R. v. Adams Date:, 2015 BCPC 83

Citation: R. v. Adams Date: 20150402 2015 BCPC 0083 File No: 36297-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD BRUCE ADAMS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: J. Patsch Counsel for the Defendant: D. Marshall Place of Hearing: Duncan , B.C. Date of Hearing: March 26, 2015 Date of Judgment: April 2, 2015 The Application

[1] Mr. Adams is charged with common assault. The incident occurred on September 28, 2013. The information was sworn onDecember 20, 2013. Mr. Adams entered a plea of not guilty on January 14, 2014. The trial was originally scheduled for October 6,2014, but was adjourned on the application of the Crown, and is now scheduled for April 10, 2015. I am assigned to be the trial judge. [2] Mr. Adams applies for a judicial stay of the prosecution on the ground that he has been denied his right to be tried within areasonable time: Canadian Charter of Rights & Freedoms,

section 11(b). Chronology [3] Ms. DuPont and her daughter, Ms. Mattin-Kuiack, live next door to the complainant, Mr. Dougan. Mr. Adams is a friend ofMs. DuPont. An incident occurred on September 28, 2013, in the course of which it is alleged that Mr. Adams assaulted Mr. Dougan. Ms. Mattin-Kuiack was present during the incident. The Crown concedes that her evidence may be material to the allegation. [4] The RCMP arrested Mr.

Adams on September 28, 2013 and released him on a promise to appear, returnable on November 26,2013, and an undertaking to a peace officer, which included a condition that he not approach within 500 metres of Mr. Dougan’s home. The latter condition was inconvenient for Mr. Adams because it prevented him from attending at the home of Ms. DuPont, with whomhe was then intimate. He deposes that this caused some discord in their relationship. [5] When he was released on September 28, 2013, Mr. Adams left his contact information with the arresting officer. [6] Mr.

Adams attended court in Duncan, as he had promised to do, on November 26, 2013. His name was not on the court list. Mr. Adams is a retired sheriff, and was aware of a risk that a warrant might be issued for him later that day if he simply left thecourthouse. The prospect of being arrested and held on a warrant was of particular concern to him because he had served as a sheriff inDuncan for many years before he retired, and might encounter in cells some individuals harbouring ill feelings toward him. For thosereasons, he made enquiries of Crown counsel and the RCMP.

After some time, he was informed that no proceedings would be taken thatday, that he was free to leave and that his undertaking to a peace officer had expired. [7] On December 20, 2013, an information was sworn, charging Mr. Adams with assault. [8] On December 23, 2103, Mr. Adams was working in Courtenay, about 90 minutes’ drive north of Duncan. He received there atelephone call from the RCMP, during which he was informed that a warrant had been issued for his arrest. For the reasons given above,that caused him serious concern.

He informed the officer on the telephone that he would drive immediately to the Duncan RCMPdetachment to turn himself in, but was given no assurance that the RCMP would hold the warrant to allow him time to do that. Hesuffered some anxiety as a result of the fear that he might be stopped and arrested en route. Fortunately, he reached Duncan withoutincident, reported to the RCMP detachment there, and was released on a recognizance. The recognizance forbade him to attend at Mr.Dougan’s home, but did not restrain him from attending at Ms. DuPont’s home. [9] Mr.

Adams retained counsel, who appeared with him at his first court appearance on January 14, 2014, at which time Mr.Adams entered a plea of not guilty. Counsel subsequently arranged a trial date of October 6, 2014. [10] On October 3, 2014, the Crown applied to adjourn the trial date because one Crown witness was working in northern Albertaand would not be available on October 6. Crown counsel did not suggest that it would be appropriate to proceed with the witnesses whowere available, and then to adjourn to await the convenience of the missing witness.

Defence counsel expressed himself to be opposed tosuch a mode of proceeding. Crown counsel pointed out that there was also a preliminary hearing on the court list for October 6, that thepreliminary hearing was (in the view of the Crown) entitled to priority over Mr. Adams’ case, and that there might not be time to proceedwith Mr. Adams’ case on that day if the adjournment were refused. In response to that observation, counsel for Mr.

