R. v. Tjernstrom Date:, 2015 BCPC 399

Citation: R. v. Tjernstrom Date: 20151119 2015 BCPC 0399 File No: 422341 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TJERNSTROM RULING ON

SECTION 11(

b) APPLICATION OF THE HONOURABLE JUDGE G. KOTURBASH Counsel for the Crown: John Swanson Counsel for the Defendant: Tom Engel Place of Hearing: Penticton , B.C. Dates of Hearing: October 2, 6, 7 and 30, 2015 Date of Judgment: November 19, 2015

Introduction [ 1 ] Mr. Tjernstrom applies pursuant to

section 11(

b) of the Charter for a finding that his right to have a trial within a reasonable time has been impugned. He argues the appropriate remedy is a stay of proceedings. [ 2 ] Mr. Tjernstrom was arrested on March 22 nd , 2014, for assaulting and obstructing a police officer. [ 3 ] At his first appearance on June 12, 2014, his counsel was given a copy of the Crown disclosure. Following the first appearance, the matter was adjourned several times to allow the Crown to comply with other requests by Mr.

Tjernstrom’s counsel for additional disclosure. [ 4 ] On January 8, 2015, a not guilty plea was entered and the matter was fixed for a 3 day trial commencing on October 6 th in Penticton. [ 5 ] On October 8 th , after two days of trial, the trial was adjourned due to insufficient court time. [ 6 ] The trial is scheduled to continue on December 3 and 4, 2015. Assuming the trial finishes on December 4 th , the total delay is 542 days and sufficient to warrant an inquiry by the court. Chronology [ 7 ] Mr.

Tjernstrom was arrested and released on March 22, 2014 with an appearance notice requiring his attendance at Princeton Provincial Court on June 12, 2014. [ 8 ] Information 42234 charging Mr. Tjernstrom with assaulting and obstructing a police officer was sworn on June 10, 2014. [ 9 ] On June 12, 2014, Mr. Turner appeared as an agent for Mr. Engel, counsel for Mr. Tjernstrom. Mr. Turner received disclosure from the Crown and asked that the matter be adjourned to July 10 th . [ 10 ] On July 3 rd , Mr. Engel faxed a request to the Crown for additional disclosure. [ 11 ] On July 10 th Mr. Turner indicated that Mr.

Engel had sought further particulars from the Crown, had not received a response, and sought an adjournment to August 14 th . [ 12 ] On August 13 th , the Crown provided Mr. Engel, by fax, additional disclosure. The fax indicated that the audio disc containing the dispatch communications had been mailed to him. [ 13 ] On August 14 th , Mr. Turner told the court that Mr. Engel was still waiting for a copy of the disc, and sought an adjournment to September 11 th , 2014. [ 14 ] On September 10 th Mr. Engel sent another request to Crown counsel for further disclosure. In previous disclosure, the Crown advised Mr.

Engel that there was no dash-cam video of the incident, nor was there any surveillance footage of events that occurred at the hospital. Mr. Engel’s letter was primarily focused on asking why those recordings, did not exist. He also requested the dispatch recordings be provided in more user friendly format. [ 15 ] On September 11 th , Mr. Turner told the court that Mr. Engel was still waiting for disclosure and asked the matter to be adjourned to October 9, 2014. [ 16 ] On October 9 th , Mr. Turner said that Mr. Engel was still waiting for additional disclosure.

The Crown said that they received the request and the police were still working on it. The matter was adjourned to November 13 th . [ 17 ] On November 13 th , Mr. Turner told the court that Mr. Engel was still waiting for additional disclosure from the Crown. He said the original request was made on July 3 rd . He asked for a direction from the court that the disclosure be provided 1 week in advance of the next court date. He said Mr. Engel wanted sufficient time to speak with his client about the disclosure before entering a plea on the next date.

The Crown said that they received the information that was requested but that they needed to review it before sending it. [ 18 ] On November 27 th , 2014, Mr. Engel said he received some of the disclosure he sought in the September 10 th disclosure request. [ 19 ] On December 10 th , 2014, Mr. Engel sent a letter to Crown Counsel stating that many of the items requested in the September 10 th disclosure letter remained outstanding. He reminded the Crown that the judge had directed that the disclosure be provided by December 1 st . [ 20 ] On December 11 th , 2014, Mr. Turner told the court that Mr.

