R. v. Chand Date:, 2011 BCPC 439

Citation: R. v. Chand Date: 20111006 2011 BCPC 0439 File No: 36535-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SANIL KUMAR CHAND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J. Boccabella Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Date of Judgment: October 6, 2011 [ 1 ] THE COURT: This is in the matter of Regina v. Sunil Kumar Chand, and the court file is 36535-1, Campbell River Registry. INTRODUCTION [ 2 ] The accused applies for a stay of proceedings under s. 24(2) of the Charter by reason of infringement of his right to be tried in a reasonable time under s. 11(

b) of the Charter . The accused faces charges under a two-count information sworn the 15th of October 2009. Count 1 alleges driving a motor vehicle while impaired by alcohol or drug contrary to s. 253(1) (

a) of the Criminal Code . Count 2 alleges that the accused had the care or control of a motor vehicle while having consumed alcohol in such quantity that the concentration of blood exceed 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(

b) of the Code. [ 3 ] The accused has entered pleas of not guilty on both charges. [ 4 ] The chronology of events is not in dispute and it may be summarized as follows:

a) October 15th, 2009, information sworn.

b) October 19th, 2009, first appearance; a trial date of September 22nd, 2010 was set.

c) August 6th, 2010, defence application to adjourn trial date due to pre-wedding ceremony.

d) August 9th, 2010, new trial date of July 21st, 2011 fixed.

e) September 20th, 2010, Crown applies to adjourn the July 21 st , 2011 trial date due to lack of availability of a police officer on annual vacation leave, and

f) September 21, 2010 a new trial date of August 11th, 2011 was fixed.

[5] The defence points to the fact that when the trial was originally set for September 22nd, 2010, the trial date was 11 months andone week from the date of the information. The defendant further notes that the commencement of the trial on August 11th, 2011 resultsin a total delay from the swearing of the information of 22 months. It is the position of the accused that this is a case of overall delay of22 months in a one-stage

summary conviction prosecution. The accused argues that 22 months to the commencement of the trial in thismatter is some 12 months beyond the outer limit of the Supreme Court of Canada guidelines for

summary conviction cases as set out inparagraph 55 of R. v. Morin, (1992) (SCC), S.C.J. No. 25. The accused in this case argues that he has suffered prejudiceas a result of this delay. EVIDENCE AND SUBMISSIONS [6] This matter came on at the commencement of the trial before me on August 11th, 2011. It was the third scheduled trial date. Notice of the application was filed and served on Crown as required. No evidence was heard by me in connection with the actualcharges. [7] I have before me the following:

(1) Affidavit of Linda Dontchev, a legal assistant of Douglas J. Marion, who is counsel for the accused.

(2) Affidavit of Sanil Kumar Chand, sworn the 27th day of July 2011.

(3) Transcript of proceedings (first appearance) before Judicial Justice of the Peace Cox on October 19th, 2009.

(4) Transcript of proceedings (adjournment) before the Honourable Judge T.A. Dohm on August 6th, 2010.

(5) Transcript of proceedings (adjournment) before Judicial Justice of the Peace Ballman on August 16th, 2010.

(6) Transcript of proceedings (adjournment) before the Honourable Judge Saunderson on September 20th, 2010.

(7) Transcript of proceedings (adjournment) before Judicial Justice of the Peace Ballman on October 25th, 2010.

(8) Transcript of proceedings before Judicial Justice of the Peace Darke on June 27th, 2011.

(9) The viva voce evidence of the accused given on August 11th, 2011 in connection with the application for a judicial stay. [8] When the original trial date was set, counsel for the accused was Albert King, Q.C., of Nanaimo, B.C. A four-hour trial wasestimated with one to two Crown witnesses. On August 6th, 2010, Douglas J. Marion appeared as Mr. King's agent and sought anadjournment of the trial set for September 22nd, 2010. The transcript of proceedings of August 6th, 2010 contains the followingexchange between Mr. Marion and the court. Starting at page 1, lines 9 through 47 and then over to page 2: MR.

