R. v. Kaiser and Kaiser Date:, 2011 BCPC 168

Citation: R. v. Kaiser and Kaiser Date: 20110714 2011 BCPC 0168 File No: 29675-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN KAISER and RODNEY FAY KAISER REASONS FOR JUDGMENT RE: S. 11(

b) CHARTER APPLICATION OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Counsel for the Crown: B. Fell Counsel for the Defendant K. Kaiser: D. Jenkins, QC Counsel for the Defendant R. Kaiser: B. Gilson, QC Places of Hearing: Vanderhoof and Prince George, B.C. Dates of Hearing: July 26, August 23, and 30 th , 2010; June 20 and 21, 2011 Date of Judgment: July 14, 2011 PROLOGUE [ 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 accused 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. INTRODUCTION

[ 2 ] Kevin Kaiser and his brother, Rodney Fay Kaiser (jointly the Accused), are charged on Information number 29675 that on July 5, 2009, while unlawfully in a dwelling house they assaulted and caused bodily harm to Boyd Lackey (Mr. Lackey). Kevin Kaiser is also charged on the same date with assaulting and threatening Doreen Lackey (Ms. Lackey), Mr. Lackey’s mother. The events alleged took place at Ms.

Lackey’s residence in Fort Fraser, British Columbia. [ 3 ] By Notice of Constitutional Question filed on April 8, 2011, Kevin Kaiser alleges his rights to a trial within a reasonable time under 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. Rodney Kaiser joined in the Askov Application much later and seeks the same remedy. CROWN’S CIRCUMSTANCES OF EVENTS [ 4 ] On July 3, 2009, Mr. Lackey assaulted the Accuseds’ father in his home. Mr.

Lackey eventually was charged with, pled guilty to, and was sentenced for that offence. He contends that due to extreme intoxication at that time he has no recollection of the event but accepted his responsibility for it. [ 5 ] The Crown alleged that on July 5, 2009, at about 6:00 PM, Mr. Lackey, his daughter and his mother were at her trailer residence and had just finished dinner when a vehicle arrived. Mr. Lackey, thinking the vehicle was his ex-spouse coming to pick up his daughter went to the porch bedroom area of the residence to meet her. [ 6 ] Instead, Mr.

Lackey said that the Accused were at the door; that they entered the residence uninvited; knocked him to the bed and then assaulted him with fists and elbows. The assault lasted several minutes and caused him serious injury and left him and the room covered in blood. [ 7 ] Ms. Lackey said that hearing the commotion she came down the hall and saw what was occurring. She told the Accused to stop their assault and leave her home. She said that Kevin Kaiser came towards her, pushed her and threatened her. She retreated and called 911 for police and medical assistance.

Just about that time Kevin Kaiser confronted her again, in the presence of her granddaughter, but left when he was informed that the police had been called. [ 8 ] Under cross-examination, Mr. Lackey acknowledged a past criminal history of alcohol and drug related intoxication and violence. However, he denied: a. Being intoxicated on July 5, 2009; b. Suffering from any injuries to his face in the days before the altercation with the Accused; c. Starting the altercation with the Accused outside of his mother’s residence; d.

The injuries he received were accidentally inflicted during the altercation with the Accused. [ 9 ] Mr. Lackey did acknowledge that he has made a claim to the Criminal Injuries Compensation Board and that he was also civilly suing the Accused. [ 10 ] Constable Greg Stewart was the first member of the Royal Canadian Mounted Police to attend at Ms. Lackey’s residence on July 5, 2009. He described his observations of and dealings with Mr. Lackey and Ms. Lackey and the general condition of Ms. Lackey’s residence. He also took photographs of Mr. Lackey’s injuries and the area of the residence where Mr.

Lackey said the assault occurred. [ 11 ] Eugene Walsh, who was with Mr. Lackey on July 3, 2009, when Mr. Lackey assaulted Mr. Ed Kaiser, said he received telephone calls in the weeks after that event which he believed to be from Kevin Kaiser and later Rodney Kaiser. In the earlier calls he was threatened and in the later call the caller stated words to the affect that Mr. Lackey had been beaten and was going to the hospital. [ 12 ] Dr. Christine Kurz, a surgeon, was a qualified as an expert and gave evidence concerning the serious nature of Mr.

Lackey’s facial injuries and she described the surgery she performed to repair those injuries. [ 13 ] Crown has called all the evidence in its case. [ 14 ] The Accuseds’ counsel brought the Askov Application prior to advising the Court of their intentions concerning the calling of defence evidence, although counsel for Kevin Kaiser advised the Court he had witnesses available to give evidence over the last few days of the trial. TIME LINE [ 15 ] Given the nature of the application before the Court, it is necessary to set out the timeline of events that have occurred. [ 16 ] On July 3, 2009, Mr.

Lackey assaulted Mr. Ed Kaiser, the father of the Accused. [ 17 ] On July 5, 2009, the incident which resulted in these charges occurred in the vicinity of Mr. Lackey’s mother’s residence in Fort Fraser. [ 18 ] On July 6, 2009, the Accused were arrested and released on Promises to Appear and Undertakings to have no contact with Mr. Lackey or Ms. Lackey. [ 19 ] On September 18, 2009, the Information was sworn.

[ 20 ] On September 21, 2009, the Accused made their first appearance in court in Vanderhoof. [ 21 ] On October 19, 2009, the Arraignment Hearing was held. At the Arraignment Hearing, Crown estimated one day for their case. Kevin Kaiser’s counsel, Mr. Jenkins, Q.C., estimated two days and Rodney Kaiser’s counsel, Mr. Gilson, Q.C., estimated two and one half days. [ 22 ] On October 21, 2009, the Judicial Case Manager (JCM) set a Trial Confirmation Hearing date of June 14, 2010, in Vanderhoof and Trial Dates of July 26, August 23, and August 30, 2010 in Vanderhoof.

There was no evidence presented regarding any trial dates that might have been available earlier than the dates fixed. [ 23 ] On June 8, 2010, Mr. Jenkins on behalf of Kevin Kaiser indicated to the JCM his wish to bring an application for third party records concerning Mr.