Engel had not received the disclosure that was promised on November 13 th . He did not elaborate on what, if anything remained outstanding. The Crown said their file indicated that the disclosure had been sent. The Crown provided Mr. Turner with another copy of the follow-up disclosure. The matter was adjourned to January 8 th , 2015.

[ 21 ] On January 8 th , 2015, Mr. Turner entered a not guilty plea on behalf of Mr. Tjernstrom. Mr. Turner told the court that Mr. Engel’s time estimate was 3 days. The Crown’s estimate was ½ day. In light of the disparity of time estimates, the Court adjourned the matter to the trial coordinator to

schedule a pre-trial before fixing a 3 day hearing. [ 22 ] A further request for additional disclosure including the policy in relation to the use of dash-cams and copy of the relevant portions of the Independent Investigations Office of BC file was sent to the Crown on January 14 th , 2015. In his letter. Mr. Engel pointed out that he set the trial without full disclosure because he believed full disclosure would be forthcoming. [ 23 ] On February 11 th , 2015, Mr. Engel sent a letter requesting further disclosure. This request arose out of a response by Cst.

Sheill on February 11 th , 2015. [ 24 ] A pre-trial was scheduled for February 12 th , 2015. On February 12 th , Mr. Engel, trial counsel appeared by telephone for the first time. He indicated to the court that because of the number of constitutional issues he anticipated the trial would take 3 days. The Crown maintained its estimate of ½ day for the Crown’s case. The Crown suggested scheduling the trial for a 1 ½ days in Princeton and adjourning for a continuation if necessary. Mr.

Engel told the court that if it were only scheduled for 1½ days and it did not finish his client would make an unreasonable trial delay argument. Mr. Engel said that his client would be willing to have a trial in Penticton in hopes of getting 3 consecutive days for trial. [ 25 ] At the pre-trial, Mr. Engel did not express any concerns to the court about a lack of disclosure or the need to

schedule the matter before a trial judge for a disclosure application. He did not express any concern about the pace in which the file was proceeding or indicate to the court that his client was suffering any prejudice as a result of the delays. [ 26 ] The matter was adjourned to the trial coordinator on February 13 th , 2015, to fix a 3 day trial in Penticton. [ 27 ] On February 13 th , 2015, the matter was adjourned by the trial coordinator to February 16 th . [ 28 ] On February 16 th , 2015, dates were fixed for trial. The trial was scheduled for October 6, 7, an 8, 2015, in Penticton.

A pre- trial conference was also scheduled for September 8 th , 2015. [ 29 ] The trial coordinator’s notes on the scheduling slip indicate that Mr. Engel was not available for the month of August and counsel for the Crown, the month of September. [ 30 ] David Webber, legal assistant for Mr. Engel, states in his affidavit that he was told by the trial coordinator that she was booking trials in August. He attests that because of Mr. Engel’s unavailability in August, he only provided dates for Mr. Engel in September and October. [ 31 ] Mr.

Webber said he recalled being told by the trial coordinator that the Crown was also not available in August but that does not coincide with Mr. Swanson’s submissions in court, nor is it consistent with the notes on the scheduling slip. [ 32 ] Mr. Webber said that he was never told by the trial coordinator whether a three day block of time was available in August. [ 33 ] The trial coordinator confirmed that there were no trial dates available before August. She is unable to say whether there was trial time in August. Since Mr.

Engel’s office stated he was unavailable in August, August dates were not canvassed or offered. [ 34 ] According to Mr. Webber, Mr. Engel’s first available date in September was September 8 th and the first date in October was October 5 th . [ 35 ] There is no evidence before the court of Mr. Engel’s availability before August. [ 36 ] On March 11 th , 2015, Mr. Engel sent another disclosure request to Crown counsel. [ 37 ] On August 25 th , Mr.

Engel served the Crown with notice of his client’s intention to bring an application for non-disclosure. [ 38 ] On September 8 th , 2015, a pre-trial of the matter was heard. The Crown indicated it would not be providing the additional disclosure sought by Mr. Engel on behalf of his client and the parties agreed that a disclosure application would need to be scheduled. [ 39 ] The matter was adjourned to the trial coordinator to fix a half day hearing for the application. [ 40 ] On October 2 nd , 2015 a disclosure application was heard.