MARION: Good morning, Your Honour. I appear as agent for Mr. Bert King and as agent for Mr. Chand on this application. Thisis a matter that is -- it's an impaired driving file, Your Honour. Mr. Chand is set for trial on September 22nd. The trial confirmationhearing date is on Monday. I'm appearing because Mr. Chand is going to be married on September 20th in the Punjab, India. It is a traditional familywedding. There will be hundreds of people invited. It is difficult to reschedule.

I have spoken to -- I haven't been able to speak to Mr.King, but I have spoken with his office and his secretary and he did get back to my office. How it is that the date was set in light of the wedding is unclear. Mr. Chand seems to recall giving a date to the -- to Mr. King'soffice and Mr. King's office doesn't recall that. I don't know where we can put that, but I can say this, Your Honour. It is the first trialdate. It would be extraordinarily difficult to reschedule this type of wedding. I can't say I've been to one of them, but my impression inspeaking with Mr.

Chand is that there are deep springs of tradition involved and him not being here would -- or being there or trying toadjourn it would be -- THE COURT: In other words, Mr. Chand has not, since the 19th of October 2009, known that his trial date, September 22, 2010, wouldconflict with his marriage date, September 20, 2010. That's what you're telling me. MR. MARION: I'm not saying that, though, Your Honour, because my understanding from Mr. Chand is that he's been trying to gethold of Mr. King. I know Mr. King's hard to get ahold of. Mr.

King does have a secretary, though, but his secretary -- she has -- he hasbeen trying to get hold of them. I'm not sure how long it is that Mr. Chand has known about this, but I anticipate he -- I don't think thathe knew right away that that trial date was set. THE COURT: Even if he didn't know for three months, why is the application being made now? MR. MARION: It's being made -- well, I can't answer that, Your Honour, other than that he came to my office and I'm here making theapplication at the first opportunity that I can, and he does tell me that he was trying to contact Mr.

King to make the application earlier. [9] Crown did not oppose the application for the adjournment. At lines 28 to 40 of page 2 of the transcript the Honourable JudgeDohm stated as follows: THE COURT: A trial date should be adjourned for reasons other than negligence. Whether that negligence is on behalf of the counselor on behalf of the client, it shouldn't be a ground for adjourning a trial. This is simply a case of not attending to business. It is one ofthe -- it's very hard to understand how that situation could arise.

But nonetheless, in light of the light put on it by the Crown I will allow the adjournment, the delay obviously going to lie with thedefence. There can't be no other way that it will lie, at least from loss of the first trial date on to when it's set.

[10] The matter was put over on August 16th, 2010 to a trial confirmation hearing of June 13th, 2011 with respect to the new trial dateof July 21st, 2011. On September 20th, 2010 the matter came before the Honourable Judge Saunderson. Crown sought an adjournmentof the July 21st, 2011 date due to the fact that the investigating constable was booked for vacation leave on that date. Although theaccused was not present, his legal counsel did not oppose the adjournment. The matter was put over to October 20th, 2010 to set a trialconfirmation hearing. The trial confirmation hearing was set for June 27th, 2011.

On June 27th, 2011 the matter came before theJudicial Justice of the Peace Darke for the trial confirmation hearing. At that point the accused was representing himself and seeking toconfirm an arrangement with Mr. Marion to continue to represent him. [11] At the outset of the application before me Mr. Marion fulfilled his duty as an officer of the court and was very candid withrespect to the circumstances surrounding the original adjournment. When he had applied for the original adjournment on August 6th,2010 as agent for Mr. King, he informed the court that the accused would be attending a wedding in India.

That was not the case. Itappears that Mr. Marion was misinformed by somebody. In fact, what the accused had arranged was to attend a family pre-weddingceremony in the Punjab. Although this was an optional ceremony, it is part of a traditional Hindu wedding. It involved around 35members of the groom's family, but not the bride nor her family. The timing of these types of ceremonies are set in accordance withHindu customs. It was during this period of time, shortly before the original trial date, that the accused also became engaged.