Lackey’s previous medical treatments (the Documents Application) on June 14, 2010, at the Trial Confirmation Hearing. [ 24 ] On June 9, 2010, the Crown advised the JCM that they had not received any materials for the Documents Application, advised that it may take more than one hour to be heard and as such was not appropriate to be dealt with at a Trial Confirmation Hearing. [ 25 ] On June 10, 2010, the JCM offered all counsel an additional six dates before the first trial date for the hearing of the Documents Application. [ 26 ] On June 14, 2010, at the Trial Confirmation Hearing the Court ordered Mr.

Jenkins to ensure that all third parties were served with the Notice of the Documents Application and that he was to provide the JCM with an estimate of the time necessary for the Application to be heard before a date would be fixed. [ 27 ] On June 15, 2010, Mr. Jenkins estimated the Documents Application would require one and one half to two hours.

The Crown maintained its estimate of one day. [ 28 ] On June 17, 2010, the JCM advised counsel that additional dates that had been offered were no longer available and that the Documents Application would have to be heard on the first day of trial, July 26, 2010. [ 29 ] On July 26, 2010, the trial commenced in Vanderhoof. Numerous other matters were scheduled on the Court’s list that day, including people in custody, people wishing to plead guilty and be sentenced, and other miscellaneous applications.

Those other matters occupied the Court’s time throughout the morning session and in the afternoon session until 2:55 PM. [ 30 ] The matter of the Documents Application was addressed for 15 minutes in the afternoon and subsequently adjourned to August 23, 2010. The direct evidence of Ms. Lackey took 45 minutes. There were discussions between the Court and counsel for ten minutes. The total court time available for this case was one hour and ten minutes. [ 31 ] On August 23, 2010, the second day of trial was held in Vanderhoof. Several other matters were briefly addressed by the Court.

The Documents Application was stood down briefly to allow Mr. Lackey to get independent legal advice and then was subsequently addressed by counsel. After submissions of counsel, the Court stood down to consider its decision and provided reasons concerning the documents which were at issue, ruling the documents were not relevant to the proceeding and would not be admitted in evidence. The total time to resolve the Documents Application was 65 minutes. That was followed by further direct and then cross-examination evidence of Doreen Lackey for 80 minutes, the direct and cross-examination of Cst.

Greg Stewart for 45 minutes and the direct and cross-examination evidence of Eugene Walsh for 50 minutes. The total amount of court time available for this case was four hours. [ 32 ] On August 24, 2010, the Crown contacted both Defence counsel to advise that other more urgent and more serious cases would probably take up most of the August 30, 2010 court sitting and suggested cancelling that date and contacting the JCM to find two additional days to complete the trial. No reply was forthcoming from Defence counsel. [ 33 ] On August 30, 2010, the third day of trial was held in Vanderhoof.

Many other cases were scheduled for that day, including a Preliminary Inquiry, a trial of a sexual assault, and several other matters which needed to be spoken to and then adjourned due to lack of court time. The direct and cross-examination evidence of Dr. Christine Kurz took 40 minutes. Further discussions with counsel about other days for the trial occupied five minutes.

The total court time available for this case was 45 minutes. [ 34 ] On July 26, August 23 and August 30, 2010, the Court actually sat (not including breaks and lunch) a total of 13.5 hours but was only able to devote a total of less than six hours to this case. [ 35 ] On August 31, 2010, the JCM offered 20 continuation dates in Fraser Lake, Vanderhoof and Prince George for the conclusion of the trial and noted that Mr.

Jenkins was generally unavailable for most dates offered until approximately May 2011. [ 36 ] On September 3, 2010, the JCM raised the issue of continuing the trial in Prince George as there would be more dates available. The Crown agreed to the suggestion. The JCM asked counsel for continuation date estimates noting that Crown required one half day to conclude its case.

There was no response from Defence counsel. [ 37 ] On September 9, 2010, the JCM noted that Defence counsel declined to agree to transfer the file to Prince George to conclude the trial. [ 38 ] On September 10, 2010, the Crown call dated the matter for September 22, 2010, to address the lengthy delay to the continuation dates for the trial. That call date was adjourned to October 28, 2010. [ 39 ] On October 8, 2010, the JCM offered continuation dates in December 2010 and May and June 2011.

Defence counsel call dated the matter of the Crown’s Application which had been adjourned to October 28, 2010, to October 13, 2010, to address the matter before Administrative Judge O’Byrne as both Defence counsel were unavailable for the October 28, 2010 appearance.

[ 40 ] On October 13, 2010, after hearing submissions from counsel, Administrative Judge O’Byrne confirmed the trial dates of summer 2011. [ 41 ] On October 22, 2010, the JCM advised counsel of new dates available in November 2010 but Mr. Gilson was unavailable. [ 42 ] On December 22, 2010, the JCM advised counsel of the availability of 18 new dates in January through March 2011.

The Crown indicated that it was generally available those dates with minor exception but Defence counsel both advised they were not available. [ 43 ] On January 14, 2011, the JCM advised counsel of two newly available dates in April 2011. There was no reply from Defence counsel to that information. [ 44 ] On March 11, 2011, Mr. Gilson applied to be removed as counsel of record for Rodney Kaiser due to a lack of contact with his client. That application was adjourned to March 30, 2011. On the same date, Mr. Jenkins raised the issue of an Askov Application. The Crown advised Mr.

Jenkins about what material would be expected with regard to Affidavits and transcripts for such an Application. [ 45 ] On March 24, 2011, Mr. Jenkins’ office suggested various dates for the Askov Application hearing in May or June 2011. [ 46 ] On March 30, 2011, Mr. Gilson withdrew his application to be removed as counsel of record for Rodney Kaiser as he had made contact with his client. [ 47 ] On April 6, 2011, Crown advised that they were available for a variety of dates for the Askov Application and suggested June 1, 2011. The Crown again inquired of Mr.

Jenkins’ office regarding the material in support. [ 48 ] On April 7, 2011, the JCM advised counsel that the court was not available until June 14, 2011. [ 49 ] On April 8, 2011, a Notice of Application and Constitutional Issue was filed by Mr. Jenkins and he advised the Crown that materials would be filed and delivered. [ 50 ] On May 18, 2011, the Crown advised Mr. Jenkins’ office that it still had not received the transcripts and Affidavits listed in the Notice of Application. [ 51 ] On May 26, 2011, the Crown renewed its request for materials with Mr.