The matter was informally resolved by the Crown agreeing to provide the disclosure requested. However, the court indicated that if it had been called upon to make an order, it would have ordered disclosure of some of the information sought. [ 41 ] The trial commenced on October 6 th and 7 th . On October 8 th , due to insufficient court time, the trial was adjourned for a continuation. Mr. Engel on behalf of his client indicated that he would be making an application pursuant to

section 11(

b) of the Charter arguing unreasonable trial delay. [ 42 ] The matter was adjourned to the trial coordinator to fix a date for a continuation of the trial and a

section 11(

b) application. [ 43 ] The application was scheduled for and commenced on October 30, 2015. [ 44 ] The trial is scheduled to continue on December 3 and 4, 2015. The trial coordinator confirms that these were the first dates the

court was available to accommodate the 2 day continuation. The Analytical Framework [45]

Section 11(

b) applications are always fact-specific. [46] My task is to balance the interests of the accused and society’s interests protected by s. 11(

b) with the length and causes ofdelay and any prejudice suffered by Mr. Tjernstrom. [47] The balancing must take into account the interests protected by s. 11(b): security of the person, liberty and the right to a fairtrial, as well as society’s interest in having the matters determined on their merits. [48] The factors to be considered in deciding whether the delay is “unreasonable” and therefore offends s. 11(

b) are set out in R. v.Morin at p. 13: 1. The length of the delay; 2. Waiver of time period; 3. The reasons for the delay including: a. inherent time requirements of the case; b. actions of the accused; c. actions of the Crown; d. limits on institutional resources; and e. other reasons for the delay. 4. Prejudice to the accused [49] A decision as to whether

section 11(

b) has been violated is not to be made by the application of a mathematical oradministrative formula, but by a judicial determination that balances all four factors. [50] While no one factor is determinative, the degree of prejudice suffered by the accused is a significant factor. [51] The accused has the legal burden of proof, on a balance of probabilities, to show that the delay was unreasonable. 1. Length of Delay [52] Despite the fact that it appears the investigation and police report were complete within days of the incident, Mr. Tjernstromwas given a first appearance date 80 days later. The information was also only sworn a couple of days before his first appearance. [53]

Section 11(

b) of the Charter does not protect against pre-charge delay. The right to be tried within a reasonable time istriggered once the person is charged with an offence. Charged means that an Information has been sworn. Therefore, the time to bescrutinized in a s. 11(

b) application, is the time that elapsed from the date of the swearing of the information to the end of the trial. R vKalanj, (SCC). [54] Although Green J. in R v Duszak, 2013 ONCJ 586, makes a persuasive argument that it is difficult to rationalize why a person isnot considered ‘charged’ for the purposes of

section 11(

b) application when s/he has been released on an appearance notice promise toappear undertaking or recognizance and the charge is laid after. However, like Judge Green I am bound by Kalanj. [55] In some situations, pre-charge delay can have an adverse impact on accused’s ability to make full answer and defence, but thereis no proof of that here. [56] The information charging Mr. Tjornstrom was sworn on June 10, 2014. [57] The delay from June 10, 2014 to December 4th, 2015, (the anticipated completion of the trial) is 542 days; 1 year, 5 months and24 days; or almost 18 months.

This length of delay is sufficient to warrant an inquiry by the court. 2. Waiver of Time-Periods [58] The Crown does not allege the any waiver of time-periods. 3. Reasons for the Delay a. Inherent Time Requirements [59] Reasonable preparation time is part of the inherent time requirements of a case, and the time reasonably required by both theCrown and the defence must be taken into account. This inherent delay involves case preparation and “intake requirements” such asretention of counsel, disclosure, pre-trial conferences and administrative paperwork. The intake period is generally characterized as“neutral”.

[60] Periods credited to a case’s inherent intake requirements are not charged to the defence, Crown or institutional factors and areeffectively deleted from the global time subject to the s. 11(b) ‘reasonableness’ inquiry. [61] The intake period starts when the Information is sworn and ends when the parties are ready to fix a date for trial. [62] In R. v Richards, 2010 ONSC 6202 , [2010] OJ No 4958 (SC), Code J. described the nature of neutral intake periods inthe following terms: Neutral intake periods include the time needed to arrange bail, retain counsel, prepare disclosure, review disclosure, write follow-uprequests and prepare for judicial pre-trials.

