R. v. Unger Date:, 2011 BCPC 248

Citation: R. v. Unger Date: 20110922 2011 BCPC 0248 File No: 44397 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LAURA MARIE UNGER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: M. Kaay Counsel for the Accused: C.R. Hewson Place of Hearing: Kelowna , B.C. Date of Hearing: 21 September 2011 Date of Judgment: 22 September 2011 I. INTRODUCTION [ 1 ] The accused is charged with having the care and control of a motor vehicle when her blood alcohol level was over the legal limit and when her ability to operate a motor vehicle was impaired by alcohol. Counsel alleges that her s.11(

b) Charter right to be tried within a reasonable time has been violated. A judicial stay of proceedings is sought. There has been a 24 month delay from the date of the not guilty plea to the second scheduled trial date. II. THE FACTS [ 2 ] The relevant timeline is as follows: (

a) The accused was arrested on June 21, 2009. (

b) The Information was sworn August 26. 2009.

(

c) The first court appearance on September 2, 2009 was adjourned to allow the accused to get counsel. (

d) At the second court appearance on September 16, 2009, newly retained counsel sought and obtained an adjournment in order to givetime for counsel to review the disclosure material. (

e) At the third court appearance on September 30, 2009 a not guilty plea was entered and the matter was adjourned to fix a trial date. The available trial dates at that time were between August 12, 2010 and November 30, 2010. (

f) At the fourth court appearance on October 7, 2009, the October 12, 2010 trial date was set, with a trial conformation court date ofSeptember 9, 2010 also being set. (

g) At the fifth court appearance, which was the September 9, 2010 trial conformation date, the criminal trials were all adjourned, tomake room for civil court matters to proceed on the October 12, 2010 scheduled trial date. (This was in the context of Vernon courthaving the longest delays in the province for civil matters (25 months) as reported at page 29 of “Justice Delayed: A Report of theProvincial Court of British Columbia Concerning Judicial Resources – September 14, 2010.) (

h) At the sixth court appearance on September 15, 2010 a new trial date of October 31, 2011 was fixed, with a new trial confirmationdate of September 22, 2011. (

i) The matter was called ahead to September 14, 2011 for the hearing of this s. 11(

b) Charter argument. The court list was too longon September 14, 2011 for this matter to be heard, so I adjourned it to be heard in Kelowna on September 21, 2011. [3] The delay since the alleged offence date is over 27 months. The systemic delay in this case, since the not guilty plea was entered,is two years. It can’t be said that either the accused or the Crown has caused any of this delay. The delay is solely as a result of nothaving sufficient judicial resources to have the matter heard earlier. III. ANALYSIS [4] In 1990 the Supreme Court of Canada, in the case of R. v.

Askov (SCC), [1990] 2 S.C.R. 1199, set a guidelineof between 6 and 8 months for institutional delay in Provincial Court for this type of case, before a s.11(

b) Charter argument could beadvanced. [5] In R. v. Morin (SCC), [1992] 1 S.C.R. 771 the Supreme Court of Canada revisited this issue in an impaireddriving case where there was a 14 ½ month delay between arraignment and trial date. The trial judge had held that this delay had notinfringed the right of the accused to be tried within a reasonable time. On appeal, the court found that it was an unreasonable delay and ajudicial stay was entered. The court suggested a guideline of 8 to 10 months for institutional delay.

In the decision, the court set out thefollowing directions that are to this day often quoted as the seminal principles to be considered with this type of application: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably leads to delay or are otherwise the cause of delay. As I noted in Smith, supra, “it is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?” (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. The length of the delay; 2. Waiver of time periods; 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 delay; and 4. Prejudice to the accused... ...How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for theavailable resources, this consideration cannot be used to render s. 11(

b) meaningless. The Court cannot simply accede to thegovernment’s allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resourcelimitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources toprevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration ofjustice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources.