Jenkins’ office. [ 52 ] On June 10, 2011, the Crown further advised Mr. Jenkins’ office that the materials had still not been provided. [ 53 ] Between June 10 and 13, 2011, there were exchanges of emails between the Crown and Mr. Jenkins’ office about the materials not being properly provided. [ 54 ] On June 14, 2011, Mr. Jenkins and the Crown appeared to address the Askov Application. After hearing submissions from counsel, the Court adjourned the Application to June 22, 2011, set time limits for information to be exchanged between the parties and to allow Mr.

Gilson to decide whether or not he wished to participate in the Askov Application on behalf of Rodney Kaiser. [ 55 ] On June 20, 2011, the direct and cross-examination evidence of Mr. Lackey took 140 minutes. The Askov Application commenced and took 115 minutes. The total court time available for this case was 4 hours and 15 minutes. [ 56 ] On June 21, 2011, the Askov Application continued with cross-examination of Kevin Kaiser for 10 minutes and cross- examination of Rodney Kaiser for 20 minutes. The Askov Application continued and concluded and took 105 minutes.

The decision on the Askov Application was adjourned to July 14, 2011. The total court time available for this case was 2 hours and 15 minutes. ASKOV APPLICATION EVIDENCE [ 57 ] In addition to relying on the delay amounting to inferred prejudice, the Accused filed Affidavits and were cross-examined by the Crown on the individual prejudice each contend they suffered. [ 58 ] Kevin Kaiser is a school teacher in Kelowna. In the spring of 2009 he was promoted to Vice-Principal but was unable to continue in that position past June 2010 due to these charges.

He believed he could be dismissed from his position due to these charges. [ 59 ] As a person of Aboriginal ancestry, he was also very interested in and very qualified for the District Aboriginal Principal’s position which became available, but he was not able to apply for that position due to these charges. [ 60 ] His inability to maintain the Vice-Principal’s position and apply for the District Aboriginal Principal’s position caused a financial burden to him due to a significant loss of income compared to the teaching position he now occupies. [ 61 ] The financial burden was exacerbated by of the cost of retaining counsel and travelling from Kelowna on numerous occasions for court appearances.

Those combined causes have resulted in Kevin Kaiser having to sell assets, go into debt and have his wife, Mimi Kaiser, return to work full time as a Pharmacist leaving their two children, ages four and seven in daycare. [ 62 ] Kevin Kaiser said he also suffers from anxiety and depression which interfered with his work and lead him to seek assistance from a First Nations Elder. [ 63 ] The delay has also affected his wife, who has developed stress, depression and migraine headaches causing her to seek out regular medical assistance and attention. [ 64 ] Rodney Kaiser is a sawmill worker in Engen, BC.

He said these proceedings have caused him unique prejudice by:

a. Interfering with his work to the point his employer sent him to counselling; b. Contributed to the breakup of his marriage; c. Caused difficulties and embarrassment when trying to cross the Canada/USA border; d. Made him the subject of continuous small town gossip; e. Have him considering bankruptcy due to the financial pressures of loss of work due to court appearances and retaining counsel. [ 65 ] In cross-examination neither of the Accused acknowledged knowing about the court schedules for either of their counsel or that they knew their counsel to be senior, eminent criminal defence counsel with very busy practices and limited availability. THE LAW The Charter [ 66 ]

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. [ 67 ]

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. [ 68 ] 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 [ 69 ] 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 iv. R. v. Kovacs – Tatar 2004 CanLII 42923 (ON CA) , 2004 CarswellOnt 4805 - Sex assault, 16 months, stay refused v. R. v. Fagan 1998 CanLII 5018 (BC CA) , [1998] B.C.J. No. 2886 (BCCA) – Drugs, 33 months, stay refused vi. R. v. Loewen (1997) 1997 CanLII 4338 (MB CA) , 122 C.C.C. (3d) 198 (Man. C.A.) – Money laundering, 33 months, referred back to trial court vii. R. v. Allan (1996) 1996 CanLII 4011 (ON CA) , 110 C.C.C. (3d) 331 (Ont.

C.A.) – Fraud, 46 months, stay refused c. From the Trial Courts: i. R. v. Trenaman 2011 BCPC 62 (CanLII) , 2011 BCPC 0062 – Impaired/.08, 26 months ii. R. v. Kiland unreported, January 7, 2011, Prince George Registry No. 28197 (BCPC) – Impaired, bodily harm, 21 months iii. R. v. Ghislieri 2010 BCPC 321 (CanLII) , 2010 BCPC 0321 – Impaired/.08, 25 months iv. R. v. Cantrill 2010 BCPC 318 (CanLII) , 2010 BCPC 0318 – Impaired/.08, 32 months

v. R. v. Moskal 2010 BCPC 294 (CanLII) , 2010 BCPC 0294 – Impaired/refusal, 32 months vi. R. v. Vogt 2010 BCPC 281 (CanLII) , 2010 BCPC 0281 – Wildlife, 26 months vii. R. v. Archibald 2010 BCPC 273 (CanLII) , 2010 BCPC 0273 – Impaired/.08, 36 months viii. R. v. McComber 2010 BCPC 255 (CanLII) , 2010 BCPC 0255 – Impaired/refusal, 20.5 months ix. R. v. Baldini 2010 BCPC 254 (CanLII) , 2010 BCPC 0254 – Fraud, 17 months, stay refused x. R. v. Teske 2010 BCPC 246 (CanLII) , 2010 BCPC 0246 – Impaired/.08, 18 months xi. R. v. Pederson 2010 BCPC 224 (CanLII) , 2010 BCPC 0224 – Traffic ticket, 17.5 months xii. R. v.