Theaccused arranged the pre-wedding ceremony approximately three to four weeks before the adjournment application was made on August6th, 2010. As of the date of the hearing of this application the accused was still not married. [12] According to the evidence of the accused, part of the incentive for the accused to travel to India prior to the trial of this matterwas his concern that a conviction on the charges that he was facing may have some adverse implications for him with respect to histravel to India. As I understand it, the accused holds both a Canadian as well as an Indian passport.

As it turns out, on the day of thescheduled trial for September 22nd, 2010, the accused was actually still in Vancouver preparing for his departure to India. In no way doI believe that Mr. Marion intended to mislead the court about the full circumstances surrounding the marriage ceremony that was thebasis for the adjournment application. Clearly the information that he was provided, from some source, was inadequate and inaccurate.

From the transcript of the proceedings before the Honourable Judge Dohm it appears to me that the source of the information was theaccused. [13] The other relevant evidence before me relates to the rescheduling of the trial to July 21st, 2011. The affidavit of Linda JeanDontchev discloses that as at April 9th, 2010 there were 73 dates that Mr. Marion, then acting as counsel for the accused, was availablebetween August 10 of 2010 through to September 30th of 2011. [14] In his affidavit and in his viva voce evidence the accused detailed what he alleges as actual prejudice to him as a result of thedelay.

He characterizes it as nervousness and stress relating to the outcome of the trial while having the matter hanging over him for asignificant period of time. He also deposes that he has the stress of potentially losing his job should he be convicted and lose his driver'slicence. [15] The law with respect to this type of application that is commonly referred to as an Askov application is set out in the SupremeCourt of Canada decision in R. v. Morin, (1992) (SCC), 1 S.C.R. 771, and then revisited by the Supreme Court ofCanada in R. v. Godin, (2009) 2009 SCC 26 , S.C.J. 26.

Our Court of Appeal has recently provided a succinct

summary of thelaw in this area in the case of R. v. Ghavami, 2010 BCCA 126 at paragraphs 43 through 53: [43] On an application by an accused for a remedy under s. 24(1) of the Charter, a court must first determine the total length of delayfrom charging to the end of trial. From this number should be deducted any waiver of time periods by the accused. Such waiver can beexplicit or implicit, but it must be clear and unequivocal (Morin at 789). Once the length of delay is determined, only if the “period is ofsufficient length to raise an issue as to its reasonableness” should the s. 11(

b) inquiry be undertaken (Morin at 789, 810-11). [44] It then falls to the court to inquire into the reasons for delay. The Supreme Court in Morin divided the potential reasons into fivecategories: a. Inherent time requirements b. Actions of the accused c. Actions of the Crown d. Limits on institutional resources e. Other reasons for delay The delay must be apportioned amongst these categories.

This is not an exercise in assigning blame, but an attempt to identify the causesof delay. [45] The inherent time requirements flow directly from the Crown's charging decision and include the complexity of the case, thetime required for preparation, “intake requirements” (consisting of retention of counsel, bail hearings, police and administrativepaperwork, disclosure, and the like), and, if necessary, a preliminary inquiry.

Inherent time requirements are meant to recognize that“[s]ome delay is inevitable” in the administration of the criminal justice system (Morin at 791-92), and that such delay is not attributableto the Crown. [46] Actions of the accused and Crown must be actions within the control of the parties, which are not necessary consequences of thecharging decision.

The parties must come prepared to explain the reasons for their actions (Godin), such as change of venue motions,attacks on wiretap packets, adjournments which do not amount to waiver (if by the accused), attacks on search warrants, re-election ofmode of trial, change of solicitor, failure or delay in disclosure by the Crown, or change of manner of proceeding (summary orindictment) (Morin at 793-94).

[47] Limits on institutional resources are relevant only insofar as the system cannot accommodate parties who are ready for trial. Thistype of delay is attributable to the court system itself, and is a flexible consideration that will yield, where necessary, to other factors(Morin at 794-800). [48] Other reasons for delay include actions taken by trial judges.

