R. v. Sumner Date:, 2011 BCPC 41

Citation: R. v. Sumner Date: 20110209 2011 BCPC 0041 File No: 35765-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEANINE ELIZABETH SUMNER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DOHERTY Counsel for the Crown: J. Boccabella Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Date of Judgment: February 9, 2011 [ 1 ] THE COURT: The accused, Jeanine Elizabeth Sumner, is before the court on Information 35765.

Count 1; on or about the 23rd of January, 2009, at or near Campbell River, in the Province of British Columbia, while her ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle, contrary to s. 253(1) (

a) of the Criminal Code . [ 2 ] Count 2; on the same date and at the same place, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to s. 253(1) (b)of the Criminal Code . [ 3 ] This matter is before me this date for trial. Mr. Marion on behalf of the accused brings on an application alleging an 11(

b) Charter breach, in that the accused was denied her right to be tried within a reasonable time. [ 4 ] On the face of it, that would appear to be so. Depending on the calculations I adopt, delay is 19 months, 22 months one week, or 20 months, 15 days. Given that, an inquiry is obviously necessary. [ 5 ] I set out the chronology:

January 23rd, 2009, the alleged offence. April 2, 2009, information sworn. April 6, 2009, first appearance adjourned to consider constitutional challenge to new breathalyzer legislation. April 27, 2009, adjourned for further consideration and constitutional challenge to breathalyzer legislation. May 25th, 2009, not guilty plea entered, two days estimated, trial date March 23rd and March 24, 2010, fixed, 10 months from fix date. February 8th, 2010, defence application for R. v. Phagura disclosure, adjourned to February 22, 2010.

February 22, 2010, trial confirmation hearing, defence application for disclosure, adjourned to March 15, 2010. March 15, 2010, trial date confirmed and noted that only one day necessary. March 23rd, 2010, a trial date, no time, case adjourned to March 24th, 2010. March 24, 2010, no time, adjourned to trial coordinator to fix a new trial date. March 29, 2010, fix date at trial coordinator's office for one day trial. April 12, 2010, fix date, trial coordinator's office for five hours; June 16, 2010, fixed for new trial date. June 16, 2010, new trial date, no time, adjourned to trial coordinator's office.

June 21st, 2010, fix date for new trial date; new trial date of February 9th, 2011, fixed, seven and a half months from fix date. [ 6 ] The accused has filed an affidavit citing the prejudice delay has caused her. She says that being charged, and because of the administrative driving prohibition, she lost her job. Obviously she has been under stress and worried about the outcome of these procedures for almost two years. She moved to Victoria and works for Marine Harvest, another seafood company that requires a driving license for work.

She is obviously stressed that should she again lose her license, she may lose another job. [ 7 ] In addition, this delay has cost her financially. Mr. Marion had to prepare and re-prepare for trial. Her legal fees have increased at least by $1,500. She talks about having to come out of camp to attend trial on March 23rd, and how that also cost her financially. It is clear that she has suffered prejudice because of the delay. [ 8 ] There was no waiver obviously, and no inherent time requirements for this one witness impaired over .08 case. The accused made no contribution to the delay.

Crown made no contribution to the delay, save and except perhaps on one of these occasions when it decided to proceed on other cases instead of the case at hand. [ 9 ] The one exception of course, is the date that this matter was set before Judge Saunderson. Mr. Goddard protested vigorously on behalf of the Crown, when Judge Saunderson advised him that the case could not go ahead because there was a lack of time. As I understand it, the Court was involved in a three day fisheries case. [ 10 ] This, once again, is a limitation on institutional resource issue.

There are now probably a dozen decisions from various judges on the North Island, all of whom have come to the same conclusion. Campbell River once had adequate judicial resources. It was a two- judge courthouse. There is only a single resident judge here now, the other judge having retired and not replaced. [ 11 ] There is a long line of cases throughout the province in which my brothers and sisters on this bench vent their frustration at having to stay cases because of the lack of judicial resources, resulting in successful 11(

b) Charter arguments. [ 12 ] The North Island increasingly is adding cases to those that have already been decided. I myself have several, including R. v. McCabe, 36261 Courtenay Registry, December 2, 2010, and most recently R. v. Vale, 36450 Campbell River Registry, January 6, 2011. Other North Island judges who encounter 11(

b) Charter arguments in this jurisdiction have imposed stays of proceedings, and the general conclusion is that the problem is systemic. It results from a lack of judicial resources. The problem is easily rectifiable, in Campbell River at least, by the government appointing another Provincial Court judge. That decision is not the judiciary's to make, and judges must be careful when pointing out the problem the lack of judicial resources causes, that we do not stray into the political arena.

In the end, it is the representatives of the people who must decide, and that is as it should be. [ 13 ] However, in not making adequate judicial resources available, there are consequences to government inaction. [ 14 ] In the case at bar, as in the other cases that have been presented in the case book, the consequence is a halt to the proceedings by way of a judicial stay. A stay will be entered on both counts of Information 35765. [ 15 ] Ms. Sumner is free to go. I thank both gentlemen for their submissions. (PROCEEDINGS CONCLUDED)