Adams said: I did speak to counsel who has conduct of the preliminary hearing, and they confirmed with me that it’s going ahead and my friend’sapplication is now in part because there is a lack of court time. So, obviously, Mr. Adams has to accept the inevitable there, but he cando so without waiving any of his rights, of course, to having a trial within a reasonable time. In the result, the learned judge presiding adjourned Mr. Adams’ trial. The Judicial Case Manager scheduled the trial for April 10, 2015. [11] In February, 2015, Ms. Mattin-Kuiack informed Mr.

Adams that she, her husband and her children would be moving toBeaumont, Alberta on April 1, 2015, and that she would not be available to attend the trial on April 10, 2015. Beaumont is about 40 kmfrom the Edmonton courthouse. [12] This application came on for hearing on March 26, 2015. During the hearing, I enquired whether the Crown would be willingto pay Ms. Mattin-Kuiack’s travel expenses to attend the trial in Duncan. [13] On March 31, 2015, Crown counsel offered to pay the cost of a video link with the Edmonton courthouse and Ms. Mattin-Kuiack’s travel expenses to Edmonton, so as to allow Ms.

Mattin-Kuiack to give evidence by video pursuant to sections 714.1 and 714.2of the Criminal Code.

Framework of the Legal Analysis [14] In R vs Fagan (BC CA), [1998] BCJ No. 2886, Esson, JA remarked at paragraph 11 that the “… decision inMorin effectively overruled much of what had been decided in earlier cases and reduced the decision in Askov to a matter of largelyhistorical interest.” Accordingly, the starting-point for the juridical analysis is R vs Morin (SCC), [1992] 1 SCR 771. [15] In Morin, Sopinka, J set out the four factors to be considered in determining whether the delay in bringing the case to trial isunreasonable. a.

The first factor is the length of the delay, measured from the date on which the information was sworn or indictment preferred

to the end of the trial. Sopinka, J said that delay before the date of the information or indictment “… may in certain circumstances havean influence on the overall determination as to whether post-charge delay is unreasonable but of itself is not counted in determining thelength of the delay.” b. Waiver, if any, by the accused of his rights under

section 11(b). c. The reasons for the delay. These may include “inherent time requirements”; i.e. the time reasonably necessary to bring the caseto trial, having regard to the nature of the case and of the court process, actions of the Crown, actions of the accused and limits oninstitutional resources. With respect to the latter, Sopinka, J said that a guideline of 8 – 10 months would be appropriate, provided that itought not to be rigidly applied. d. Prejudice to the accused resulting from the delay.

Consideration of the Factors in This Case [16] In this case, the period elapsed from the swearing of the information to the first day of trial is approximately 15 ½ months. Inconsidering whether that is too long, I think it appropriate to have some regard to the period between September 28 and November 26,2103. During that time, Mr. Adams believed that he had been charged with assault and would be expected to appear in court onNovember 26, 2013. That belief was induced by the RCMP. During that time, he was exposed to the emotional strain described byCory, J in R vs Askov (SCC), [1990] 2 SCR 1199 @ paragraph 43.

I think that a delay of 15 ½ months, standing alone,would justify a consideration of the remaining three factors. If there were any doubt on that score, it would be settled by a considerationof pre-charge delay in this case. [17] It is not suggested that Mr. Adams waived his rights under

section 11(

b) of the Charter. [18] There is nothing in the nature of this case to provide a legitimate reason for delay. It is the simplest of criminal trials, and couldeasily be prepared for trial in a few weeks (including a reasonable time for Crown disclosure and consideration of that disclosure by thedefence). [19] There is no suggestion in this case that any part of the delay is attributable to the accused.

The delay arises from the absence ofa Crown witness on the first trial date and the prospect that court time might not have been available on that date. [20] In considering limits on institutional resources, I think that I am entitled to rely on statistics published on the official website ofthis court: Canada Evidence Act, sections 24, 25. Those statistics show that the average elapsed time (Province-wide) from date ofarraignment to the first available trial date for half-day criminal trials is less than 6 months, and that the average for the court locationwith the longest wait-time is 8 months.

