPC 0168 - Assault causing bodily harm, assault and threatening, 27 months ii. R. v. Archibald 2010 BCPC 273 (CanLII) , 2010 BCPC 0273 – Impaired/.08, 36 months iii. R. v. McComber 2010 BCPC 255 (CanLII) , 2010 BCPC 0255 – Impaired/refusal, 20.5 months iv. R. v. Williams 2010 BCPC 122 (CanLII) , 2010 BCPC 0122 – Possession for the Purpose of trafficking, 30 months v. R. v. Ollenberger 2010 BCPC 93 (CanLII) , 2010 BCPC 0093 – Impaired/.08, 18 months vi. R. v.

Pearson 2009 BCSC 1860 – Drug trafficking, 35 months vii. R. v. Poloni 2009 BCSC 882 – Drug Conspiracy and trafficking, 62.5 months THE MORIN FRAMEWORK [ 57 ] In Morin , Sopinka J. described the framework approach to determine whether delay has become unreasonable by considering four factors; one which has subsidiary components. They are: 1. The Length of the Delay 2. Waiver of Time Periods 3. Reason for the Delay a. Inherent Time Requirements b. Actions of the Accused c. Actions of the Crown d. Limits on Institutional Resources e. Other Reasons for Delay f.

Prejudice to the Accused [ 58 ] Morin does not explicitly direct that the delay must be specifically apportioned among waiver and the five components, but Ghavami endorses such an approach. That must be contrasted with the view in Conway where the majority of the Supreme Court of Canada at page 1674 said: On deciding a claim under s. 11(

b) of the Charter the correct approach is, in my view, to evaluate the reasonableness of the overall lapse of time. A piecemeal analysis is generally not appropriate. [ 59 ] In Pearson at paragraph 41 Punnett J. quoted from R. v. Gottardo 2009 ONCJ 454 in summarizing the aims of s. 11 (

b) of the Charter as described in Morin and other cases as follows: [2]

Section 11(

b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. [3]

Section 11(

b) also seek to protect two societal rights. First, it protects the public's interest in having our laws enforced by having

those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11 (

b) seeks to protect the public's interest in having those accused of crimes dealt with fairly. [4] As the seriousness of the offense increases, so does the societal demand the accused be brought to trial. While society has a heightened interest in seeing that serious offences are tried, the Crown has heightened obligation to ensure that the trials for such offences are held in a timely fashion. [5] To decide whether s. 11 (

b) has been infringed, the court must balance these individual and societal goals the length and causes of the delay… [case references deleted] SUBMISSIONS [ 60 ] Counsel each based their submissions on how the Morin framework should be applied to the facts of this case and how the Court should apply those facts to the framework in deciding whether or not a Judicial Stay of Proceedings should be granted. Defence [ 61 ] Defence counsel’s submissions can be summarized as follows: 1) Length of Delay - 42.5 months. 2) Waiver – There was no waiver by the Defendant at any stage.

The Defendant always wished to have the trial proceed to resolution as soon as possible. The delay is worthy of investigation. 3) Reasons for the Delay a. Inherent Time Requirements - This case is much less complicated than Guilbride, Ghavami or Bains . The three Voir Dires did not unduly prolong the case since the evidence on all three of them would have had to be presented by the Crown in any event and the submissions on each were brief. There was no lengthy inherent time requirement necessary here unlike the three cases cited.

The estimate of trial time by counsel was not a gross underestimation unlike some other cases and as such didn’t add to the inherent time required. b. Actions of the Accused - Defence counsel, in advancing the Defendant’s case, took reasonable steps to explore reasonable defences which, had they been successful, would have resolved the case more quickly. c. Actions of the Crown - It is possible that the misplacing of the Notes and the resulting trial adjournment could be described as resulting in delay due to Crown, or more properly police, actions. d.

