R. v. Zanardo Date:, 2011 BCPC 206

Citation: R. v. Zanardo Date: 20110809 2011 BCPC 0206 File No: 28367 Registry: Kitimat /Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MIRKO ZANARDO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: Claire Ducluzeau Counsel for the Defendant: Jeremy Jensen Place of Hearing: Kitimat , B.C. Date of Hearing: July 20, 2011 Date of Judgment: August 9, 2011 [ 1 ] An Information was sworn on November 5, 2009, charging the Accused with driving while over .08 and impaired driving in Kitimat , B.C. on June 21, 2009.

The matter came to trial on July 20, 2011. [ 2 ] On July 20, 2011, the Defence made an Askov Application, arguing that the delay in bringing the Accused to trial constituted a breach of sections 7 and 11(

b) of the Charter of Rights and that a Judicial Stay of Proceedings pursuant to s. 24(1) of the Charter of Rights , ought to be ordered by the Court. [ 3 ] Both the Crown and the Defence agreed that the entire period of the delay from the date of the Information was sworn up to the date of the trial, was attributable to “institutional delay” and that no delays were attributable either to the Crown or the Defence. [ 4 ] There was a “pre-charge delay” of approximately 4 ½ months because the investigating officer was off work due to an accident.

His right hand had been seriously injured, he required surgery and was unable to write or type during that 4 ½ month period and therefore there was a delay in preparing his Report to Crown Counsel and therefore a delay in charge approval; [ 5 ] Pre-trial delays by themselves, seldom will give rise to a Judicial Stay of Proceedings. The Courts have held that a Judicial Stay of Proceedings due to pre-trial delay, should be reserved for cases where there are “exceptional or special circumstances”.

In the case at Bar , the explanation for the necessary 4 ½ month delay, cannot be viewed as the type of “exceptional” or “special” circumstances,

contemplated by the precedent decisions. See: R. v. Fagan (BC CA), [1998] BCJ 2886 (BCCA); R. v. Kalanj (SCC), [1989] 1 SCR 1594 (SCC); and R. v. MacKintosh (1998) (BC CA), 26 BCLR (2nd) 1 (BCCA). [6] The fact of a 4 ½ month pre-trial delay however, can be considered as having some limited amount of weight, when consideringthe overall delay period alleged. See R. v. Davidson

(2007) BCPC 207 (Bagnall, PCJ); R. v. Ayers

(2010) BCPC 86 (Gordon, PCJ); andR. v. Kalanj [1989] 1 S.C.J No. 71. [7] The Court in Kitimat is a Circuit Court which is held only once every week and on that one day, criminal, youth, family and civilcases are all set down for hearings; [8] There have been two recent Decisions rendered by two different Provincial Court Judges from this area of B.C., wherein, eachJudge lamented the critical shortages of resources which were leading to unfair and unconstitutional delays in bringing Accused personsto trial. See R. v. Kaiser (July 14, 2011) Prince George Registry No. 29675-1 (Brecknell, ACJ/PCJ) and R. v.

Scott (January 6, 2010)New Aiyansh, B.C. Registry No. 27419-3 (Struyk, PCJ). [9] The delay from the swearing of the Information on November 5, 2009 until the date for the trial on July 20, 2011, was 20 monthsand 12 days. [10] The case at Bar was a simple impaired/over .08 case. There was no car accident, only two police officers were involved and theywere the only witnesses scheduled to testify at the trial. [11] The 20 month and 12 day delay was strictly due to the limited “resources” of the Court in Kitimat, B.C.

At the time the trial datewas being fixed (February 10, 2010), the Kitimat Court was simply unable to accommodate an (estimated) 2 hour trial, to take placethere, before July 20, 2011. By “resources”, I mean, collectively, courtrooms, court staff and Judges. [12] I want to start with two quotations from Mr. Justice Sopinka delivering the Supreme Court of Canada’s Decision in R. v. Morin2009 SCC 26. [13] The first quotation sets out the goal that the Courts must strive towards and the second quotation sets out the guidelines to assistJudges to reach that goal. [14] At page 19, Mr.

Justice Sopinka wrote: 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’sallocations 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 intime at which the Court will no longer tolerate delay based on the plea of inadequate resources.

This period of time may be referred to asan administrative guideline (emphasis added). And at Page 14, Mr. Justice Sopinka wrote: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical formula butrather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitablylead to delay or are otherwise the cause of delay. As I noted in Smith, supra, “[i]t is axiomatic that some delay is inevitable. The questionis, at what point does the delay become unreasonable?” (p.1131). While Court has at times indicated otherwise, it is now accepted thatthe factors to be considered in analyzing how long is too long may be listed as follows: 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. [15] When a Charter violation is alleged by the Defence, the burden falls to the Defence to prove, on the balance of probabilities, thatthe violation occurred and that the just remedy, pursuant to the section 24(1) Charter analysis, is that the Court should enter a JudicialStay or Proceedings. [16] In the first eleven paragraphs, I have outlined the facts relevant to Guidelines 1, 2 and 3. The issue in this case, revolves aroundGuideline 4 – prejudice to the Accused.

[ 17 ] The Decision in this case, requires the Court to answer this question: As a result of the 20 month and 12 day delay between the date the Information was sworn and the trial date, taking into consideration that the sole cause of the delay was the result of “institutional delay” and allowing “some” consideration for the 4 ½ month unavoidable delay (not attributable to any of the parties), is there sufficient actual and significant prejudice to the Accused, so as to justify a Judicial Stay of Proceedings? [ 18 ] Many of the decided cases and the cases which were cited to me, concerned the question of how many months of delay were necessary before the Court would “infer” actual prejudice to an Accused. [ 19 ] In all Askov motions, the Accused has the burden to prove what actual prejudice they have suffered as a result of the delay.