It follows that institutional constraints are not a factor in Mr. Adams’ case. [21] At paragraphs 56 – 59 of Morin, Sopinka, J discussed whether, and in what circumstances, an inference of prejudice to theaccused could be drawn from the delay itself, without the need for specific evidence of prejudice. I need not consider that issue in thiscase because Mr. Adams has put forward evidence of specific prejudice. [22] Mr. Adams’ bail conditions forbade him to possess a firearm.

That was an obstacle to his work as a hunting guide untilOctober, 2014, when the Crown consented to a variation of the bail document to delete that condition. [23] Mr. Adams is required to travel to the United States for his work. He says that he has suffered some anxiety and embarrassmentbecause he is obliged to disclose the existence of the pending charge to the American border authorities each time he crosses the border. However, there is no evidence that his travel has been impeded. [24] Mr. Adams suffers from the sequelae of a concussion, which has caused memory loss and difficulties in concentration.

Giventhat all memories tend to fade, it is a reasonable inference that Mr. Adams will suffer more prejudice from the delay than would anaccused without a similar handicap. [25] Ms. Mattin-Kuiack will not attend the trial voluntarily. I could order that she attend at the Edmonton courthouse to giveevidence by video. Mr. Marshall submits that I should not do so because she has young children to care for and no one to assist her withthat because her husband will be working in a remote location.

The short answer is that it is the duty of every citizen to attend court andto give evidence when required: Northland Properties Ltd vs Equitable Trust Co (1992) (BC SC), 10 CPC (3d) 245;D.W. Matheson & Sons Contracting Ltd vs Canada (Attorney-General) [2000] NSJ No. 44; 2000 NSCA 96; 32 CLR (3d) 22; R vsMontgomery [2014] BCJ No. 1036; 2014 BCSC 34. While efforts should always be made to reduce the inconvenience to witnesses asmuch as possible, inconvenience is not a reason to excuse a witness from performing this important civic duty.

I observe that child careis available in all communities, and that the cost of child care is an appropriate element of conduct money in circumstances such as thoseof Ms. Mattin-Kuiack. [26] The Criminal Code contains no provision requiring a party who issues a subpoena to pay conduct money. This seems a curiousomission. However, it is now well-settled that a party who issues a subpoena is required to pay the reasonable expenses of the witnessfor travel, meals and lodging: R vs Montgomery 2014 BCJ No. 1036; 2014 BCSC 934.

The cost of one day’s child care and for round-trip travel of 40 kilometres will be less than $300. Even if the Crown had not agreed to bear those costs, I would not have regarded themas a serious prejudice to Mr. Adams, who is employed part-time as a sales manager by a local cheese company, and also earns income asa guide during hunting season. He receives a sheriff’s pension. His annual income from all sources is about $56,000.

As a result, a$300 expenditure would not be a serious matter for him. [27] I think that the authorities require me to consider all four factors together, and to decide whether, taking all of them intoaccount, the delay in this case has been unreasonable. I don’t think so. I have expressed the view that inconvenience to witnesses shouldbe minimized wherever possible. The adjournment in October, 2014 was sought by the Crown for that purpose. If I were to hold thatthe delay consequent upon that adjournment is unreasonable, and that Mr. Adams is entitled to a judicial stay as a result, I would be

bound to refuse similar adjournment applications in the future. That would have unfortunate consequences for witnesses (who would be compelled to attend, regardless of their individual convenience) and for the administration of justice generally. I do not think that six months of incremental delay is an unreasonable burden to impose on Mr. Adams in order to accommodate the Crown witness who did not wish to attend on the trial date in October. [ 28 ] If it had been impossible to procure the attendance of Ms. Mattin-Kuiack on April 10, or if it would have imposed an unreasonable financial burden on Mr.

Adams to do so, I would have seen the matter differently. However, neither of those circumstances pertain, and I do not think that the other particulars of prejudice which Mr. Adams has suffered justify a judicial stay of this prosecution. [ 29 ] For that reason, the application is dismissed. April 2, 2015 __________________________________ T. Gouge, PCJ