Limitations on Institutional Resources – On many occasions from the first trial dates onward the Court was unable to accommodate the trial of this matter due to other cases receiving higher priority, lack of staff resources or the unavailability of the Judge. e. Other Reasons for Delay –The Judge’s unavailability due to other duties added to the delay. 4) Prejudice to the Accused a. Liberty - This was not a major component because the Defendant was on relaxed bail conditions. b.

Security of the Person - The Defendant suffered many stressors as described in the case law including uncertainty as to outcome, multiple appearances, high legal costs and the loss of his spousal relationship. c. Right to Make Full Answer and Defence - Several Crown witnesses had problems in recalling some events to the Defendant’s detriment.

Additionally, the Defendant had a failing memory which impaired his ability to instruct counsel. 5) Inferred Prejudice - Even if actual prejudice does not meet the legal test prejudice should be inferred as described in Morin and Godin from the sheer length of the delay which was not the responsibility of the Defendant. 6) Other Matters - Although the Court must consider the seriousness of the offence and the community’s interest in having it decided on the merits the Court should not lose sight of the seriousness of the charges from the Defendant’s perspective and his interest in having them concluded.

Crown [ 62 ] The Crown’s submissions can be summarized as follows: 1) Length of Delay - 42 months. 2) Waiver - There was a waiver by the Defendant when he instructed Defence counsel to apply to adjourn the trial so that Defence counsel could attend another continuing trial. However, even with that waiver the delay is worthy of investigation. 3) Reasons for the Delay a. Inherent Time Requirements - Although it is possible that the trial estimate was not completely accurate that didn’t add to the inherent time requirements.

b. Actions of the Accused - Defence counsel, in advancing the Defendant’s case, added to the length of the trial by seeking and arguing Voir Dires and applying for and receiving two adjournments. That is not to be condemned but did add to the length of the trial over all. c. Actions of the Crown – The misplacing of the Notes and the resulting trial adjournment could possibly be described as delay due to the Crown, or more properly police, actions. However, the Crown did not seek any trial adjournments and even shortened up its witness list in an attempt to have the trial conclude as soon as possible. d.

Limitations on Institutional Resources - There were institutional or systemic delays due to other cases receiving higher priority, lack of staff resources or the unavailability of the Judge. e. Other Reasons for Delay - The Judge’s other duties added to the delay. 4) Prejudice to the Accused a. Liberty - There was no prejudice because the Defendant was on relaxed bail conditions. b. Security of the Person - The Defendant suffered stressors no different than any other accused person. The issue is whether that was exacerbated by the length of the delay. c.

Right to Make Full Answer and Defence - The evidence of the Crown was always readily available (except for the delay in locating the Notes). Any problems in the evidence of the Crown witnesses were resolved. The Defendant’s claim of a failing memory impairing his ability to instruct counsel is not supported by any evidence. 5) Inferred Prejudice - The overall delay here cannot be considered sufficient inferred prejudice as described in Morin and Godin. 6) Other Matters – The Askov application was not filed by Defence counsel until all of the Voir Dires had been found in favour of the Crown.

The Court must consider the seriousness of the offence and the community’s interest in having it decided on the merits. The Court should not lose sight of the seriousness of the charge which has a maximum sentence of life in prison. Entering a Judicial Stay of Proceedings in the face of the findings in this case would bring the administration of justice into disrepute. APPLICATION OF THE MORIN FRAMEWORK 1. Length of the Delay [ 63 ] The length of the delay from the swearing of the Information to the conclusion of the trial was 42.5 months. Counsel did not grossly misestimate the amount of time needed for trial.

They estimated 2.5 days when in fact the total time used was just about 3.5 days of court time. [ 64 ] What was misestimated by counsel was the length of time each stage of the trial would take and the likely necessity that the Court would wish to reserve decision after one or more of the Voir Dires. 2. Waiver [ 65 ] There was no waiver by the Defendant in this case. Defence counsel's unavailability on a couple of occasions is to be considered under Other Reasons for Delay. [ 66 ] In light of the length of the delay in the absence of waiver the matter is worthy of further investigation. 3.