Accordingly, they vary in length, depending on the complexity of the case. In Morin, supra atpp. 25-6, an extremely simple

summary conviction case of drinking and driving, the Court held that the inherent time requirements of thecase, in order to complete all normal intake procedures, was two months. In R. v. G(C.R.) (2005), (ON CA), 206C.C.C. (3d) 262 at pp. 265 and 270 (Ont. C.A.), a somewhat more complex indictable case of spousal assault and sexual assault, theCourt held that “the neutral intake period” was seven and one-quarter months. Finally, in R. v. Schertzer et al (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 77-80 (Ont.

C.A.), a very complex multiple accused police corruption and conspiracy case, theCourt held that “the intake period” extended for over eleven months. [63] Mr. Engel argues that Mr. Tjernstrom’s case is not complex and the necessary period for intake should fall at the shorter end ofthe spectrum. [64] He submits that full disclosure should have been provided within one month of the first appearance and that the parties should have been in a position to fix a date on July 3rd. [65] I do not agree with Mr. Engel’s characterization.

Although the factual circumstances of this case might be considered simple,the case itself is not. Mr. Engel put the Crown on notice that he intends to make seven different Charter applications, in addition to thedisclosure application that was already heard. [66] The case is scheduled to last 2 further days, for a total of 4 days. [67] In the case at hand, the intake period commenced on June 10, 2014 and ended on February 16, 2015. The total number of daysis 252 days. [68] I agree with Mr.

Engel that despite all of the Charter issues being raised, 252 days clearly exceeds what one would normallyexpect an intake period for this type of case. [69] I am satisfied that given the nature of the case an appropriate intake period was 2 months or the third court appearance on August 14th. At that point, the Crown had already provided the initial disclosure package and responded to Mr. Engel’s follow-uprequest. [70] Mr. Engel argues that any delay that follows this two month intake period should be attributable to the Crown.

He says itwould be wrong to characterize the remaining time until the trial date as part of the intake period. He argues that the delay in fixing thetrial date in this case rests solely at the feet of the Crown because they did not provide disclosure in more timely fashion.

I do not agree. [71] Appellate courts have repeatedly stated that the Crown's obligation to provide full and complete disclosure by the time of trialdoes not justify the defence in refusing to take preliminary steps, such as setting dates for trial, until "every last bit of evidence" has beendisclosed. [72] The Stinchcombe obligation is to complete "initial disclosure", prior to plea, and to then provide "continuing" disclosure "whenadditional information is received" during the period leading up to trial. See: R. v. Kovacs-Tatar (2004), (ON CA),192 C.C.C. (3d) 91 (Ont. C.A.) at para. 47; R. v.

M. (N.N.) (2006), (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.) atpara. 37; R. v. Schertzer, supra at paras 93 and 131; R. v. Stinchcombe (1991), (SCC), 68 C.C.C. (3d) 1 (S.C.C.), at pp.13 -14. [73] In R. v M(NN) [2009] OJ No 2327 (CA) the Ontario Court of Appeal observed at para. 37: Where outstanding disclosure is alleged to explain a defence request for an adjournment, it is necessary to consider what documents wereoutstanding, when and in what circumstances they were requested, and if their disclosure is mandated by the Crown’s constitutional dutyof disclosure.

Where the defence has made a late request for material with no potential relevance, any delay that results should not beattributed to the Crown. A person charged with an offence should not be able to generate a basis for a s. 11(

b) application by making acontinuous stream of requests for materials that have no potential relevance, even if the Crown agrees to provide them. Even when theCrown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or toset a date for trial. As this court stated in R. v. Kovacs-Tatar (2004), (ON CA), 192 C.C.C. (3d) 91 (Ont.

C.A.) atpara. 47: “the Crown is not obliged to disclose every last bit of evidence before a trial date is set.” (Emphasis added) [74] Absent notice of the precise nature of all the Charter arguments, it would be unrealistic to impose an expectation on the Crownto anticipate the relevance and need to disclose all of what has been disclosed to date at the first appearance. [75] It is incumbent on Mr. Tjernstrom to prove a causal connection between delayed disclosure and delay of the proceedings itself. In R. v. Schertzer, 2009 ONCA 742 , [2009] O.J. No. 4425 (Ont.