However, in situations where the delay exceeds a certain number of months, through no fault of the Accused, the Court will infer actual prejudice to the Accused without requiring the Accused to prove by Affidavit or viva voce evidence, that they actually did suffer significant actual prejudice as a result of the delay in their case coming to trial. [ 20 ] In the case at Bar, I do not have to concern myself with what number of months of delay, will trigger the “inference” of actual prejudice.

According to the cases cited, each case is dependent upon their individual facts and the delay period which will trigger “inferred prejudice” will be in the vicinity of 21 months or more, of delay. [ 21 ] In this case, as I said, I do not have to deal with the concept of “inferred prejudice”, because the Accused provided personal evidence of his actual and substantial prejudice, by swearing and filing an Affidavit expressly addressing that issue. [ 22 ] Crown Counsel chose not to cross-examine the Accused on his Affidavit.

Instead, the Crown took the position that the Accused’s Affidavit as written, should not be accepted as sufficient proof of any actual prejudice suffered by him.

The Crown argued that the contents of the Affidavit were wholly deficient to prove the degree and type of actual prejudice that the case law envisioned as being required, before a Judicial Stay of Proceedings should be ordered. [ 23 ] It is true that the Court need not accept as true, all or any part of an Affidavit but it is significant that the Crown did not seek to challenge the truth or reliability of any facts which the Accused swore to in his Affidavit. [ 24 ] I have read and carefully considered the Accused’s Affidavit and I do accept the following facts to be proven (on the balance of probabilities) by the Affidavit: (

i) The Accused told his lawyer very early on, that he wanted his charges dealt with “sooner rather than later”. The Accused was anxious to have his trial set as quickly as possible and never wanted to put off the trial, even if it may end in a conviction with a 1 year loss of his driving privileges; (ii) The Accused currently lives and has lived his whole life, in the small community of Kitimat .

He has suffered what he referred to as, “social anxiety” because it seemed to him that everyone in town, knew of his pending criminal charges, he was very embarrassed and uncomfortable wherever he went in Kitimat – to the grocery store, the bank and when he was just out and about in the Community; (iii) The Accused genuinely felt that many people in the Community “judged him” and no longer viewed him as a responsible person and some viewed him as “not a worthy person”, in his words; (iv) The Accused had been employed full-time as a steel fabricator for Zanron Steel Fabricating Company in Kitimat for the past 20 years but due to the severe economic turn down in Kitimat , his work was reduced to only part-time, since February 2010.

The Accused needed to leave Kitimat to find full-time work but was reluctant to leave for two reasons: (1) his children, with whom he is very close live in Terrace, B.C. (about 45 minutes from Kitimat ); and (2) the costs of moving elsewhere would be significant and should he end up losing his driver’s licence, he would lose his new job and presumably have to pay more moving expenses again, to move elsewhere for work.

This hiatus in work has caused him both financial and emotional stress, given that he couldn’t really make any final decisions about moving and taking a job elsewhere, until his trial was completed and he knew what would be happening with his driver’s licence; (

v) The nature of the jobs that he would work at, generally require that he have a licence for driving to and from and during his work. He did not want to take on a new job (elsewhere in B.C.) and then be fired or have to quit, should he be convicted and lose his driver’s licence. The whole uncertainty and inability to make plans caused him further stress and anxiety over his long waiting period; (vi) The Accused was recently offered a job at a steel fabricator in Nanaimo, B.C., the job required him to have a driver’s licence and to start work by the end of June 2011.

He had to turn down this job offer for the same reasons as outlined here in Paragraph 24(iv) and (v); (vii) The nature of the work which the Accused does as a steel fabricator and welder, requires concentration or else accidents to himself or his workmates may occur. The Accused has said in his Affidavit and I believe him, that has experienced an inability to concentrate and focus 100% while he is engaged in work.

The lack of concentration is due to his mind constantly drifting back to his anxiety over existing uncertainty, his reputation in the small Community, his financial woes and his general worrying about his future. He is very concerned that he might cause some serious injuries to a co-worker if he is not fully focused at work while doing his welding and steel fabrication tasks; (viii) The Accused frankly concedes that now, his memory of the events on June 21, 2009, have significantly diminished and he said that, “I am sure my testimony in that regard would be unreliable and otherwise unhelpful to my defence”.

The Accused’s counsel also pointed out, that unlike the two police officers who were involved, the Accused never thought of writing some notes so as he would be able to refresh his memory later on, because he never thought it would take almost two years to get to trial. [ 25 ] The conclusion that I reach is that the Accused has proven on the balance of probabilities, that he has suffered significant

personal prejudice as a result of the delay in getting him to trial. [ 26 ] In my view the 21 months plus 12 days from the time the Information was sworn until the date his trial was set to start, exceeds the acceptable time delays as set out in the R. v. Morin case and as reviewed in a number of cases since then, including the very helpful review of cases undertaken by my Brother Brecknell in the R. v. Kaiser decision (supra).

In addition, the additional 4 ½ month period between the offence and the laying of the Information, although not being a necessary part of my conclusion that the delay was too long, certainly does serve to exacerbate the unconstitutional delay experienced by the Accused from November 5, 2009 to July 20, 2011. [ 27 ] Accordingly, I find that the Accused’s right to a trial within a reasonable time, as guaranteed by sections 7 and 11(

b) of the Charter , was violated and the remedy, after considering the factors in s.24(2) Analysis, is that there shall hereby be Ordered, a Judicial Stay of Proceedings. _________________________ P. R. Meyers Provincial Court Judge