R. v. T.D.U.G. Date:, 2012 BCPC 373

Citation: R. v. T.D.U.G. Date: 20120918 2012 BCPC 0373 File No: 5088-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.D.U.G. EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Youth Matter - Restriction on Access s. 118 and s. 110 YCJA Counsel for the Crown: L. Ashton

Counsel for the Defendant: R. Mansoori-Dara Place of Hearing: North Vancouver, B.C. Date of Judgment: September 18, 2012 [1] THE COURT: Mr. G. is charged as a young person within the meaning of the Youth Criminal Justice Act with two counts ofaggravated assault and two counts of assault with a weapon, being a baton or bat, involving two complainants. The event is alleged tohave occurred on December 3rd, 2010, in North Vancouver. [2] The circumstances of the offence arise from a melee involving a large group of youths under the influence of alcohol and othersubstances.

One complainant suffered serious injuries including bleeding between the lining covering his brain and skull and one of hisears was nearly severed from his head. [3] Mr. G. applies for a stay of proceedings under s. 24(1) of the Charter as a result of an alleged breach of his right as set out in s.11(

b) to a trial within a reasonable time. His trial is now set for seven days commencing September 24th, 2012. An agreed statement offacts was filed on this application. [4] The youth was arrested on the day of the alleged offence and was released on December 6th on a s. 31 recognizance with aresponsible person supervising him. The matter was arraigned on February 7th, 2011, and a trial date of December 12th, 13th, and 16th,2011, was set. [5] The transcripts of the arraignment and other appearances demonstrate that there were various matters which would require atleast two separate voir dires.

At the arraignment hearing, the court determined that only three days would be set to hear and obtainrulings on the voir dire issues with the understanding that more days could be added for the trial proper depending on those rulings. [6] It is clear from the transcripts that, as this was a youth matter, the sitting judge anticipated these dates would be set within afew months. However, the court was unable to offer any dates until October and at a time when defence counsel was not available.

Earlier dates were offered by defence counsel, but those dates could not be accommodated by the court. [7] At the time of the trial confirmation hearing, some of the voir dire issues had been resolved, but there remained one particularlyvexing issue involving the use of witness identifications made from a photopack lineup containing the images of youths which had beentaken from the police computer booking system.

Under a strict reading of the Youth Criminal Justice Act, defence counsel is precludedfrom viewing or using these photographs which in turn raised the possibility that the accused's ability to make full answer and defencewould be compromised. [8] At the end of the day, the Crown determined to proceed in a manner that would not involve leading any identification of thisaccused by anyone who had been shown the photopack lineup.

Regretfully, although both counsel were then in a position to proceed,the agreed facts provides that on December 8th, the trial was adjourned for lack of court time. [9] On December 13th, the current trial dates were set. According to the agreed facts, no earlier dates were offered by the court. The trial estimate of seven days reflects what is required for the trial proper now that the other issues have been resolved. September12th, 2012, was set at that time for this delay application. [10] I will now proceed to analyze the delay in this matter according to the criteria set out in R. v.

Morin, (SCC),[1992] 1 S.C.R. 771. Length of the Delay [11] According to the Crown's analysis of the delay, there are 18 months and one week which arise solely from institutional delay. The defence says the institutional delay is 20 months and one week. Both agree the overall delay is 22 months and one week. On eitheranalysis, this delay clearly merits an inquiry into the reasons for it. Waiver of Time Periods [12] There is no evidence of waiver of any time periods by the accused.

The Crown suggests that the delay between the earliestdates offered in October and the trial date set in December amounts to a waiver of the accused's 11(

b) right. However, on the basis ofthe agreed facts, I find the delay to the first trial date was "acquiescence to the inevitable" and cannot in these circumstances beconstrued as acceptance of the delay as reasonable. Furthermore, counsel is not expected to be in a perpetual state of availability; see R.v. Godin, 2009 SCC 26. The Reasons for the Delay Inherent Time Requirements [13] The matter was arraigned two months after the charge was laid. Both Crown and defence agree this was a reasonable length oftime for such a matter to be processed to the point where counsel would be in a position to set a trial date.

Any inherent time requirementis to be considered neutral in the overall assessment of the reasonableness of the delay.

Actions of the Crown and Defence [14] Neither the Crown nor defence took any actions which contributed to the delay. Limits on Institutional Resources [15] There are significant limits on judicial resources in British Columbia. These issues have now been commented on in severaljudgments dealing with delay, have received ongoing media coverage, and been the subject of reports by this court and latterly by thegovernment. In this matter, there were insufficient judicial resources to provide timely trial dates. I find that 20 months of the delay inthis matter is solely institutional.