Ollenberger 2010 BCPC 93 (CanLII) , 2010 BCPC 0093 – Impaired/.08, 18 months xiii. R. v. Young , unreported, December 16, 2009, Dawson Creek xiv. Registry No. 28419 (BCPC) – Impaired/refusal, 17 months xv. R. v. Oliveira 2009 CanLII 14794 (ONSC) – Impaired/.08, 16 months xvi. R. v. Chen 2009 ONCJ 417 – Drugs, 21 months xvii. R. v. Forsythe , unreported, March 15, 2009, Smithers Registry xviii. No. 19480 (BCPC) – Impaired/.08, 34 months xix. R. v. Holowaty 2008 BCPC 364 (CanLII) , 2008 BCPC 0364 – Sexual assault, 22.5 months xx. R. v. Carapiet 2008 ONCJ 453 – Impaired/.08, 11.5 months xxi. R. v.

Adair 2008 ONCJ 554 – Impaired/.08, 14 months xxii. R. v. Tricker 2008 ONCJ 510 - Impaired/.08, 17 months xxiii. R. v. McCullough 2008 ONCJ 509 - Impaired/.08, 25 months xxiv. R. v. Allain 2008 NBPC 49 - Impaired/.08, 12.5 months xxv. R. v. Newbold 2002 BCPC 142 - Impaired/.08, 17 months xxvi. R. v. Alliston 2000 BCPC 60 - Impaired/.08, 20 months xxvii. R. v. Pilon 1996 CanLII 8447 (BCSC) – Aggravated assault, 48 months, stay refused SUBMISSIONS Preliminary Issues [ 70 ] The Crown submitted that both with regard to the Documents Application and the Askov Application, Mr.

Jenkins provided a lack of proper notice and delayed in delivering materials. The Crown described it as a complete lack of compliance with the procedure necessary as described in Fagan . [ 71 ] The Crown submitted that in light of that and other cases the threshold test to hold a hearing had not been met by Kevin Kaiser and that the Court should not entertain the Askov Application. On that point I disagreed. Kevin Kaiser [ 72 ] Mr. Jenkins’ submissions can be summarized as follows: a. On two of the three trial days in 2010, other matters scheduled on the Court list occupied the vast majority of the Court’s time.

The decision to have those other cases proceed in advance of this case was made by the Crown; b. The application for directions brought before Administrative Judge O’Byrne on October 13, 2010, was intended to seek earlier dates for the continuation of this trial and to have the Court provide directions as to whether or not counsel should free up their calendar from other cases to accommodate this trial. The Court determined that the

schedule of having the trial continue in the summer of 2011 should remain; c. As described in the Affidavits the prejudice to Kevin Kaiser and his family has been dramatic both in terms of lost financial stability and in the emotional distress to him and his family; d. The delay in concluding this matter would not have been extensive had the Court had the three days in 2010 to devote to this case instead of only the partial days provided. The trial could have been concluded had the three days been fully utilized; e. The strain on judicial resources is a reality in this region and it is getting worse rather than better and thereby causing delays. That

strain is not the Court’s fault or the Accuseds’ fault but may be the fault of the Crown or government. [ 73 ] In reviewing the case law he provided Mr. Jenkins noted some particular similar issues to this case. [ 74 ] In Adair the court at paragraph 12 said: 12 The Crown is charged with the responsibility to bring an accused person to trial in a timely manner. Accordingly, the accused person has no obligation to move the case along expeditiously although he or she may not deliberately or make a calculated attempt to delay the process. [ 75 ] In that case, Ms.

Adair’s education and employment opportunities were impacted, causing a special prejudice to her. [ 76 ] In Oliveira , the court found that the accused suffered actual prejudice of a financial nature due to his counsel having to prepare for additional days of trial when the trial was adjourned. [ 77 ] In Teske , the court found that loss of job opportunities and advancement amounted to prejudice. [ 78 ] In Carapiet , the court at paragraph 17 said: 17 There was no waiver of s. 11 (

b) during any of the delay. The unavailability of counsel for any specific date does not constitute waiver: [ 79 ] In Godin , the court at paragraph 23 said: 23 (part) … Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (

b) purposes, require defence counsel to hold themselves in a state of perpetual availability. . . . Further, the court found that rescheduling of a trial does not stop the delay clock. [ 80 ] In Alliston , the court at paragraph 32 said: 32 Further, I find the accused’s unavailability on an earlier date to be similar in the circumstances at hand to the unavailability of counsel. The accused, as counsel in this court, should not be required to completely rearrange his

schedule to accommodate an early trial date where the adjournment is caused by the actions of the Crown. . . . [ 81 ] In Ollenberger , the court noted the nature of the lack of resources available in the Cariboo Northeast District. Rodney Kaiser [ 82 ] Mr. Gilson’s submissions can be summarized as follows: a. Court resources are strained even more now than they were in the past, things are getting worse not better; b. Due to Crown decisions, the time actually used for the trial over the three days in 2010 were less than one half of the time available.

The Crown made decisions about which cases would proceed in advance of others knowing that the Accused in this matter both had Queen’s Counsels as their lawyers, that their lawyers were busy practitioners and that one of the Accused was from out of town; c. Defence counsel took no steps to delay the matter; d. Rodney Kaiser has suffered real prejudice particularly from a financial perspective, from a personal perspective, from small town gossip and from the embarrassment caused to him while trying to cross the border; e. The delay in having this matter proceed and conclude was due to choices made by the Crown.

Other cases were given higher priority, often for legitimate reasons. The government has not provided the necessary judicial and court resources thereby further exacerbating problems arising from delay; f. This case is not complex, it boils down to credibility. Does the court believe Mr. Lackey and Ms. Lackey or the Defence theory of what occurred; g. The infrequency of court sittings in Fraser Lake and Vanderhoof combined with very busy lists makes conducting trials in those locations a challenge.

Defence counsel should not be criticised, or their clients penalized for wanting the trial to occur close to the community where the events occurred. In addition, many of the proposed defence witnesses reside near those communities; h. Defence counsel did what they could to make themselves available even going before the Administrative Judge to seek directions as to whether or not they should cancel other trial matters to make themselves available. In the end the Court chose to keep the trial dates arranged by the JCM; The Crown [ 83 ] The Crown’s submissions can summarized as follows: a.