Reasons for the Delay a. Inherent Time Requirements [ 67 ] The time from the swearing of the Information until the first dates scheduled for trial was approximately eleven months. There are no records available to allow the Court to conclude why those dates were chosen.

That length of time, although well in excess of the Morin guidelines, is unfortunately not unusual for the Court throughout the Province given its resource shortages. [ 68 ] The issue of complexity increasing inherent time requirements was raised by the Crown and discussed in Bains , Ghavami and Guilbride; all cases involving drug conspiracy and trafficking where there were some or all of numerous co-Defendants; Crown disclosure issues; and multiple Charter applications. [ 69 ] That level of complexity was not present in this case. The investigation and laying of the charges all took place within weeks.

The analysis of the seized items took only days once they were deemed necessary for trial and sent to the lab. The Charter issues were expected and did not take an inordinate amount of time to resolve. [ 70 ] Although this matter is not overly complex from a legal perspective it certainly is an extremely serious situation any time a person is involved in a major distribution system for sale of illegal drugs in our community. [ 71 ] The seriousness of allegations and the effect on the community was considered in Askov where the Court at paragraph 46 said: 46 ...

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 system works fairly, efficiently and with reasonable dispatch. The very reasonable concern and alarm of the community which naturally arises from 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 dealt with according to the law.

[ 72 ] Given what occurred in this case I cannot conclude that the trial estimates of counsel were the cause of any great delay. The issue surrounding most of the delay in this case once the trial commenced was with the arrangements forced on counsel and the Court in the scheduling of each Voir Dire and allowing time for reasons to be prepared after each Voir Dire in circumstance where the Court’s scheduling was already overburdened. [ 73 ] I determine that the inherent delay in this case is 11.5 of the 42.5 months. b.

Actions of the Accused [ 74 ] When the January 2009 trial dates were lost the next dates offered to the Defendant were in August of 2009. However, his counsel was not available until September 2009. I do not consider that one month delay is attributable to the actions of the Defendant. His counsel is a busy practitioner and the case law is clear that counsel need not be perpetually available to the Court. [ 75 ] However, when Defence counsel was required by the Court to continue another trial in September 2009 and this trial had to be adjourned it was noted as a Defence adjournment.

Therefore, the time from September 2009 to the next scheduled date for trial of January 2010 or a period of 4 months is attributable to the actions of the Defendant. [ 76 ] The Crown also contended that there were delays attributable to the Defendant arising from the three Voir Dires. On that point I disagree. The evidence in all of the Voir Dires was eventually admitted in the trial and as such did not unduly delay matters. In addition, Voir Dire Number 3 concerning the voluntariness of the Defendant's statement was something the Crown was required to prove in any event.

The total time taken for submissions on all three Voir Dires was less than 2.5 hours. [ 77 ] There were delays after each Voir Dire to allow the Court to provide reasons. However, those delays cannot be attributed to the Defendant simply because those rulings were adverse to the Defendant's position. The total time delay I attribute to the Defendant is 4 months c. Actions of the Crown [ 78 ] The Crown noted that it never applied for an adjournment in this case. That is correct but it does not explain the full circumstances.

The Crown through its agents the RCMP cannot escape some liability for delay. [ 79 ] Although Defence counsel indicated that he was prepared for trial in January 2009 before the Notes were discovered to be unavailable, when those trial dates were lost the issue of the Notes became more important to Defence counsel and resulted in an order of the Court in August 2009 that they be produced. [ 80 ] Even though the Crown described the Notes as extremely sensitive in nature and worthy of special handling and storage at a central repository in Vancouver somehow they were misplaced by the RCMP for several months.