C.A.) at para. 2, the Court commented on the need to doexactly that: In our view, the trial judge made two fundamental errors in finding that the s. 11(

b) rights of the Schertzer respondents were infringed.First, he erred in finding that the delay was due to disclosure problems. Whatever the problems with disclosure, and there clearly weresome, delay in making disclosure had no impact on the progress of the prosecution. There was no causal connection between problems

with disclosure and the timing of the proceedings. To the contrary, the delay was a reflection of the inherent time required to prepare and prosecute this complex case. [ 76 ] In effort to determine whether there was a causal connection between the delayed disclosure and the delay in these proceedings, one must identify what items remained outstanding after the Crown’s response of August 13 th . The court must then determine whether the defence was entitled to refuse to proceed to the next step in the process, entering a not guilty plea, before its requests were addressed. [ 77 ] In the September 10 th letter Mr.

Engel requested the following additional disclosure: • if any of the vehicles were equipped with on board dash cameras and if so, why they were not used; • why no recording of Cst. Sheill’s conversation with the passenger existed; • a photocopy of his client’s driver’s licence; • why there was no surveillance footage from the hospital; and • the dispatch recordings arranged in a more user friendly format. [ 78 ] There has been no reasonable explanation advanced by Mr.

Tjernstrom or his counsel as to why they could not enter a plea and fix a date for trial before receiving the information sought in the letter of September 10 th . Nor does a review of the type of information being sought enable me to draw an inference that the information was necessary before entering a plea. [ 79 ] If Mr.

Tjernstrom for example was waiting on the Crown to provide a dash-cam video of the incident, or the statement of a key witness, it would have been open to me to draw such an inference. [ 80 ] For the purposes of moving forward and fixing a trial date, I am satisfied the Crown met its disclosure obligations by August 14 th . More disclosure would follow but it was not of the type that required a delay in the entry of a plea of not guilty. [ 81 ] Nor can it be argued that there is causal link between the additional disclosure that was requested by Mr.

Engel following the guilty plea on January 8 th . [ 82 ] Sometimes counsel will need to set a date in the absence of full disclosure. Under those circumstances, it is preferable for counsel to indicate his or her reservations on the record and perhaps

schedule the matter for a disclosure application, but also set the date to ensure that the matter moves along. [ 83 ] If the disclosure is made in the interim, then time has not been lost. Or, as in the case at hand, a timely disclosure application can be made and again no time is lost. [ 84 ] It should be the objective of both the Crown and defence counsel to obtain early dates and this is one way to have done so at an earlier time. [ 85 ] For these reasons, I am not satisfied that any part of the initial 213 days of delay (June 10 - January 8) in these proceedings was due to actions of the Crown.

At a minimum, defence counsel's insistence that he could not take any further preliminary steps in the case without further disclosure, and the acquiescence of the Court in that position, simply added to the inherent time requirements of the case. Therefore, this initial 213 day period is accorded neutral weight in the s. 11(

b) analysis. b. Actions of the Accused [ 86 ] Although there is no onus on Mr. Tjernstrom to expedite his trial, action or inaction which is inconsistent with a desire for a timely trial is something that the court can take into account in assessing prejudice . [ 87 ] In the case at hand, Mr. Tjernstrom waited until January 8, 2015, or 213 days (7 months) to enter a not guilty plea and fix the matter for trial. [ 88 ] If Mr.

Tjernstrom was unhappy with the pace of the proceedings and the Crown’s willingness to provide timely disclosure, he could have entered a not guilty plea and set the matter down for a non-disclosure application before the trial judge. At a minimum he could have expressed his client’s concerns about the pace of the proceedings and drew the court’s attention to any prejudice that he might be suffering from. [ 89 ] Instead, his only submission in that regard came on November 13 th when Mr. Tjernstrom’s agent asked the court to provide disclosure within a week of the next court date so that Mr.