Any time lost between the first three trial dates and the continuation should be considered inherent or neutral in the analysis; b. The Court can consider the delay something that the Accused used not as a protective shield but as a weapon;

c. The Court must consider the Accuseds’ actions and inactions as being inconsistent with a speedy trial; d. There was no evidence that the Accused wanted to push forward with the trial. It was the Crown that call dated the matter before Administrative Judge O’Byrne for earlier dates. In general, the Accuseds’ counsel showed lack of cooperation and participation with the JCM and the Crown to obtain earlier dates; e. The Accused were uncooperative by refusing to agree to move the matter to Prince George for continuation where earlier and additional dates were available; f.

The Accuseds’ choice of counsel may be considered by the Court with regard to delay and may be considered to be a waiver given their counsels’ busy schedule; g. The case is more complex than Defence counsel suggests. That complexity affected the delay in the following ways: i. the time needed for the Documents Application; ii. the expert evidence required; iii. Mr. Gilson losing contact with his client; iv. the fact that there are two Accused; v. the fact that each of the Accused retained senior busy counsel; h. Mr.

Jenkins did not properly file and serve the materials for the Documents Application requiring the Court to intervene and directing him to do certain things in a certain time line. That caused further delay because the Documents Application had to be heard on a trial day rather than having it proceed before the trial commenced. The facts alleged in the Documents Application were well known to Mr. Jenkins, well before the Application was actually brought; i. Mr.

Jenkins’ delay in bringing the Askov Application in circumstances where all the facts were known months before along, with the late delivery of material to the Crown, delayed the hearing of the Askov Application to the point where it had to be heard on a trial date rather than in advance. Mr. Gilson’s late addition to the Askov Application caused further delay. THE MORIN FRAMEWORK [ 84 ] In Morin , Sopinka J. described a framework approach to determine whether delay has become unreasonable by considering four factors; one which has subsidiary components.

That framework and the judicial direction accompanying it are quoted below. [ 85 ] Prior to discussing the four factors, Sopinka J. described the purpose of s. 11(

b) of the Charter in paragraphs 21 through 25 where he said: 21 The primary purpose of s. 11(

b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this court. . . . 22 The individual rights which the

section seeks are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial. 23 The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. 24 The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason. . . “Trials held within a reasonable time have an intrinsic value.

The constitutional guarantee ensures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused, …” In some cases, however, the accused has no interest in an early trial and society’s interest will not parallel that of the accused. 25 There is, a societal interest that is by its very nature adverse to the interests of the accused. In Conway , a majority of this court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. . . .

As the seriousness of the offence increases so does the society demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [ 86 ] In paragraphs 81 through 83, McLachlin J. (as she was then) in concurring reasons said: 81 It is easy, in considering the factors which can bear on that determination, to lose sight of the true issue at stake – the determination of where the line should be drawn between conflicting interests.

On the one hand stands the interest of society in bringing those accused of crimes to trial, of calling them to account before the law for their conduct. It is an understatement to say that this is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of crimes. When those charged with criminal conduct are not called to account before the law, the administration of justice suffers.

Victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging the most fundamental of its tasks. 82 On the other side of the balance stands the right of a person charged with an offence to be tried within a reasonable time. When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused

persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice. 83 The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication.

In the final analysis, the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. 1. The Length of the Delay [ 87 ] In paragraphs 30 and 31, Sopinka J. said: 30 . . . this factor requires the court to examine the period from the charge to the end of the trial. Charge means the date on which an information is sworn or an indictment is preferred. 31 . . . An inquiry into unreasonable delay is triggered by an application under s. 24(1) of the Charter .

The applicant has the legal burden of establishing a Charter application. The inquiry, which can be complex . . . should be only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness. 2. Waiver of Time Periods [ 88 ] In paragraphs 32 and 33, Sopinka J. said: 32 . . .

If by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted. 33 This court has clearly stated that in order for an accused to waive his or her rights under s. 11 (b), such waiver must be clear and unequivocal with the full knowledge of the rights the procedure was enacted to protect and the effect that waiver will have on those rights. . . . 3.

Reason for the Delay [ 89 ] In paragraph 35, Sopinka J. said: 35 If the application by an accused is not resolved by reason of the principles of waiver, the court will have to consider the other explanations for delay. Some delay is inevitable. Courts are not in session day and night. Time will be taken up in processing the charge, retention of counsel, applications for bail and other pre-trial procedures. Time is required for counsel to prepare. Over and above these inherent time requirements of a case, time may be consumed to accommodate the prosecution or defence.

Neither side, however, can rely on their own delay to support their respective positions. When a case is ready for trial a judge, courtroom or essential court staff may not be available and so the case cannot go on. This latter type of delay is referred to as institutional or systemic delay. . . a. Inherent Time Requirements [ 90 ] In paragraph 36, Sopinka J. said: 36 All offences have certain inherent time requirements which inevitably lead to delay . . . The complexity of the trial is one requirement which has often been mentioned.

All other factors being equal, the more complicated the case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. . . . Each case will bring its own set of facts which must be evaluated. Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges. [ 91 ] How to categorize any delays occasioned by inaccurate trial estimates of counsel was raised in submissions.

It was addressed in Allen , in paragraph 27 , where the Court said: 27 I turn next to the length of delay which resulted when the case was adjourned. . . When addressing s. 11 (b), one must consider the inherent time requirements needed to get a case into a system and to complete that case . . . Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate . . . The inherent time requirements needed to complete a case are considered to be neutral in the s. 11 (

b) calculus. The recognition and treatment of such inherent time requirements in the s. 11 (

b) jurisprudence is simply a reflection of the reality of the role in which the criminal justice system operates. . . When a case requires additional court resources, the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. b. Actions of the Accused [ 92 ] In paragraph 39, Sopinka J. said: 39 This aspect of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have cause delay. In this

section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

c. Actions of the Crown [ 93 ] In paragraph 41, Sopinka J. said: 41 As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requests by the Crown, failure or delay in disclosure, change of venue motions, etc. ... d. Limits on Institutional Resources [ 94 ] In paragraphs 42, 43 and 45, Sopinka J. said: 42 Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(

b) of the Charter . It was the major source of the delay in Askov . As I have stated, this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In utopia, this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11 (

b) was either conceived or in which it operates. . . . 43 How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11 (

b) meaningless. The court cannot simply accede to the government’s allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resources limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice.