In light of that, the delay from January 2010 until the trial actually commenced in July 2010, a period of 5.5 months, can be attributed to the actions of the Crown. d. Limitations on Institutional Resources i. Judicial Complement [ 81 ] As noted in the recent report of the Court, titled Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources , the day-to-day operations of the Provincial Court now face unprecedented challenges. The Executive

Summary of that report states in part: Page 2 The Provincial Court of British Columbia is the only provincial court in Canada with fewer judges today than in 2005. In fact there are 17 fewer judges, and unless further appointments are made, this will result in a loss of over 900 trial days in 2010 and over 1600 trial days in 2011. To be effective in supporting the rule of law, and to fulfill its legal obligations to the public, the Court must process cases within a reasonable time.

For most cases the Court is legally obligated to provide timely access and, as with other courts across Canada, seeks to manage its caseload according to accepted standards which reflect the relative public interest and priority of the different case types. Given the reduction in the judicial complement [number of judges] the Court is unable to "keep pace" with the new cases being presented to it. The current inventory of uncompleted cases is growing markedly, as is the delay for all case types other than youth court prosecutions.

Increasingly the Court is failing to meet its legal obligation to provide timely access to justice. This has resulted in judicial stays of adult criminal prosecutions due to unreasonable delay. . . . Page 4 For the reasons stated in the report, if the judicial complement is not restored to the 2005 level, the public interest requires the Court to allocate a more proportionate level of judicial resources to civil, family, and child protection cases, with the goal of reducing the delay for these case types over a two-year period.

The remaining resources will be allocated to adult criminal cases with priority given to in- custody and more serious prosecutions.

[ 82 ] However, the issue of judicial compliment shortages in the Cariboo Northeast District predate that report. In 2008, in the face of reduced judicial resources in the Prince George area, the Court described the priority by which cases would be heard in order to appropriately accommodate the competing needs and interests of accuseds, witnesses, litigants and the community as follows: a. Bail hearings; b. Child apprehension matters; c. Youth in custody matters; d. Urgent family matters where violence is alleged; e. Interim family matters concerning custody and access; f. Adult in custody matters; g.

Guilty pleas and sentences; h. Family and civil matters; i. Adult out of custody trials. [ 83 ] On August 3, 2010, in further response to the continued reduction in judicial resources as described in the Justice Delayed Report, the Court released a Practice Directive with regard to scheduling issues. It says in part: It is recognized that our diminishing pool of judicial resources is being increasingly applied to address criminal backlogs in a manner that is now becoming disproportionate to meeting reasonable civil, family, CFCSA needs in some locations.

Consequently, and to the degree this problem could be occurring at any given location, in each district, under the direction of the Administrative Judge, appropriate time must be returned to the non-criminal case loads when drafting future rotas. [ 84 ] This Directive further constricted the time available for scheduling out of custody criminal trials such as this case. [ 85 ] On March 31, 2005, the Provincial Court had a complement of 131 full-time and 17 part-time judges for a full-time equivalent complement of 138.65.

Today, there are 111 full-time judges and 37 part time judges for a full-time equivalent complement of 127.65; or a reduction of 8% since 2005. [ 86 ] On March 31, 2005, in Prince George there were six full-time judges serving on a regular basis the communities of Prince George, Vanderhoof, Fort St. James, Fraser Lake, Valemount, McBride, and Mackenzie. Today, there are effectively four full-time and one part-time judge, given my present duties as an Associate Chief Judge of the Court, which makes me unavailable for sitting over half the time.

The 4.5 full-time equivalent complement is a reduction of 25% since 2005. A new judge for Prince George is to be sworn in on September 19, 2011 which will assist with the present workload but will not adequately address case backlog issues. ii. Caseload [ 87 ] On March 31, 2011, the Court had 27,108 adult criminal cases pending, of which 15,943, or 59%, were over the 180 day completion guideline the Court has mandated for itself based on decisions such as Morin .