Engel could review the material with his client and enter a plea. [ 90 ] At the pre-trial before fixing the date, Mr. Tjernstrom’s counsel did not express any concerns regarding the delay of the matter, nor did he ask the court to explore early trial dates. Nothing was said about Mr. Tjernstrom suffering any type of prejudice. [ 91 ] Mr. Tjernstrom’s counsel’s primary concern was that the matter be scheduled for three consecutive days.

He told the court if the matter had to be adjourned for a continuation he would make an application for unreasonable trial delay on behalf of his client. [ 92 ] The only inference that can be drawn is that the threat of a trial delay application was premised on the potential of additional expenses that would flow from any bifurcation of the trial. There was no inquiry about whether a trial dates were available sooner in Princeton than Penticton. c. Actions of the Crown

[93] Included under this heading are adjournment requests by the Crown, failure or delay in disclosure, and change of venueapplications. [94] I have already addressed the issue of disclosure and its impact to my analysis. In the case at hand, the only action of the Crownthat contributed to the delay of this matter was the unavailability of the Crown for the month of September 2015. [95] A total of 28 days. d. Limits on Institutional Resources [96] Institutional or systemic delay begins when the parties are ready for trial but the system cannot accommodate them.

In otherwords, the institutional delay clock does not start when counsel is ready to fix a date for trial, but when counsel is available and preparedto conduct the trial. R. v Tran, 2012 ONCA 18. [97] The time necessary to accommodate preparation and availability is generally regarded as inherent or neutral time. [98] In R. v Lahiry, 2011 ONSC 6780, Code J. explains: Finally there is no place for fictions when seeking to prove Charter violations. It is rarely true that counsel is immediately available fortrial, when setting a date.

Whenever counsel take on a new case they complete various preliminary steps during the intake period. Oncethey have taken these steps and are ready to set a date for trial, they need to set aside sufficient time in their calendars to prepare the newcase for trial and to then conduct the trial. If the case is lengthy and complex, or if counsel are very busy, it may be some considerableperiod of time before counsel are ready for trial.

To use a simple hypothetical, if counsel has no time in his/her calendar to prepare a newcase for trial and to then try it until ten months in the future, and the earliest date that the Court has available for the trial is twelvemonths in the future, then systemic congestion in the Court is the cause of only two months of delay. The other ten months is delay thatthe accused needs, for entirely beneficial reasons, in order to allow his/her counsel of choice to prepare the case for trial and toaccommodate it in an otherwise busy calendar.

It is good and necessary delay that would have occurred in any event, even if the Courthad earlier available dates. It is a fiction to characterize this kind of useful delay as unwarranted or unreasonable or prejudicial. [99] In R. v. Morin, the SCC set an 8-10 month guideline for institutional delay in a case being tried in a provincial court. The Courtemphasized that this guideline is neither a limitation period nor a fixed ceiling on delay. Deviations of several months in either directioncan be justified by the presence or absence of prejudice.

Indeed, the SCC endorsed such a deviation in Morin itself, where 12 months ofinstitutional delay in a total delay of 14 ½ months was held not to constitute a violation of s. 11(b). More recently, in R. v. Godin, 2009SCC 26 , [2009] S.C.J. No. 26 at para 5, the SCC made it clear that, even where the guideline has been “substantiallyexceeded”, that is but one factor that must be considered in determining whether an accused person has established a violation of s.11(b). [100] It is important to recognize that in Morin, the court was dealing with a simple impaired driving trial.

For obvious reasons themore serious offences take longer to try. The longer a case, the tougher it is to obtain earlier dates. People can generally squeeze a shortmatter in with reasonably short notice, but longer matters require greater planning. In the case at hand, the trial was scheduled for 3consecutive days. For that reason, one would expect a longer period of institutional delay than for a one day criminal matter. [101] A not guilty plea was entered on January 8th, 2015. At the time the court adjourned the matter for a pre-trial.

The need for thepre-trial arose as a result of the wide disparity in the time estimates. The Crown said it was calling two witnesses and that it anticipatedits case to take ½ day. Mr. Engel’s agent said Mr. Engel’s estimate was 3 days but did not articulate why. If Mr. Tjernstrom’s trialcounsel had appeared by telephone to enter the plea on behalf of his client, the court likely would have proceeded with a pre-trial and sent the matter to the trial coordinator on January 8th to fix a trial date.