This type of action “cannot be relied upon by the Crown to justify[delay]”, and can weigh against the Crown even though it is not directly attributable to voluntary Crown action (Morin at 800-1). [49] Once the court has determined the reasons for the delay, it must turn to the issue of prejudice to the accused occasioned by thedelay, bearing in mind that the “question of prejudice cannot be assessed separately from the length of the delay” (Godin at para. 31).The prejudice inquiry examines the effect of delay on the three interests s. 11(

b) protects: liberty, security of the person, and the right to afair trial. As Sopinka J. stated in Morin (at 786-87): The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place whileevidence is available and fresh. [A] secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeing that theleast fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy theconfidence of the public. As observed by Martin J.A. in R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73 (Ont. C.A.):“Trials held within a reasonable time have an intrinsic value. The constitutional guarantee en[s]ures to the benefit of society as a wholeand, indeed, to the ultimate benefit of the accused...” (p. 96).

In some cases, however, the accused has no interest in an early trial andsociety's interest will not parallel that of the accused. [50] Prejudice can be either actual or inferred from the fact of delay, but s. 11(

b) must not be allowed to become an offensive weaponin the hands of an accused (Morin at 801-3). The necessary counterweight to prejudice to the accused is the interest of society in lawenforcement and “in ensuring that those who transgress the law are brought to trial and dealt with according to the law” (Morin at 787quoting R. v. Askov, (SCC), [1990] 2 S.C.R. 1199). [51] Taking all of the above into consideration, the court must balance the factors to determine whether the delay is unreasonable(Morin at 788).

As Cromwell J. observed in Godin at para. 18: [18] The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable isassessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account thereasons for the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks to protect. This often and inevitably leads tominute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important,however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

As Sopinka J. noted in Morin, at p. 787,“[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determinationbalancing the interests which [s.11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise thecause of delay.” [52] In our view, balancing makes sense only if weight is attributed to the causes of delay. Inherent time requirements should receivelittle if any weight, because they are not attributable to either the state or the accused, and because some delay is inevitable.

Actual orinferred prejudice to the accused will be accorded a certain weight, but it may be counter-balanced by delay caused or contributed to bythe deliberate actions of the defence. Correspondingly, if the organs of state – Crown, justice system, or judiciary – are responsible forsome part of the delay, then the public interest will be entitled to less weight when balanced against the accused’s right to a timely trial,because the protectors of the public interest have failed to live up to the standard expected of them.

However, institutional and judicialdelays will be accorded less weight than delays actually within the scope of the Crown’s ability to expedite proceedings, because theyare not the result of voluntary Crown action. [53] By deliberately assigning relative weight to the different causes of delay and balancing them against one another, the judicialreasoning process becomes transparent.

Although balancing will inevitably be fact-specific and contextual, it is important that the court’sreasoning process not be opaque, so that the accused, the Crown and the public are able to identify why or not a particular delay isunreasonable. [16] The issues before me are as follows:

a) Whether there has been an unreasonable delay in this matter coming on for trial and hence a violation of the accused's rightsunder s. 11(

b) of the Charter.

b) Whether the accused has suffered "real prejudice."

c) Whether there is any inferred prejudice arising from the delay, and

d) What is the appropriate remedy if any in the circumstances. [17] I now turn to the Morin analytical framework and its application to the facts before me. With respect to the length of delay, thenet delay here of 22 months is prima facie excessive, and a court scrutiny of that delay is warranted. Approximately 11 and a halfmonths of that delay is attributable to the adjournment of the original trial date of September 22nd, 2010 to the August 11th, 2011 date.

Of that period of time approximately three weeks was attributable to the further adjournment from the second trial date of July 21st,2011 to August 11th, 2011, due to the lack of availability of the police witness. [18] When the Honourable Judge Dohm granted the adjournment of the September 22nd, 2010 trial date he specifically said, and Iagain quote him:

I will allow the adjournment, the delay obviously going to lie with the defence. There can't be [any] other way that it will lie, at least from loss of the first trial date on to when it's set. Accordingly the accused must bear responsibility for a large portion of the delay from September 22nd, 2010 until at least when the new trial date of July 21st, 2011 was fixed. [ 19 ] With respect to the waiver of time periods in this case there are no waivers. Inherent time requirements of this case are not a factor.