There is a point in time at which the court will no longer tolerate delay based on the plea of inadequate resources. . . . 45 The purpose of the suggested period was not therefore that it was to be treated as a limitation period and inflexible. The purpose in expressing a guideline is two-fold. First, as I have already indicated, it is to recognize that there is a limit to the delay that can be tolerated on account of resource limitations. Second, it is to avoid each application pursuant to s. 11 (

b) being turned into a trial of the budgetary policy of the government as it relates to the administration of justice. . . . [ 95 ] Those comments echoed Askov where the Court at paragraph 56 said: 56 The right guaranteed by s. 11(

b) is of such fundamental importance to the individual and of such significance to the community as a whole 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 adequate funding, personnel and facilities for the administration of criminal justice. As we do not live in such a world, some allowance must be made 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 same case, Lamer J. gave clear warning of the dangers that would ensue from permitting the lack of institutional resources to constitute an acceptable excuse for unreasonable delays. At page 935 he states: It is imperative, however, that in recognizing the need for such a criterion we do not simply legitimate current and future delays resulting from inadequate institutional resources. For the criterion of institutional resources, more than any other, threatens to become a source of justification for prolonged and unacceptable delay.

There must, therefore, be some limit to which inadequate resources can be used to excuse delay and impair the interests of the individual. e. Other Reasons for Delay [ 96 ] In paragraph 54, Sopinka J. said: 54 There may be reasons for delay other than those mentioned above, each of which should be taken into consideration. As I have been at pains to emphasize, an investigation of reasonable delay must take into account all reasons for the delay in an attempt to delineate what is reasonable for the case before the court.

One such factor which does not fit particularly well under any other category of delay is that of actions by trial judges. . . . [ 97 ] The issue of co-counsels’ schedules being considered as Other Reasons for Delay was considered in Bains where the Court at paragraph 30 said: 30 The trial judge found that the actions of the co-accused were significant contributors to the delay.

He observed that the number of co-accused resulted in an unavoidable lengthy intake period, stating at paragraph 43: The proper administration of justice requires that consideration be given to the calendars of busy counsel as was done when Mr. Bains’ counsel found himself unavailable last fall. The problem is compounded when the calendars of several counsel need to be taken into account.

This sort of scheduling issue will not drive the court’s decision on a delay application unless there is a clear indication that one or more parties are seeking to avoid the setting of a date within a reasonable period of time . . . [ 98 ] Morin does not explicitly direct the delay must be specifically apportioned among waiver and the five components, but Ghavami endorsed such an approach where the Court at paragraph 53 said:

53 By deliberately assigning relative weight to the different causes of delay and balancing them against one another, the judicial reasoning process becomes transparent. Although balancing will inevitably be fact specific and contextual, it is important that the court’s reasoning process not be opaque, so that the accused, the Crown and the public are able to identify why or not a particular delay is unreasonable. [ 99 ] The necessity to divide up the delay among the different components must be contrasted with the view in Conway where the majority of the Court 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. In a case where each individual period, taken in isolation from the others, may constitute a reasonable delay, the total period may nevertheless be unreasonable for the purposes of s. 11 (b). . . . However, nothing prevents a court from focusing on specific time periods which may be significant in the overall assessment, as going to the weight to give to specific delays as opposed to their reasonableness. 4. Prejudice to the Accused [ 100 ] In paragraphs 56 through 58, Sopinka J. said: 56

Section 11(

b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion. We have decided in several judgments, including the unanimous judgment in Smith , supra, that the right protected by s. 11 (

b) is not restricted to those who demonstrate that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. . . . 57 This court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial. While it was not necessary for the accused to assert her right to be tried within a reasonable time, strong views have been expressed that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of the accused. . . . As also noted by Cory J. in Askov , supra “the s. 11 (

b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused”. This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11 (

b) is to expedite trials and minimize prejudices and not to avoid trials on the merits. Action or non- action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. . . Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay. [ 101 ] In paragraph 87, McLachlin J., in concurring reasons, said: 87 An accused person may suffer little or no prejudice as a consequence of a delay beyond the expected and normal. Indeed, an accused may welcome the delay.

On the other hand, an accused person can suffer great prejudice because of the delay. Where the accused suffers little or no prejudice, it is clear that the consistently important interest in bringing those charged with criminal offences to trial outweighs the accused’s and society’s interest in obtaining a stay of proceedings on account of delay, because the consequences of the delay are not great.

On the other hand, where the accused has suffered clear prejudice which cannot be otherwise remedied, the balance may tip in the accused’s favour and justice may require a stay. [ 102 ] Those concerns surrounding prejudice and the accused’s use of the delay to their advantage, as discussed in Askov and Morin was also commented on in Pilon , where Parrett, J. at paragraphs 29 and 30 said: 29 The problem arising from these decisions lies not in the broad underlying principles but in their application in a process which is both overcrowded and one which can be easily manipulated to delay matters.

The underlying, but unstated premise on which these decisions turn is that the accused wishes an early trial. With the greatest of respect what most, if not all, accused want is a favourable result. Many accused have no interest in any early trial date, particularly if delay improves the chance of a favourable result. 30 In structuring the tests in the way it has, the Supreme Court of Canada has isolated the factors to be considered and balanced. In my respectful view, they did not intend to place in the hands of an accused, a weapon to be used by effective manipulation, to avoid a trial on the merits.

It is this very factor which gives rise to the subjective components of the analysis at both stages of the consideration of such an application by the trial judge. Although the decisions in Askov and Morin clearly limit the concept of waiver by an accused to circumstances where it can be demonstrated that the waiver is “. . . informed, unequivocal and freely given . . .” that does not end the matter. It is in the first stage when the court is compelled to consider whether a given delay is reasonable or unreasonable that all relevant factors must be considered these include such matters as (

a) the length of the delay (

b) waiver and (

c) the reasons for the delay. In the second stage the competing interests must be balanced. [ 103 ] The issue of prejudice to the accused was revisited in Godin where Cromwell J., in paragraphs 30 and 31 said: 30 Prejudice in this context is concerned with the three interests of the accused that s. 11 (

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. . . . 31 The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin , at p. 81, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn”. . . . APPLICATION OF THE MORIN FRAMEWORK 1. Length of the Delay

[ 104 ] Calculation of the length of delay is complicated in this case because the end of the trial is not readily ascertainable at this time. Defence counsel have not advised the Court (but they have intimated) whether or not they will be calling evidence. [ 105 ] If the Defence does decide to call evidence, given the witnesses Mr. Jenkins’ suggested he might call, it is my estimate that the case would last a further three full days and that would extend the time required to conclude the matter considerably. [ 106 ] The Defence has suggested an alternate theory regarding how Mr.

