R. v. Bond Date:, 2015 BCPC 333

Citation: R. v. Bond Date: 20151118 2015 BCPC 0333 File No: 39413 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KEVIN DOUGLAS BOND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: B. Goddard Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Dates of Hearing: February 25, May 28, November 10, 2015 Date of Judgment: November 18, 2015

[1] Mr. Bond alleges that he has been denied his right to be tried within a reasonable time: Canadian Charter of Rights &Freedoms,

section 11(b). He seeks a judicial stay of this prosecution, relying on the principles stated in R vs Askov (SCC), [1990] 2 SCR 1199 and R vs Morin (SCC), [1992] 1 SCR 771. [2] Mr. Bond is charged with mischief, theft of a motor vehicle and driving while prohibited, each of those charges arising fromevents which occurred on June 20, 2014. Mr. Bond was arrested that evening and retained counsel immediately. The information wassworn on August 14, 2014. Mr. Bond made his first court appearance on August 18, 2014 and entered a plea of not guilty on August 25,2014.

On September 8, 2014, a trial date was fixed for February 25, 2015. [3] The trial commenced on February 25, 2015, but was not completed on that day. One Crown witness was absent because ofillness. [4] During the period February 25 to March 23, 2015, counsel were in communication with the Judicial Case Manager in anattempt to arrange a date for continuation of the trial. On March 25, 2015, the Judicial Case Manager offered April 9, 2015 as a date forcontinuation. However, Ms. Runyon, Mr. Bond’s counsel, was not available on that date.

On March 26, 2015, the Judicial CaseManager fixed May 28, 2015 for the continuation. [5] There were two cases on my list on May 28, 2105: (

i) the continuation of this matter; and (ii) a charge of sexual assault by anadult on a very young child. Crown counsel expressed the view that the latter was more urgent than the former, and should havepriority. I agreed, and proceeded with the sexual assault trial. Mr. Bond and Ms. Runyon waited most of the day, in the hope that thesexual assault trial might be completed before the end of the day, leaving some court time for the continuation of Mr. Bond’s trial. Unfortunately, the sexual assault trial took up the entire day.

I referred counsel in this case to the Judicial Case Manager to fix a newdate for continuation. On June 1, 2015, the Judicial Case Manager fixed November 10, 2015 for continuation. [6] The total elapsed time from the swearing of the information to the hearing of this application was 16 months. In Morin, JusticeSopinka said at paragraph 55 that an “institutional delay” of 8 to 10 months, from the swearing of the information to the end of the trial,is reasonably to be expected in provincial court prosecutions. [7] This is not a complex case. I heard three Crown witnesses on February 25, 2015.

The gist of their evidence was that, in June,2014, Mr. Bond was a tenant in the home of the complainant and was prohibited from driving. A quarrel arose and Mr. Bond fled thescene in the complainant’s vehicle. The relevant events took place over the space of a few hours. Neither the Crown nor the defencerequired any extensive period of time to prepare for trial. [8] Mr.

Goddard, for the Crown, submits that the time elapsed from February 25 to May 28, 2015 should not be regarded asinstitutional delay, because the risk that a witness will be unavailable for health reasons is inherent and unavoidable in the litigationprocess. He says that it is not unreasonable to delay a trial for such reasons, and that delay for such reasons does not infringe the right ofthe accused to trial within a reasonable time. I accept the principle as articulated by Mr, Goddard (see R vs Adams 2015 BCJ No. 706;2015 BCPC 83), but not its application to this case.

I think that the applicability of the principle depends on the proposition that, but forthe illness of the witness in question, the trial could, and probably would, have been completed on February 25, 2015. Unless thatproposition is established, one cannot conclude that it was the illness of the witness which caused the delay. [9] On November 10, 2015, when this application came on for hearing, Mr. Goddard asked me to adjourn the application becauseCrown witnesses (plural) were in attendance at court and waiting to give evidence. He said that I should hear their evidence beforehearing this application.

I decided to hear the application first. Mr. Goddard’s submission leads me to think that there is more than onefurther witness in the Crown’s case. Of course, I have not yet been told whether there will be defence evidence. While it is true that thiscase did not consume the entire court day on February 25, 2015, it did consume most of it. I think it unlikely that we could havecompleted the trial on that day if all of the Crown witnesses had been present and ready to testify. [10] It should be noted that: a. After February 25, 2015, and throughout her discussions with the Judicial Case Manager, Ms.