This periodof time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixedceiling on delay... [6] The Supreme Court of Canada, in recent years, has yet again confirmed this same approach in the case of R. v. Godin 2009 SCC26 , [2009] 2 S.C.R. 3 involving an accused charged with sexual assault, where the trial was delayed over two years from the

date of arrest. The court held that in the absence of specific evidence of prejudice to the accused’s liberty and security interests or his interest in a fair trial, prejudice may be inferred from the length of the delay. The longer the delay, the more likely such an inference will be drawn. [ 7 ] Counsel have referred me to many other cases that have also dealt with a Morin analysis. However, I am of the view that the Supreme Court of Canada has given guiding principles that are sufficiently clear, that the court need not look at other lower level cases to interpret those guiding principles.

However, when following the Morin principles, the court is to take into account local conditions. [ 8 ] In the case at bar, simply put, since the date of the not guilty plea, the parties have been ready to fix a trial date. The length of the institutional delay in this case (from not guilty plea to second trial date) is 24 months. There has been no waiver of time by the accused. The reason for this 24 month delay is simply institutional and systemic.

There were insufficient judicial and court resources available for it to be heard on the first scheduled trial date. [ 9 ] All would agree that any impaired driving charge is of sufficient public interest that it ought to proceed on the merits and the guiding principle in the Morin case is that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay. There is only a fine line between impaired driving and impaired driving causing death or bodily harm. An impaired driver is a predictable accident waiting to happen.

That being said, all would also agree that other matters involving acts of actual violence, matters where the accused is detained prior to the trial and matters involving child protection and child custody, each has an even higher priority than the case at bar. All would also agree that there must be some balancing of judicial time between the criminal, family and civil matters under the jurisdiction of this court.

All of these matters are competing for the same judicial resources and must also be heard within a reasonable time. [ 10 ] If insufficient judicial resources are made available in the Okanagan, the available resources must be allocated as judicially as possible to insure that the highest priority matters are heard.

This is in the context of addressing criminal, family and civil matters and covering courts sittings in Kelowna, Penticton, Vernon, Salmon Arm, Revelstoke and Princeton. [ 11 ] An Okanagan District Review Process published in 2008 held that the Okanagan District needed thirteen full time judges to have a full complement sufficient to have all criminal, civil and family matters heard within a reasonable time. That assessment was based on a 10% growth in cases in the District from 2004 to 2008. We were never brought up to that full complement.

Another full time judge was appointed for the Okanagan in October of 2010, but around the same time, three full time senior judges have retired from full time employment and are now working half time under the senior judge’s program, in circumstances where there has been no replacement for them in spite of these retirements being known for some considerable time in advance. [ 12 ] As the administrative judge for the Okanagan, I can say that we currently have the equivalent of 11.5 judges (ten full-time and three half-time). This is 1.5 judges shy of the needed full complement of thirteen judges.

On March 31, 2012 our District number will be reduced to 10.5 judges (eight full-time and five half-time) when two more of our senior judges in the District are scheduled to retire and start working half-time. If they are also not replaced, the consequences of this plan are foreseeable and predictable, given we will then be down 19% from the full complement of judges needed.

It is little comfort to the good citizens of the Okanagan that the judicial shortages leading to delays in some other communities of the province are even worse than in the Okanagan. [ 13 ] It is not for the courts to decide what judicial resources will be made available by the government in times of economic restraint. The court can only repeat the Morin principle that the government does have the constitutional obligation to commit sufficient resources to prevent unreasonable delay.

If the government fails in this regard, one of the consequences will be that lower priority criminal matters will be judicially stayed for failure to be heard in a reasonable time. Many of these lower priority maters, like the case at bar, are still significant matters. A balance must be struck between criminal, family and civil matters, and it is unreasonable to think that all criminal matters will proceed at the expense of child protection, family and civil matters not being heard within a reasonable time.