Lackey was injured which was rejected by both him and Ms. Lackey in their evidence. Without calling evidence, the Defence may be limited in how they advocate that Mr. and Ms. Lackey’s evidence should be rejected. [ 107 ] Even if the Defence does not call evidence, submissions on the Crown’s evidence still needs to be done and that will occupy at least one half day or longer. Given my present availability it is unlikely time would be available to hear any submissions until the late fall or winter of 2011.

If Defence evidence is called it is quite probable that a continuation would not be able to be accommodated until the spring of 2012. [ 108 ] Neither the Crown, nor either Defence counsel properly estimated the time necessary for the trial. [ 109 ] Even if all three days in 2010 had been fully available for the hearing of this matter, they would have just barely been enough for the resolution of the Documents Application and the Crown’s case. It still would have required additional time either for submissions on the Crown’s case or alternatively the calling of Defence evidence.

That would have added an additional one to three days to the conclusion of this matter. [ 110 ] However, for the purposes of my analysis of the Askov Application, I will assume the trial will end without Defence evidence being called. I estimate that the legal argument may well be able to be concluded and reasons given by December 18, 2011, making the delay of a total of 27 months from the date the Information was sworn; the time Morin directs me to consider. 2.

Waiver [ 111 ] Despite the Crown’s assertions to the contrary surrounding the Accuseds’ choice of counsel amounting to a waiver, I am unable to conclude that either of the Accused specifically waived their rights with regard to this matter. [ 112 ] In this case, any delays occasioned by Defence counsel’s unavailability cannot be considered to be a waiver but may be considered under the heading Other Reasons for Delay as suggested in Bains . [ 113 ] Given the length of the delay and the absence of any waiver, I conclude the delay is worthy of further investigation. 3. Reasons for the Delay a.

Inherent Time Requirements [ 114 ] The time from the swearing of the Information until the first three days scheduled for trial was approximately eleven months.

There are no records available to allow the Court to conclude why those dates were chosen but it is common knowledge that there is a lack of available sitting time in Vanderhoof because it is a satellite court facility. [ 115 ] I also note that Kevin Kaiser is a teacher and conducting the trial in the summer would have provided a measure of convenience to him. [ 116 ] There was disagreement between counsel as to whether or not the complexity of this case added to the necessary inherent time requirements. [ 117 ] I disagree with the Crown’s suggestions that the calling of expert evidence, the fact that there are two Accused and that each of the Accused has separate counsel or the experience and availability of those counsel adds to the complexity of the case. [ 118 ] I agree with Mr.

Gilson’s submissions that this case boils down to a credibility contest with regard to what occurred on July 5, 2009. [ 119 ] The issue of complexity increasing inherent time requirements was discussed in Bains , Ghavami and Guilbride; all cases involving drug conspiracy and trafficking where there were some or all of numerous co-accused; Crown disclosure issues; and multiply Charter applications. That was not the case here. [ 120 ] Although this matter is not particularly complex from a legal perspective it certainly is extremely serious.

If the evidence of the Crown prevails and the Accused are convicted they will be convicted on the basis that their actions consisted of two vigilantes affecting a home invasion, viciously attacking Mr. Lackey and terrorizing Ms. Lackey and her granddaughter. [ 121 ] Seriousness of allegations and the effect on victims was considered in Askov where the Court at paragraph 46 said: 46 It can never be forgotten that the victims may be devastated by criminal acts. They have a special interest and good reason to expect 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 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. [ 122 ] Based the directions set out in the case law and given the inaccurate trial estimates given by counsel practically all of the delay

can be described as inherent delay. But that does not tell the entire story. b. Actions of the Accused [ 123 ] The Crown raised the issue of lack of notice and delivery of materials with regard to the Documents Application and the Askov Application brought by Mr. Jenkins. [ 124 ] In each of those Applications, the Affidavit evidence relied upon, as well as the transcripts and case law, could well have been provided to the Crown very soon after notice was provided.

However, in both situations materials were not provided to the Crown until very soon before the Applications were to be heard, leaving the Court little choice but to have those Applications adjourned to be heard on a trial day in order to allow the Crown adequate time to prepare and respond and for the Court to consider the matter. [ 125 ] With regard to the Askov Application, almost no notice was provided by Mr. Gilson on behalf of Rodney Kaiser.

Rodney Kaiser did not even file a Notice or appear on the first day scheduled for the hearing of the Askov Application, thus leaving the Court concerned that his interests may not be properly represented. In addition, it was only on the day the Askov Application was heard that Rodney Kaiser provided an Affidavit setting out the nature of his prejudice. [ 126 ] Counsel for both Accused are senior, knowledgeable lawyers well-versed in the appropriate guidelines covering Charter and other applications.

Their actions, or in some cases lack of action, are of concern because they forced the Court to set aside trial time to hear Applications that should have, and in this case could have, been raised much earlier in the process. [ 127 ] In paragraph 54 of Fagan , Esson J.A. said: 54 Finally, I will add that adjournments of trials resulting from last minute applications are all too frequent. To the extent they could have been avoided, they are a blot on the system, one which brings it into public disrepute. In some cases, of course, late applications are unavoidable.

Most often, with a modicum of foresight, they can be avoided. Counsel have, in my view, an obligation to do what they can to avoid causing unnecessary adjournments with their attendant cost in time and money, and creation of disrepute. [ 128 ] The Documents Application brought by Mr. Jenkins was, at the end of the day, poorly founded and rejected by the Court. However, it occupied only one and one half hours of the Court’s time to resolve, much less than the time lost due to other matters before the Court on the trial days. [ 129 ] The timing of the Askov Application was clumsily handled by Defence counsel.

