R. v. Cao et al. Date:, 2011 BCPC 247

Citation: R. v. Cao et al. Date: 20110830 2011 BCPC 0247 File No: 32321-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LI BO CAO JING PU CHEN SHUANG JUN HAN WEI GUANG WANG RULING RE

SECTION 11(

b) APPLICATION OF THE HONOURABLE JUDGE WOOD Crown Counsel: J. Blackman Defence Counsel: H. Doehring Place of Hearing: Duncan, B.C. Date of Judgment: August 30, 2011 [ 1 ] THE COURT: The four accused in this case are charged with a total of 10 counts, all of which occurred on the 29th of September, 2009, and relate to the unlawful shooting of two Roosevelt elk.

The charges include possessing dead wildlife in the form of the carcasses of the Roosevelt elk; hunting Roosevelt elk; and, in the case of two of the accused, possessing firearms in circumstances that are contrary to s. 9(1) of the Firearm Act , namely having loaded firearms in an automobile. [ 2 ] The charges were laid on the 1st of December, 2009, and there were a series of interim appearances, the first being on the 12th of January, 2010, and thereafter some interim appearances up until the 30th of March, 2010, at which time both counsel were ready to go to

trial and a trial date was set. On the 30th, or very close to the 30th of March, the trial date was set for February, that is the 30th of March, 2010, the trial date was set to commence February the 21st, 2011, almost 11 months after counsel were ready to go to trial and the trial date was itself set. [ 3 ] I am told by both counsel that these are not complicated charges. The Crown expects to call six or seven witnesses. Mr. Doehring , on behalf of all accused, takes the position that these are simple matters and therefore should go to trial more quickly.

There is, however, the complicating feature, and that is that one or more, perhaps all four of the accused will require the assistance of a Cantonese interpreter, and therefore the time scheduled for the trial was increased by some factor. Whether it was doubled, or not, is impossible to say, but certainly it was increased significantly to four days rather than the two days, which the Crown feels would be more than adequate for the Crown evidence to be heard in its entirety. [ 4 ] The length of trial, of course, had some bearing on how long it took for the trial date actually to be set down.

In other words, the availability of four continuous days in the rota is something that is more difficult to find than the availability of two days. In this case, in any event, the trial dates set for February 21st through 24th inclusive could not go ahead because early on, indeed in the fall of 2010, it became apparent that there would be no judge available on those days. Accordingly, on September the 14th, 2010, counsel appeared, that is Mr.

Doehring appeared, with notice to be there on that date, for the purpose of vacating the trial dates of February 21 through 24, and arranging for new trial dates to be set for the reason given. [ 5 ] It appears that Mr.

Blackman's office was also aware of the need to adjourn the trial, and I have not heard that either counsel objected to the fact that the trial had to be adjourned, or were taken by surprise when that was done on the 14th of September. [ 6 ] In any event, the new dates set for trial were October 4th through 7th inclusive of 2011, some seven and a half months later. [ 7 ] So in assessing the application which is brought now by counsel for the four accused under s. 11(

b) of the Charter , I have to look at this period of institutional delay, which is from March the 30th, 2010, to October the 4th, 2011, some 18 and a half months, as the relevant period to be considered. [ 8 ] Mr. Blackman for the Crown concedes that the total delay, which is over 22 months, is what could be referred to as exceptional delay, and therefore requires the inquiry that we have been embarked upon this morning and continuing this afternoon. [ 9 ] I note that 18 and a half months of institutional delay is roughly double the guideline suggested in Morin for acceptable institutional delay.

There are no other reasons given for the delay, and it is clear that I have to decide whether, in the circumstances of this case, that is a reasonable delay that could be expected, and therefore the trial should proceed, notwithstanding this delay. [ 10 ] The interests of the accused that are invoked by s. 11(

b) include: the liberty interests, which result from either an incarcerated accused, or alternatively bail conditions which impede the liberty of the subject in some way; the security of the person which has more to do with the emotional or psychological impact, together with the potential for the consequences of a conviction to cause the accused to be concerned and worry for prolonged periods of time; and finally, the ability of the accused to make full answer and defence, which has more to do with the withering of recollections and the contamination of the evidence that sometimes occurs, indeed often occurs when trials are unreasonably delayed. [ 11 ] There are, of course, societal interests as well that need to be taken into account, and it is clear from the law, as set out in the Supreme Court of Canada in the case of Morin , as well as the more recent decision of Godin , that the society's interests in ensuring that serious charges are prosecuted is a consideration that must be taken into account when balancing all of the interests that are at stake when trials are subjected to exceptional delay. [ 12 ] One of the factors to be considered in looking at the question of delay in a case such as this is whether or not the accused are prejudiced or have suffered prejudice as a result of the delay.

