R. v. LePage Date:, 2011 BCPC 476

Citation: R. v. LePage Date: 20111031 2011 BCPC 0476 File No: 36505-2-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEFFREY ROD LEPAGE RULING ON DELAY APPLICATION OF THE HONOURABLE JUDGE SAUNDERSON Counsel for the Crown: J. Boccabella Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Date of Judgment: October 31, 2011 [ 1 ] THE COURT: The defendant seeks a stay of proceedings of all charges under s. 24(1) of the Charter , asserting that his s. 11(

b) Charter right to be tried within a reasonable time has been denied.

[ 2 ] He is accused of committing four offences on July 19th, 2009: dangerous driving, impaired driving, driving with a blood alcohol content over 08, and driving while prohibited under the Motor Vehicle Act . [ 3 ] The Information was sworn September 30, 2009.

The trial started (the defendant having failed to appear on the first trial date) on June 8, 2011, and it was put over for continuation on August 4, 2011, but lacking court time on that date, was adjourned for continuation to October 14th, 2011, when the application for a stay of proceedings was made. [ 4 ] The overall delay from the date of the Information was 24 and a half months. That is more than enough to prompt an inquiry by the court into whether and, if so, the extent to which, institutional delay played a part. [ 5 ] The 1992 Supreme Court of Canada decision in R. v.

Moran established a guideline of 8 to 10 months of institutional delay for a trial within a reasonable time in provincial courts. [ 6 ] On the facts of that particular case, a delay of 12 months was involved, but in the absence there of proved or inferred prejudice to the accused, the 12-month delay was found not to have been unreasonable. [ 7 ] The case at bar does involve proven prejudice to the defendant consisting of extra counsel fees for additional preparation for trial caused by the continuation set for October 14th this year, and some $770 to $880 in wages lost by the defendant for his seven or eight attendances in court. [ 8 ] None of that includes the estimated $2,000 in legal fees to prepare and argue the delay application. [ 9 ] I shall now review the various time periods and make findings that will lay them either at the feet of the defendant or of the Crown or of neither. [ 10 ] September 30 to November 30, 2009.

Two months involving four court appearances. During that time, defence counsel sought instructions, Crown Counsel interviewed the principal witness, and possible consent resolutions were discussed by both sides. All of this I consider to be normal intake requirements and not the responsibility of either party. [ 11 ] On November 30, 2009, pleas of not guilty were entered and a trial date of July 2, 2010, was fixed by the judicial case manager. Defence counsel had 48 earlier dates which were given to the judicial case manager, but I infer none of which could be accommodated.

That delay of 7 months was institutional, otherwise called systemic, and must be attributed to the Crown. [ 12 ] The trial date was confirmed by Crown and defence counsel on June 7, 2010, and Crown Counsel noted that the entire day was set aside for this case. [ 13 ] On the July 2nd trial date, the defendant failed to appear because he marked the wrong date in his calendar, he later said. A warrant was issued for his arrest, and he appeared on July 12, when the matter was put over to the next date when the judicial case manager would be available to reschedule the trial. That was July 19th.

That delay of 17 days was caused by the defendant. [ 14 ] On July 19, 2010, a new trial date of June 8, 2011, was fixed, Crown Counsel having asked for an early date. This delay was 10 months and 20 days. That, clearly, must be laid at the feet of the defendant. [ 15 ] On June 8, 2011, the trial was started, but other matters on the court list prevented it from being concluded. It was referred to the judicial case manager on her next available date, July 13th, to

schedule a continuation date. [ 16 ] August 4, 2011, was fixed, but on that date the court was so heavily booked that the continuation of this case did not begin. [ 17 ] On August 8th, the judicial case manager set October 14, 2011, for the continuation. The delay from June 8 to October 14 was also institutional. That delay was 4 months and 6 days and must be laid at the feet of the Crown. [ 18 ] The total delay that is attributable to the Crown in this matter is 11 months and 6 days.

That is without taking into consideration allocating the delay between the Crown and the defence from the first missed trial date at which the defendant did not appear until the next date. [ 19 ] It may well be -- in fact, it probably was -- the case that on June 8 and August 4, 2011, the presiding judge gave other cases set for hearing the same day priority over this case. It is also likely that last minute bail hearings and sentencing proceedings involving people in custody took trial time allocated to this and other matters. [ 20 ] That is a fact of life in this court in Campbell River.

Rare is the day when all cases set for a particular date are completed. This court is over-booked. We cannot handle trials in a timely manner, be they criminal, family, or civil. Campbell River's provincial court has traditionally had two full-time judges, but that has not been the case for the past two years, as no one has been appointed to replace my colleague who retired two years ago. [ 21 ] In the circumstances of this case, I find that the delay has been unreasonable, and there will, therefore, be a stay of proceedings of all four charges.