However, the hearing of the Application occupied one half day. If the order sought is granted, then it did not add much to the trial time since the Crown’s case is complete. If it is rejected any further delay to complete the trial could be considered to be Actions of the Accused. [ 130 ] In the final analysis, aside from what I have already said, I cannot attribute much, if any, delay in this matter to Actions of the Accused or their counsel. c.

Actions of the Crown [ 131 ] When the first three days of trial proved insufficient, the Crown took extraordinary steps to ensure the continuation could be concluded in a timely fashion. The Crown was prepared to be available for almost all of the dates offered by the JCM; it agreed to moving the case to Prince George to provide for additional dates for completion and eventually call dated the matter to get the Court’s direction on how and when the trial would conclude. [ 132 ] Defence counsel were critical of the Crown’s decision regarding case priority during the first three days of trial in 2010.

I reject that criticism. The Crown is always in a very awkward position in our overburdened system in trying to balance the competing the interest of accused persons, complainants, witnesses, counsel and the community at large; while at the same time working with the knowledge that the Court has the ultimate authority in directing which cases should proceed in priority to others. [ 133 ] There can be no delay attributed to the actions of the Crown. d. Limitations on Institutional Resources (

i) Judicial Complement [ 134 ] 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 3 The Court has one of the broadest mandates of any provincial court in Canada. Notwithstanding the breadth of its mandate, the ratio of provincial court judges to population in B.C. is one of the lowest in Canada, and is lower than in 1998. The ranks of the British Columbia police forces and Crown counsel have increased since 2005 reflecting the reality that the population of B.C. is growing, as is both the number and seriousness of adult criminal prosecutions. . . . .

With the uncertainty and delay in the filling of judicial vacancies the Court focused a disproportionately high level of judicial resources on adult criminal matters. While this has not stopped the growth in the delay for adult criminal cases, over the last year there has been a dramatic increase in the delay and volume of uncompleted civil, family and child protection cases.

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. [ 135 ] 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 accused, 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; [ 136 ] 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. [ 137 ] This Directive will further constrict the time available for scheduling out of custody criminal trials such as this case. [ 138 ] 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 108 full-time judges and 37 part time judges for a full-time equivalent complement of 124.65; or a reduction of 10% since 2005. Given anticipated retirements, if no further appointments are forthcoming by government, the full- time equivalent complement of the Court will drop to 117.8 by May 31, 2012; or a reduction of 15% since 2005. [ 139 ] 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. (ii) Caseload

[ 140 ] 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. [ 141 ] On March 31, 2011, the Prince George Registry, which also includes Vanderhoof, Fort St. James, and Fraser Lake, 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. (iii) Geography [ 142 ] The Cariboo Northeast District of the Provincial Court spans approximately one third of the geography of British Columbia, or an area roughly the size of France. The 10.5 full-time equivalent judges in the District serve 19 communities. [ 143 ] Many of the small communities in the District are served on a once-per-week or less frequent basis depending on demand and driving distances.

Serving such a broad geographic area with numerous communities and diminishing judicial resources provides additional unique challenges compared to more urban areas when it comes to trial scheduling. [ 144 ] The challenges are further exacerbated in places like Fraser Lake and Vanderhoof, near where the events in question occurred, because the court lists on any given day are filled to beyond capacity even before considering the people who come into custody arising from arrests in the day or two before the Court sits. e.

Other Reasons for Delay [ 145 ] 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 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 will impact on the availability I have to continue and complete the trial of this matter. [ 146 ] The same scheduling issues that occurred in the past due to the fact that the Accused each have busy senior counsel will no doubt complicate any future trial scheduling in this matter. 4. Prejudice to the Accused a. Liberty [ 147 ] There was minimal interference with the liberty of either of the Accused. The bail terms were not onerous and they were able to move about with minimal restrictions. b.

Right to make full answer and defence [ 148 ] Neither counsel advanced any argument that their clients would be unable to make full answer and defence due to delay. c. Security of the person [ 149 ] 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 accused, 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. [ 150 ] I have carefully reviewed the evidence of the Accused concerning the prejudice they allege and I have considered that evidence in light of the case law. [ 151 ] I accept the evidence of the Accused regarding the prejudice they have suffered and I consider such prejudice to be similar in nature to that described in Kovacs-Tatar , McCullough, Adair, Newbold, Oliveira, Young, Vogt , and Cantrill . [ 152 ] The nature, type and duration of any prejudice has to be considered in light of an individual accused’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. [ 153 ] I am satisfied that both the Accused have suffered sufficient prejudice of the type, nature and duration to require judicial intervention. [ 154 ] Even if the specific prejudice was not present in the type, nature and duration that I have found, the inherent prejudice of a 27 month or longer delay to the conclusion of this matter is sufficient, when looked at in total, to require judicial intervention as described in Godin , Morin and Conway . [ 155 ] As such, it is necessary to grant the Accused a Judicial Stay of Proceedings on all counts of the Information.

EPILOGUE [ 156 ] I am fully cognizant that this result will have direct beneficial effects for the Accused and potentially detrimental effects for Mr. Lackey and Ms. Lackey and the greater community of Fort Fraser. All citizens should be entitled to have a case like this decided on its merits, in a timely fashion, and at or near the community where the events occurred. Unfortunately that did not occur in this case. [ 157 ] In McComber at paragraph 44 I said:

44 . . .

I also conclude that the term "public interest" includes the public's interest to be served by a court system that is given sufficient judicial and support resources to allow cases to be concluded within the timeframe directed by the Supreme Court of Canada, and thereby ensure an accused citizen's Charter rights are not infringed by the Government's fiscal decisions which result in the Court being unable to fulfil its mandate to all citizens, be they accused, victims, witnesses, police officers or the broader community. . . . [ 158 ] In the same vein the Court in Askov at paragraph 47 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. [ 159 ] The Court constantly strives to serve the public interest in the administration of justice in the face of dwindling resources and a burgeoning case load. Only government can re-establish the necessary and appropriate level of judicial and support resources.

Without those resources the Court could be overwhelmed with Askov applications which will impact the Charter rights of individuals, inhibit the Court’s ability to serve the public’s interest in a timely fashion and undermine community support for the criminal justice system. __________________________________ M. J. Brecknell Associate Chief Judge Provincial Court of British Columbia