In the more recent decision of Godin , which is a 2009 judgment of the Supreme Court of Canada, it is clear that the length of delay or a lengthy delay may itself give rise to an inference of prejudice, even in the absence of any evidence. [ 13 ] There is no evidence of prejudice in this case; that is, no affidavit has been proffered on behalf of any of the accused, and I have not heard any viva voce evidence from anyone suggesting that there has been a specific type of prejudice. [ 14 ] Mr.

Blackman for the Crown argues, with I think some merit, that because the accused were summonsed, there certainly has not been any liberty infringement, in terms of the time awaiting trial.

He points out that there is, of course, a potential consequence if there is a conviction, but he also suggests that the right to make full answer and defence is minimally impacted, because it is his understanding that the accused are not likely to be giving evidence; at least that has been his advice to this point in time. [ 15 ] I do not think I can take the latter submission into account, because it seems to me that whether or not the accused give evidence is a decision to be made at the close of the Crown's case and who knows what may transpire between now and that time.

Furthermore, the right to make full answer and defence is not simply a question of whether the accused have evidence to call or can give evidence themselves, but, as I have already indicated, have something to do with the way in which evidence tends to wither away and lose some of its detail, which can be important detail as time and a half passes awaiting trial. [ 16 ] So there are elements of prejudice to consider in this case. [ 17 ] I must also keep in mind the public interest in having serious charges such as this tried. And I accept Mr.

Blackman's submission that these are serious charges, there is no question about that. The preservation of our wildlife in circumstances where, although not endangered, specific herds, in this case herds of Roosevelt elk, are seen to be diminishing over time, is a matter that is of the utmost concern, not just to hunters but to everyone who understands the importance of a balance in the ecology and the need to preserve the wildlife resources that we have. [ 18 ] But when looking at that issue and the interest that society has in ensuring that serious charges are ultimately determined through

a trial, one has to also keep in mind that society has an interest in seeing all charges determined, prosecuted, and brought to finality in a timely way. That is one of the more readily recognized purposes of the provision in s. 11(

b) of the Charter , which does not exist purely for the interests of the accused. [ 19 ] As Mr.

Blackman concedes, there comes a point in time where the seriousness of the charge and the society's interest in seeing such charges prosecuted comes into conflict with the interests of society in having those charges speedily determined, and that of course happens when, in a case such a this, there is what appears to be an exceptional institutional delay. [ 20 ] Finally, I have to keep in mind that while there can be reasons for it which vary from area to area within the country, within the province indeed, and while there is a relationship between the availability of resources and the limitations that are placed on government funding, which need to be recognized and taken into account, that the lack of sufficient resources cannot be excused where to do so would render the protection to the accused in s. 11(

b) meaningless. [ 21 ] So trying to balance all of these factors and the considerations that I have mentioned, I have to look at the delay in this case and make a decision as to whether or not the delay is unreasonable.

It is a simple, straightforward case, but it has the complicating feature that I have mentioned, that there will have to be interpreters used. [ 22 ] In those circumstances, and given the fact that I understand there will be at least one voir dire which will have the complicating circumstance to which I have just referred as an overlay, I am satisfied that the guideline amounts of time which are set out in Morin for institutional delay, namely eight to 10 months, need to be extended to some degree in this case because of those factors that I have just referred to. [ 23 ] That said, the 18 and a half months of institutional delay in this case is virtually double that which was suggested in Morin , and even if one makes allowances for the fact that there are some circumstances in this case that suggest a longer period of institutional delay would be appropriate, in each case, that is in both periods of institutional delay, I am not satisfied that the full length of the delay in this case can be excused. [ 24 ] Further, I find that there is some prejudice to the accused which can be inferred from the length of the delay, specifically with respect to the security of the person, that is the concerns that are obviously present in the minds of all four accused for a long period of time with respect to the eventual outcome of this and the potential exposure which they have to significant penalties.

Mr.

Blackman has pointed out the nature of some of those penalties; they are not just financial, but they relate as well to the confiscation of property and the limitation of certain privileges that exist with respect to hunting, and that there has been -- obviously there will have been some prejudice to the accused with respect to the ability of the witnesses to recount necessarily accurately everything that transpired during the course of the investigation on September the 29th, 2009, most particularly with respect to what was said or not said in the course of that investigation by any of the accused. [ 25 ] Taking all of these factors into consideration, it would be my view that an institutional delay in the range of 12 to 14 months would be reasonable, taking into account the circumstances that I have referred to that are somewhat unusual in this case.

This delay exceeds that by four and a half months, and that additional delay is due entirely to lack of resources and the inability of the institution to provide a judge on the day in question. [ 26 ] In my view, that is a significant enough additional delay to warrant the application which has been brought, and in my view the accused have met the burden of proof which is upon them, and there will be a stay of these charges under s. 11(

b) of the Charter . (RULING CONCLUDED)