Instead, the matter was adjourned to the next sitting in Princeton which was February 13th. [102] The law appears to be settled that where a reasonable period of time is spent by the parties in relation to judicial pre-trialconferences, this time is properly viewed as part of the inherent time requirements of the case. See: R. v. Tran, at para. 34; R. v. Lahiry,at para. 116 [103] On February 16th, the trial coordinator fixed October 6, 7 and 8th as trial dates. [104] It is clear from the record that the court was not able to accommodate a 3 day trial before August 2015. However, what remainsunclear is whether Mr.

Engel and his client were ready to proceed before then. [105] Unfortunately, the record is completely silent on this issue. [106] Mr. Engel’s assistant attested that he did not provide any dates to the trial coordinator regarding Mr. Engel’s availability prior toAugust because he was told none were available. [107] It has been the law for several years now that institutional delay is measured from the time counsel is ready to proceed to trialand the court is unable to accommodate.

For reasons unbeknownst to me, it is seems very counsel dependent as to whether or not firstavailable dates are provided to the trial coordinator, some do and some do not. [108] It is not the function of the trial coordinator to make those inquires. Instead, it is the function of the trial coordinator toaccurately record them when they are provided. By doing so, there is a clear evidentiary record. A change in the cultural practice of notproviding first available dates is long overdue.

It helps to lay the foundation for an application if the need arises. [109] However, despite counsel failing to provide their earliest dates available to the trial coordinator, counsel can still place thosedates before the court, either by way of affidavit, or in submissions to the court.

[110] Counsel, in the case at hand has not done that. The obligation rests with the accused, not the Crown nor the court, to provide asufficient factual foundation for the application. Mr. Engel’s legal assistant could have attested to Mr. Engel’s first available datesand/or attached a copy of his calendar. Mr. Engel himself could have provided that information as well. [111] Without any evidence, I am not prepared to infer that Mr. Engel and his client were available and prepared for a 3 day trial inPenticton prior to September 8, 2014. The matter had other complexities beyond it being a three day sitting. Mr.

Engel practices inEdmonton and his client also lives outside the province. [112] The following delays can be appropriately characterized as institutional delay: February 12 (pre-trial completed) - February 16th (trial date fixed); October 8 (adjourned for continuation) - December 4th (anticipated completion of trial). [113] There is a total of 61 days of institutional delay. e. Other Reasons for the delay [114] This category encompasses any other reason for the delay, including actions of the trial judge. [115] There are no other reasons for the delay. 4. Prejudice [116] In R. v Godin, 2009 SCCC 26, Mr.

Justice Cromwell made the following observations about prejudice at para. 30: Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trial custodyor bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminalcharge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3. The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin, at p. 801, even inthe absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the morelikely that such an inference will be drawn.” Here, the delay exceeded the ordinary guidelines by a year or more, even though the casewas straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. [117] In considering the impact of prejudice, the authorities make it clear that it is prejudice arising from the delay, not the chargeitself, which is germane to the analysis.

However, what may initially be prejudice attributable to the charge may become prejudicearising from delay as its duration becomes unduly prolonged. R. v. Kovacs-Tatar (2004), (ON CA), 192 C.C.C. (3d)91 (ONCA). [118] Although a finding of prejudice is not dependent upon the accused asserting a speedy trial, in evaluating prejudice the court isentitled to consider action or in-action of the accused that is inconsistent with the desire for a timely trial.

For example, a failure on thepart of the defendant to put the court and the Crown on notice of the particular prejudice he is suffering may undermine his claim. [119] Notwithstanding a lengthy delay, the court will only direct a stay of proceedings where it can infer or the accused establishes ona balance of probabilities that the he suffered “serious or significant” prejudice. [120] Whether Mr. Tjernstrom suffered serious prejudice is a question of fact. By way of his affidavit, he alleges actual prejudice. a. Prejudice to his liberty interest [121] Mr.

Tjernstrom was released on an appearance notice and not placed on any bail terms. There is no evidence of any prejudiceregarding his liberty interest. b. Prejudice to his ability to make full answer & defence [122] Mr. Tjernstrom does not allege that the delay in any way adversely affected his ability to defend the charges. [123] Although memories tend to fade over time without something more, I am unwilling to infer that the accused ability to make fullanswer and defence has been impaired by the delay in the case at hand. c. Prejudice to security interests (anxiety, stigma, stress, finances) [124] Mr.