Runyon offered to be available on awide range of dates for continuation, and that the dates she offered were earlier than the dates fixed by the Judicial Case Manager. Unfortunately, none of them were found to be suitable, some because Crown counsel was not available and some because I was notavailable. b. Ms. Runyon rejected only one of the continuation dates proposed by the Judicial Case Manager, that because she was scheduledto be out of the country. That rejection does not impel me to attribute any part of the delay to the defence.

As Justice Cromwell said in Rvs Godin 2009 SCC 26 , [2009] 2 SCR 3 at paragraph 23: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to holdthemselves in a state of perpetual availability. [11] If there were no further factor to consider, I would find this a difficult decision. The criminal justice system is a complexmachine with many moving parts. Managing trial schedules is a challenging job. Things don’t always go as smoothly as one wouldhope. Those problems are more acute on northern Vancouver Island than in urban centres. For example, I am based in Nanaimo, 90minutes’ drive south of Campbell River.

I work, on a regular basis, in four different communities within a radius of about 150kilometres, and less frequently in five other communities farther apart. For those reasons, an institutional delay of more than 8 – 10months may be reasonable in northern Vancouver Island. While at the outer edge of the permissible, a delay of 16 months between theswearing of the information and the end of the trial might not, of itself, be unreasonable in a case of this kind. [12] The deciding factor on this application is the existence of specific prejudice to Mr. Bond, arising from his personalcircumstances.

[13] Mr. Bond is a poor man. Having been evicted from his residence at the complainant’s home, he had nowhere to live onVancouver Island. At the end of August, 2014, he moved to Kelowna, which is a full day’s bus journey from Campbell River. Round-trip bus fare is approximately $250. In February, 2015, he obtained part-time employment at the Kelowna Gospel Mission. His totalincome is approximately $14,000 per year. He attended court on February 25, 2015 at his own expense. Because he had only recentlyobtained employment, he could not afford a hotel in Campbell River.

The local shelter for the homeless was full, so he spent the night ofFebruary 24 – 25 on the streets of Campbell River. On April 25, 2015, one of Mr. Bond’s legs was amputated at the Kelowna hospital. He was discharged from hospital in late May to allow him to attend the new trial date in Campbell River. He travelled again toCampbell River by bus and stayed overnight at a local hotel. His hotel bill was approximately $100. The journey was painful andexhausting for him because he had not fully recovered from the amputation. Mr.

Bond attended the hearing of this application, onNovember 10, 2015, by video from the Kelowna courthouse. [14] Mr. Bond’s travel to attend court on February 25, 2015 was a necessary incident of the prosecution. Court proceedings causeinconvenience and expense to the participants. Sadly, those burdens fall more heavily on the poor than on the rich. Inconvenience,discomfort and expense which are necessarily incidental to the process ought not to be considered on an application of this kind.

However, those which are the result of delays in the court process are relevant to the relief sought on this application: R vs Poloni[2012] BCJ No. 12; 2012 BCCA 8 at paragraph 16. It is less clear that Mr. Bond’s second trip was also a necessary incident of theprosecution. If two days had been reserved for the trial in February, and arrangements could have been made for the attendance of allCrown witnesses at that time, the trial could have been completed in February. However, I am not in a position to assess who, if anyone,is responsible for the failure to complete the trial in February.

Whatever might be said about that, it is clear that the failure to completethe trial on May 28 was not a necessary incident of the prosecution. If court time had been available on May 28, the trial would havebeen completed on that day, and Mr. Bond would not face the prospect of a third trip to Campbell River. In my view, a third trip wouldbe an unconscionable imposition. That leads me to the conclusion that the delay in this case has been unreasonable. [15] I conclude that the delay in this case has infringed Mr. Bond’s rights under

section 11(

b) of the Charter. In R vs Rahey (SCC), [1987] 1 SCR 588, Justice Lamer said, at paragraphs 48 to 51, that the only appropriate remedy for such aninfringement is a judicial stay of the prosecution. He was supported in that conclusion by Chief Justice Dickson (who concurred in hisjudgment), by Justices Beetz and LeDain (at paragraph 58) and by Justices Wilson and Estey (at paragraph 61). Justices LaForest andMcIntyre disagreed (at paragraphs 109 – 110). Justice Chouinard took no

part in the judgment. Rahey continues to be the governingauthority on the point: R vs Morin at paragraph 80; R vs Nethery 2005 ABPC 343 , [2005] AJ No. 1886; 2005 ABPC 343. Forthat reason, I am obliged to order a judicial stay of this prosecution, and I do so. November 18, 2015 _________________________ T. Gouge, PCJ