Of the 15,943 cases over 180 days, 2,371, or 15%, have been pending for more than 18 months, or 540 days. [ 88 ] On March 31, 2011, the Prince George Registry had 976 adult criminal cases pending, of which 571, or 59%, were over 180 days old. Of the 571 cases over 180 days, 74, or 13%, have been pending for more than 18 months. This case is one of those cases. [ 89 ] Upon review, of all of the delays in this matter since the first Trial Dates in January 2009 which can be attributed to limitations in institutional resources amounts to 21.5 months. e.

Other Reasons for Delay [ 90 ] On December 1, 2010, I was appointed as an Associate Chief Judge of the Provincial Court for a three year term. Those new duties absent me from sitting in the Cariboo Northeast District for approximately 60% of my working time. In addition, as an Associate Chief Judge I am expected to sit in other areas of the Province for which I have responsibility. These new duties could have impacted on my availability to conclude the trial of this matter but did not contribute to the overall delay because other factors such as lack of institutional resources intervened. 4.

Prejudice to the Defendant a. Liberty [ 91 ] There was minimal interference with the liberty of the Defendant. The bail terms were not onerous and he was able to move about with minimal restrictions. b. Right to make full answer and defence [ 92 ] Although I accept that there was some loss of clarity of the evidence over time that did not adversely affect the Defendant's ability to make full answer and defence. He must have been able to provide full instructions to Defence counsel prior to Defence counsel advising the Court that he was prepared for the trial dates in January 2009.

[ 93 ] I agree with Defence counsel’s submission that some of the Crown witnesses had some difficulty accurately recollecting some of the evidence but given that they were police witnesses they were able, in some circumstances, to refer to notes and documents. That lack of recollection was not crucial to the outcome of the case. c. Security of the person [ 94 ] 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. [ 95 ] I have carefully reviewed the evidence of the Defendant concerning the prejudice he alleges and I have considered that evidence in light of the case law. [ 96 ] The nature, type and duration of any prejudice has to be considered in light of an individual Defendant’s unique circumstances and then balanced accordingly with the delay and reasons for it and the interest of the community to have cases resolved in a timely fashion and on the merits. [ 97 ] In this case, I am not satisfied, on a balance of probabilities, that the Defendant has adequately demonstrated that he has suffered sufficient specific prejudice of the type, nature and duration to require judicial intervention on that basis. [ 98 ] However, even though the specific prejudice was not present in the type, nature and duration necessary the inherent prejudice of a 42.5 month delay to the conclusion of this matter requires consideration. [ 99 ] Such a delay, either when looked at in total, or when considered within the factors described by Sopinka J., leads the Court to the conclusion that the Defendant is entitled to the judicial intervention as described in Godin , Morin and Conway . [ 100 ] As such, it is necessary to grant the Defendant a Judicial Stay of Proceedings on the Information. [ 101 ] The fact that an unrepentant drug dealer who has been convicted of possession of cocaine for the purpose of trafficking; and while involved in the trial of this matter has been charged with further like offences; should now be able to be free of the consequences of this very serious offence because the judicial system could not accommodate his trial, within a reasonable time should alarm and concern the community.

However, all citizens, even drug dealers, are entitled to the full protection of their rights under the Charter . [ 102 ] The Supreme Court of Canada in Askov at paragraphs 47 and 59 said: 47 The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures.

When a trial takes place without unreasonable delay, with all witnesses available and memories fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated. It is no exaggeration to say that a fair and balanced criminal justice system simply cannot exist without the support of the community.

Continued community support for our system will not endure in the face of lengthy and unreasonable delays. 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 committed serious offenses are never brought to trial solely as a result o 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. [ 103 ] The Court does not control the availability of facilities, nor the providing of adequate staff resources such as sheriffs and clerks nor the appointment of a sufficient number of judges to hear cases of all types within a reasonable time. That is the duty and responsibility of the Provincial Government to the citizens of British Columbia. ________________________________ M. J. Brecknell Associate Chief Judge Provincial Court of British Columbia