Other Reasons for the Delay [16] There are no other reasons for the delay. Prejudice to the Applicant Right to Liberty [17] Mr. G. has been bound by strict bail conditions since his release. He was bound by a house arrest curfew until August 23rd,2012. During that time, he was permitted to be outside his home only for the purposes of attending school, going to his employment, orperforming community work service.

He required written permission from his youth worker to be outside his home for any otherpurpose unless he was in the company of his mother or another adult approved of in advance by his youth worker. [18] On August 23rd, 2012, his curfew was varied to 9:00 p.m. to 6:00 a.m. daily. During these hours, he is not allowed out exceptfor compelling personal, family, or employment reasons and is required to obtain the written permission of his youth worker in advance. He is also bound by other terms, but it is the curfew term of his release that he says has caused him prejudice. Security of the Person [19] Mr.

G. was 16 at the time of the offence. He is now 18. He is involved in a relationship and is now a father to an infant whowas born in May of this year. Although these life events cannot be considered to be prejudice resulting from the delay to trial, theseevents have been impacted by the outstanding charges against him and his restricted curfew. [20] It can be inferred that he has experienced ongoing anxiety, concern, and stigma for a year longer than is suggested by theSupreme Court of Canada to be acceptable in our society; see R. v. Kovacs-Tatar, (ON CA), [2004] O.J. No. 4756(Ont. C.A.) at paragraphs 32 and 33.

He says that he received threats which contributed to a decision by his family to relocate toSquamish. They moved there in early 2012. He now lives with his partner and her mother and their child in Squamish. [21] Mr. G. says he has had difficulty obtaining employment because of his curfew conditions. Jobs he is qualified for often requireflexibility and short notice and, due to his curfew conditions, he was unable to take such employment.

His youth worker has assisted himby finding him a part-time placement in Squamish one day a week. [22] Due to his curfew, he has been socially isolated as his mother and other family members who have been approved of tosupervise him are often not able to do so. He is not permitted to take his child on outings or go out with his partner or go out as a family.

Crown advised the court in argument that due to the serious nature of the allegations, they would have been opposed to any earlierchange in his house arrest curfew and would not have consented to a review in Provincial Court. [23] Judicial consideration has been given to the particular security interests of youths charged with offences in that there is a specialinterest in bringing youths to trial expeditiously. This is one factor to be considered in the overall balancing of interests.

The Crownsuggests the stigma which attaches to youth prosecutions is less severe as their names cannot be published. [24] This is true, but must be balanced against the fact that young persons are also more vulnerable to delay due to their perception oftime and the importance of ensuring a connection is made between their behaviour and the consequences which may attach to thatbehaviour; see R. v. D.S., (SCC), [1992] 2 S.C.R. 161; R. v. H.R., 2005 BCSC 812, paragraphs 44 to 46; R. v. T.R., (ON CA), [2005] 197 O.A.C. 357; and R. v. D.R.C., 2006 BCCA 211 , [2006] B.C.J. No. 947.

Right to a Fair Trial and to Make Full Answer and Defence [25] In an affidavit, Mr. G. says that his memories of the events of the night in question have become hazy. Again, this prejudicecan also be inferred from the length of the delay. Balancing the Interests of the Accused with the Interests of Society [26] In Morin, supra, the Supreme Court of Canada set out guidelines for the assistance of the courts in assessing whether there hasbeen unreasonable delay. These guidelines must be "applied flexibly according to the circumstances of the particular case" (paragraph107).

For adult matters which proceed directly to trial in Provincial Court, it was suggested that eight to 10 months of institutional delaywould be reasonable. [27] The standards of the Provincial Court of British Columbia are that youth matters should be set for trial within four months ofbeing arraigned. The Ontario Court of Appeal in R. v. D.S., supra, suggests that youth matters should be set no later than six monthsafter plea. [28] Here, we have 20 months of institutional delay, nearly double the longer suggested time for adults.

I find that one year of thatdelay is beyond the guidelines for adults and far exceeds an acceptable delay to trial for a youth matter. On all the evidence and by

inference and considering the youth of this accused at the time of the alleged offence, I find the prejudice occasioned by at least a year of institutional delay over the guidelines set out in Morin to be serious. [ 29 ] The offence is a serious one and society has a significant interest in bringing the perpetrator of such terrible violence to justice. The more serious the offence, the greater the societal demand that the accused be brought to trial. [ 30 ] On the other hand, there is also an enhanced societal interest in holding a timely trial in serious charges especially when the accused is a youth.

As was made clear in Morin , supra , at paragraph 48 , "The government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay" in criminal matters being brought to trial. There comes "a point where the court cannot tolerate delay based on the plea of inadequate resources." [ 31 ] I find the delay in this matter to be unreasonable and I direct a stay of proceedings under s. 24(1) of the Charter . [REASONS FOR JUDGMENT CONCLUDED]