R. v. Brighton Date:, 2010 BCPC 379

Citation: R. v. Brighton Date: 20101123 2010 BCPC 0379 File No: 36476-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RANDY SCOTT BRIGHTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DOHERTY Counsel for the Crown: B. Goddard Counsel for the Defendant: M. Sanders Place of Hearing: Campbell River , B.C. Date of Judgment: November 23, 2010 [ 1 ] THE COURT: Randy Scott Brighton is before the court on Information 36476-1.

He is charged, count 1: on or about the 23rd of May 2009, at or near Campbell River, in the province of British Columbia, while his 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 Section 253(1) (

a) of the Criminal Code . And Count 2, on the same date and at the same place: . . . having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to Section 253(1) (

b) of the Criminal Code . [ 2 ] Mr. Brighton brings an application for a stay of both counts, on the grounds that his s. 11(

b) Charter rights to a trial within a reasonable time have been violated. [ 3 ] On the face of it, a delay of 12 or 14 months, depending on the time calculation, to conduct an impaired/over .08 trial in this jurisdiction is unreasonable. Crown concedes that this is so and that an inquiry is justified.

[ 4 ] There is no s. 11(

b) waiver in this case. Mr. Sanders sets out the chronology at paragraph two, page two of the notice of application: May 23rd, 2009: Date of alleged offence. Applicant arrested and released on a promise to appear returnable July 27th, 2009. July 27, 2009: First scheduled appearance, matter was not on the court list. September 16, 2009: The information was sworn, a summons issued by mail returnable October 26, 2009. October 26, 2009: First appearance, initial particulars provided, matter is adjourned to November 23rd, 2009. November 23rd, 2009: Second appearance.

Trial arranged for November 23rd, 2010, for one day. December 7, 2009: Arraignment hearing, trial date confirmed. October 4th, 2010: Appearance for trial confirmation hearing, disclosure remained outstanding. Trial confirmation hearing adjourned to October 18. October 18, 2010: Trial confirmation hearing, trial date confirmed. November 23rd, 2010: Today, the trial was scheduled to commence. [ 5 ] There is no explanation before the Court as to why the Information was not laid prior to the accused's first appearance before the court.

New process did commence, and the Information was sworn nearly four months after the offence date and issued by mail. [ 6 ] In R. v. Ramezankhan , [2002] B.C.J. No. 2330 , at paragraph five, my sister Gedye PCJ says: There is nothing inherently wrong with using ordinary mail as a form of process, but the time required will count in the overall determination of whether there has been a delay of the proceedings. [ 7 ] In the case at Bar, there is no explanation before the court as to why the accused could not be brought to trial much earlier than the 12 to 14 months that it has taken. Mr.

Sanders says that he had earlier dates available. There is no evidence that earlier dates were made available to the accused, or if they were that the Crown could accommodate them. [ 8 ] I have, in the past, suggested that some record of counsel's interactions with the Judicial Case Manager [JCM] be recorded even if it simply be noted on the trial notice or trial slip, that earlier dates were offered. In fact, I have seen some of the slips notated in that fashion, although the slip that I have before me today has nothing on it to indicate that earlier dates were available.

I take it they were not. [ 9 ] It is not difficult to ascertain what the problem was here, and why an earlier date could not be found. [ 10 ] From my time at least, starting in 1991 and earlier, Campbell River had been a two-judge courthouse. In 2003, one of the resident judges, namely me, was assigned to Courtenay. I was not immediately replaced. Some years later a judge from the interior was transferred here, but he sat only a short time and retired in 2009.

He has not been replaced. [ 11 ] There can be no doubt that when the JCM was fixing a date for the case at Bar, he was aware that Judge Jack was leaving and no immediate replacement was on the horizon. I expect that that is why the JCM was unable to offer an earlier date than the one today because he was, once again, fixing dates for a single judge courthouse. In fact, he was correct; Judge Jack has not been replaced. [ 12 ] This is a limit on institutional resources issue as contemplated in R. v.

Morin , 1992 CanLII 89 (SCC) , 71 C.C.C. (3d) 1, (SCC) , Sopinka J for the majority. [ 13 ] The Court notes that the accused has the right to be tried within a reasonable time. Prima facie in the case at Bar: 1. This case has not been tried within a reasonable time. 2. There is no waiver. 3. Reasons for the delay: (

a) inherent time limits are not an issue, (

b) the accused took no actions that caused the delay, (

c) actions of the Crown; I have already commented on the way that the case initially developed, (

d) limits on institutional resources; It is not my place to comment as to whether or not government should appoint more judges. That is a decision that the Lieutenant Governor in Council must make. I would only note that recently the government has recognized the problem and added judicial resources making several appointments, including one to the North Island, but not Campbell River. 4. Prejudice to the accused. [ 14 ] Mr.

Goddard, appearing for the Crown, is rather dismissive of ‘prejudice to the accused,’ and says, in effect, "Well, the accused had only a couple of additional months that this case was hanging over him waiting for his trial, so that can't be too prejudicial. At least it is insufficient for the Court to take it into consideration."

[ 15 ] Anyone who faces a criminal count that contains mandatory penalties, including mandatory loss of a driver's licence and possibly the loss of freedom, would be anxious to have their case resolved one way or the other and not have those potential consequences hanging over them any longer than necessary. [ 16 ] The accused has filed an affidavit outlining prejudice the delay has caused him. I accept it as sufficient. [ 17 ] In any event, in my respectful view, a reasonable time to have the case at Bar tried in this jurisdiction was 10 months. [ 18 ] Mr.

Sanders raises an interesting argument about the change in approach to impaired driving matters, wherein the province has elected to deal with these cases administratively rather than through the courts. He argues societal interest in prosecuting these cases is not as great as it once was. Mr. Goddard says the Crown is still prosecuting these cases, in particular where there have been accidents or criminal backgrounds in relation to potential accused. He says it is just a ‘policy’ decision that they are being done administratively now. [ 19 ] Given that response, Mr. Sanders may well be right.

There certainly seems to have been a significant policy change and might well be of more significance in a difference case. [ 20 ] I do not have to go further in my analysis of what should happen next. Indeed, counsel has not suggested I do. [ 21 ] The traditional remedy for a successful delay argument is a stay of proceedings, and I stay both counts. [ 22 ] Thank you, gentlemen. (REASONS CONCLUDED)