This case is a straightforward "impaired/point zero eight" prosecution with a maximum of two Crown witnesses. The delay was entirely unrelated to the inherent time requirements of the case. [ 20 ] Turning to the question of the actions of the accused, that is an important factor that I must consider. Without second-guessing the decision made by the Honourable Judge Dohm to grant the adjournment, there is no doubt that adjournment was based on inaccurate information.

I have concluded that the accused was less than forthright in explaining to his counsel the actual reasons that he wanted to secure an adjournment of the trial. He made arrangements for his trip several months after the trial date was set. He permitted the importance of that trip to be exaggerated to the court. His motive for doing so was his concern about limitations on his ability to travel in the event that he was convicted of the charges pending against him.

He should not be rewarded for making those other matters a priority over dealing with his charges. [ 21 ] The accused has raised the issue of the availability of court dates on which his new counsel Mr. Marion was also available. In R. v. Morin the Supreme Court held that "account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case." (see para. 41) In Godin , Cromwell J. for the court stated, and I quote: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability. (see para. 23) Cromwell J. further notes at paragraph 23 as follows: To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable. [ 22 ] I think that the converse should also be true, and the inability of the Crown or the court system to accommodate the first available date of defence counsel, who has sought and received an adjournment, should not be granted any more weight than the situation described by Mr.

Justice Cromwell above. [ 23 ] There is one matter that was not squarely before me, and that is the availability of the accused's prior counsel, Mr. King, when the first trial date was set. Mr. Marion acknowledged in his submissions that Mr. King is a very busy criminal lawyer, and submitted that it is reasonable for me to infer that the setting of the first trial date needed to make some accommodation for Mr.

King's schedule. [ 24 ] There is no doubt that setting Provincial Court trials in North Vancouver Island District within the Morin guidelines has for several years been very challenging due to the absence of judges and court staff. Simply put, institutional resources are stretched beyond their limits in order to comply with the Morin guideline for institutional delay of between eight to ten months.

The Supreme Court of Canada did recognize in Morin that local conditions must be taken into account and that the guidelines will need to be adjusted from time to time to reflect changing circumstances. (see paras. 55 to 57) [ 25 ] The case before me is not one where the parties were all ready to proceed and it could not proceed due to the lack of available judicial time on the scheduled date. So far as I am aware no objection was made by the accused concerning the length of time for the first trial date to occur.

That is not to say that the defence waived any rights the accused had, notwithstanding the fixing of that date beyond the Morin guidelines. [ 26 ] I now turn to the question of the actions of the Crown. I have concluded based on the evidence before me, that is not a significant factor in this set of circumstances. The Crown did set the second trial date when the police constable was away; however, they took steps to quickly remedy that situation. The loss of three weeks would reasonably be attributable to the Crown.

Overall in this matter it is fair to apportion all of the delay from the loss of the first trial date on September 22nd, 2010 to the second trial date July 12th, 2011, being slightly less than 10 months, to the accused in this case, and three weeks to the Crown. When the 10 months is deducted from the overall delay of 22 months, it leaves a total delay of approximately 12 months for institutional delay and delay on the part of the Crown.

In the whole of the circumstances, although it is beyond the Morin guidelines, I must balance that against the circumstances that gave rise to the first adjournment, and in particular the actions of the accused. [ 27 ] I now turn to the issue of the prejudice of the accused that may be both inferred and actual. Here the actual prejudice allegedly suffered by the accused is really of his own making. He chose to seek the adjournment. By doing so he has prolonged the disposition of this matter. The inferred prejudice, given the overall additional timeframe up to the first trial date is not great.

It does not outweigh the other factors that I am required to consider. [ 28 ] On balance, and for the foregoing reasons, I am not persuaded the accused's right to a trial within a reasonable time was infringed. There has been very little in the way of an infringement on his liberty. When balanced against the public interest to have a trial of the allegations, I have concluded that the balance favours a trial. This concludes my reasons for judgment. (JUDGMENT CONCLUDED)