After all, a family custody matter or a child protection matter is analogous to a sentence lasting a lifetime and our civil court process is at the heart of the rule of law and dealing with societal differences in a civil manner. [ 14 ] All criminal court matters in the Okanagan are initially set down for trial dates within a marginally reasonable window of time. The criminal trial matters scheduled to be heard in 2012 are already set a year in advance.

When a new high priority matter comes up, it becomes double booked on top of the already full lists, in order to insure that the high priority matter is definitely heard within a reasonable time. On the scheduled trial date, the highest priority matter is dealt with first. On many dates, between the multiple courts sitting in any given community, all of the matters are accommodated. However, it is inevitable that on many dates, important matters that are deemed to have lower priority will not be heard. The end result is that they then run the risk of not being heard within a reasonable time, contrary to s. 11(

b) of the Charter . If society wants to be sure all of these matters are heard on their merits, then more judicial resources are required. [ 15 ] The recent September 14, 2011 decision of Provincial Court Associate Chief Judge M.J. Brecknell in the case of R. v. Hammer [2011] B.C.J. No. 1726 spoke in great detail of a similar situation in the Prince George region.

That case involved a judicial stay of proceedings against three accused charged with possession of cocaine for the purpose of trafficking. [ 16 ] Similarly, Judge Webb of our Provincial Court, addressed this very same issue in his Cranbrook region in the case of R. v. Williams [2010] B.C.J. No. 1244 where the lack of court resources led to the judicial stay of an accused charged with possession of cocaine for the purpose of trafficking. I echo paragraphs 34 - 36 of his judgment: In the case of Mr. Williams, is it fair to arrest him and place him on bail that restricts his freedom pending a trial?

It is, in my view, fair to do that, but it is not fair to place him on bail, restrict his freedoms, and then fail to provide sufficient facilities, sufficient institutional resources, and sufficient judges and courtrooms, to allow him to have a trial within a reasonable time as required by the Charter of Rights . Clearly, this is not fair. It is not fair to Mr. Williams. It is not fair to the police who have done all they can do. It is not fair to the Crown who have done all that they can do. It is not fair to the local community.

It is important that people involved in drugs in our community be held accountable, that their charges be determined by a trial on the merits. However, it is equally important that

individual rights, including the right to be tried within a reasonable time, be protected. The system at present in our area is failing. Court lists are overbooked. Files take too long to get to court and often do not proceed on the day set for trial because of overbooking. Mr. Williams is yet another example of the problem. This is a simple matter expected to take two-and-a-half hours. It will be more than 23 months before the trial even starts.

That is too long. [ 17 ] A year ago a very detailed analysis of this situation was also contained in the report entitled, “Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources,” dated September 14, 2010 and later updated March 31, 2011 (www.provincialcourt.bc.ca Reports of the Court). [ 18 ] The accused, in her affidavit, speaks of many sleepless nights as the result of anxiety over this court case. She has lost 20 pounds due to the stress of it all.

She has had additional legal costs associated with having so many extra court days. [ 19 ] I did not hear any direct evidence regarding actual prejudice to her ability to make full answer and defence in this case, but following the logic in the Godin case, I am prepared to infer from a 24 month institutional delay that actual prejudice does exist. It is asking too much of the investigating officer to remember 27 months later what he observed.

Good note taking can aid in that process, especially if there is a unique crime or unique fact pattern, but at some point there is prejudice in a trial if an officer, who deals frequently with these types of matters, has to have an actual recall of these specific events 27 months later. [ 20 ] We are a society bound together by the rule of law. That law requires these matters to be heard within a reasonable time. There is good reason for that rule. We believe in justice, and there is a legitimate concern that if things are not heard within a reasonable time, justice may not be served.

People forget the details of the events. As a Judge, I want these matters to be decided on their merits for the good of the community. However, in this case, the institutional delay has been far too long to ignore. IV. RULING [ 21 ] I find that the s.11(

b) Charter right of the accused to be tried within a reasonable time has been breached and under s. 24(2) I issue a stay of proceedings on all counts. ______________________ R.R. Smith, P.C.J.