Tjernstrom asserts that suffered prejudice to his security interests, in the form of further legal expenses because of the trialcontinuation. I do not doubt that there will be some added costs; however, those expenses were never quantified for the court. [125] In R. v. Martin, [2000] BCJ No 1515 (BCSC), the court made the following comments about legal expenses as a ground forestablishing prejudice: Complaints about the time and cost of having to defend oneself as a result of a criminal charge may be universally shared by accusedpersons. They are not what one would describe in most cases as extraordinary.

In conducting the balancing process outlined byMcLachlin J. in Morin, I am of the view that something more than the mere statements of prejudice are required to establish seriousprejudice. For example, evidence of business statements showing a decline in revenue, or a doctor's report outlining the symptoms ofstress or anxiety experienced by an accused after being charged with a criminal offence, or the significant legal fees an accused paid todefend himself, would have to be produced and causally linked to allegations of prejudice in order to establish actual prejudice caused bythe delay.

[126] More recently in R. v. Widdifield, 2014 BCCA 170, the Court re-emphasized the import of litigants to providing a proper factualfoundation to support a claim of prejudice flowing from increased legal expenses. The Court observed at paragraph 109: I am also of the view that, in light of my finding that the Crown was not responsible for the delay caused by the November 26, 2012adjournment, the “collapse fee” cannot be said to have prejudiced Mr. Widdifield. As Mr. Justice Leask stated in R. v.

Poloni, 2009BCSC 882 at para. 37, 194 C.R.R. (2d) 120, aff’d 2012 BCCA 8 , 314 B.C.A.C. 297, “the delay causing the financialprejudice must have been caused by or attributed to the Crown”. Further, and in any event, the affidavit evidence provided byMr. Widdifield with respect to his financial circumstances is too vague to support a finding that as a result of the “collapse fee” hesuffered financial hardship affecting the security of his person or his ability to make full answer and defence. (Emphasis added) [127] I accept that Mr.

Tjernstrom incurred additional legal expenses because of the delay, but the evidence falls short of establishingthe degree of prejudice. I do not know what the expenses are, nor do I know what Mr. Tjernstrom’s current income is. All of this wouldbe necessary for me to assess whether the added legal expenses constituted significant prejudice for Mr. Tjernstrom. [128] Mr. Tjernstrom states that he is stressed about the possibility of losing his job because he needs to take more time off work andreturn to Penticton to finish the trial. Again it is difficult to assess how real the threat actually is.

Nothing has been filed by his employersubstantiating any such risk. [129] On this point, it is also important to note, that the only time Mr. Tjernstrom has attended court in this matter are October 5, 7 and8. He was not required nor did he attend any of the interim appearances, the disclosure application and was not directed to presenthimself for cross-examination on his affidavit in this application. [130] Mr. Tjernstrom attests that he was required to put his schooling on hold, to await the outcome of this trial. He does not state inhis affidavit when he would have been able to enrol in the program.

It is again difficult to assess how the “delay” impacted his decisionto forego his schooling. [131] Mr. Tjernstrom also attests to suffering from various medical issues leading up to the trial in October. He claimed that thesymptoms started in the summer of 2015. [132] With respect to the host of medical issues that he has suffered from, the affidavit evidence provided by Mr. Tjernstrom does notestablish that the issues were exacerbated by the delay in bringing this matter to trial. [133] I appreciate that Mr.

Tjernstrom will have to endure some of the symptoms associated to stress and anxiety further until thecompletion of the trial and that does equate to some prejudice. Conclusion [134] While I recognize there has been some prejudice to the accused, I do not see that prejudice as a significant factor in this balancingprocess. [135] In all the circumstances, I do not find the delay in this case to have been excessive. Given the reasons for the delay, I find thedelay to have fallen within the guidelines established in the case law.

It follows that the accused's rights to a trial in a reasonable timehave not been infringed. Further, in my opinion, in all of these circumstances of this case, the public interest in having a determination ofthese charges on their merits outweighs any rights of the accused to a speedier trial than has been the case here. [136] Accordingly, this application is dismissed. ______________________________________ THE HONOURABLE JUDGE G. KOTURBASH