R. v. Friesen Date:, 2012 BCPC 33

Citation: R. v. Friesen Date: 20120130 2012 BCPC 0033 File No: 54228 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILFRED RONALD FRIESEN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.A. YOUNG Counsel for the Crown: H.B. Waldock Counsel for the Defendant: P.A. Riddell Place of Hearing: Chilliwack , B.C. Date of Hearing: November 8, 2011 and January 3, 2012 Date of Judgment: January 30, 2012 Introduction [ 1 ] The accused is charged with impaired driving and driving with a blood alcohol level greater than 80 mg% of alcohol in 100 ml of blood, contrary to sections 253 (

a) and (

b) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 [the Code ]. The date of the offence was September 13, 2007. [ 2 ] The accused now argues that his rights under s. 11(

b) of the Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [ Charter ], to be tried within a reasonable time, have been infringed. He seeks a judicial stay of the proceedings under s. 24(1) of the Charter . [ 3 ] This was a lengthy trial, which took several days to complete. The trial commenced on November 18, 2008 and the evidence concluded on February 1, 2011. I gave written reasons on July 19, 2011, and found the accused guilty of both counts.

I entered a judicial stay with respect to Count 2 on the Information. [ 4 ] As I indicated in my reasons, the accused raised a Carter defence, which required the defence to present evidence on more issues than just the accused’s drinking pattern. The defence also challenged the July 2, 2008, amendment to s. 258(1) (c)(iv) of the Code . In his

Constitutional Notice filed at the outset of the trial, the accused sought a remedy under s. 24(1) of the Charter , for a declaration that the amendments to s. 258(1)(c)(iv) and s. 258(1)(d.1) of the Code , as amended, are unconstitutional, given that the amendments in essence eliminated the defence of evidence to the contrary.

The amendments require an accused to show that the approved instrument was malfunctioning or was operated improperly; and that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg% of alcohol in 100 ml of blood. [ 5 ] I found that there was sufficient evidence to prove both Counts 1 and 2, without relying on the presumptions set out in s. 258(1) of the Code .

I also found, given my findings, that there was no need to deal with any potential constitutional issues raised as a result of the amendments to s. 258(1)(c)(iv) of the Code . Chronology [ 6 ] The chronology is set out in the record of proceedings, the affidavit of the accused and exhibits attached thereto, and the transcripts of the many court appearances.

The Crown has also prepared a helpful chart of the chronology which I have used as an aide memoire . [ 7 ] The chronology is as follows: • September 13, 2007 - the investigation occurred, and a promise to appear was issued for November 20, 2007. • November 16, 2007 – the Information was laid. • November 20, 2007 – the accused attended court and adjourned to get counsel. • December 11, 2007 – the accused attended court and advised that Mr.

Riddell was his counsel. • December 18, 2007 – the accused’s non-appearance was noted. • January 8, 2008 – arraignment hearing held – trial date set for November 12, 2008, for one day. • July 2, 2008 – Bill C-2 came into force changing the presumptions in s. 258 of the Code . • September 19, 2008 – defence makes a demand for disclosure which is resisted by the Crown. • September 22, 2008 – trial confirmation hearing adjourned – Ms. Snowdon on behalf of Mr.

Riddell advised the court that the defence had just sent the Crown a request for further disclosure. • October 6, 2008 – trial confirmed despite unresolved disclosures issues. Mr. Lindsey on behalf of the Crown advised that defence had sought disclosure. Mr.

Lindsey advised that he would be sending a letter to defence counsel advising him that the Crown would not provide half of what was sought, because the defence was asking for disclosure of information that was not relevant, in the opinion of the Crown. • October 23, 2008 – the defence announced a Carter defence, and asked for the Crown’s position on the retrospective nature of the amendments. • October 29, 2008 – the Crown responded that Bill C-2 operated retrospectivity.

The defence provided expert notice of a Carter defence, and Notice of a Charter application. • November 7, 2008 – The Crown raised concerns about orderly litigation of issues, and proposed cost-savings for the accused. • November 12, 2008 – the defence advised that he wished to hear only from the civilian witness on the first day of trial. • November 18, 2008 – the trial commenced, and one Crown witness, Dean Kraeling, a truck driver, testified. The defence, on page 1 of the November 18 transcript, advised the court that the case deals with the recent Bill C-2 amendments; and that his intention was to call Mr.

Zamilla to deal with the issue of evidence to the contrary. I advised the defence that the evidence to the contrary cases are being adjourned in the South Fraser Judicial District, awaiting a decision of the Supreme Court of B.C. on the issue of retrospectively. Also, on November 18, 2008, the court advised counsel that the matter could not go beyond noon, because of a full pre-set afternoon regarding other matters.

I sent counsel to obtain a continuation date. • November 18, 2008 - defence counsel, at page 11 of the transcript, advised the court that if the new legislation is ruled to be retrospective, that he would ask for the attendance of the qualified technician in this matter. The Crown advised that the Judicial Case Manager offered April 8, 2009, for continuation, but defence counsel was unavailable on that date. • January 12, 2009 – in R. v. Truong , 2009 BCSC 22 [ Truong ] , Madam Justice Stromberg-Stein held that the Bill C-2 amendments are evidentiary in nature, and become operative immediately upon proclamation.

Thus, the amendments are retrospective in nature. This decision was upheld on November 30, 2010 by the Court of Appeal, in R. v. Truong , 2010 BCCA 536 . • March 4, 2009 – defence counsel supplied a particularized request for disclosure demanding more disclosure. Many of the non- contentious items had already been disclosed. • March 5, 2009 – a pre-trial conference was held, at which time Crown counsel advised that the Crown was resisting some of the defence request for disclosure. The Crown expressed the view that much of the disclosure was irrelevant.

Both counsel referred in passing to the expected decision of R. v. Phagura , [2009] B.C.J. No. 2039 (P.C.) [ Phagura ] . The Crown, on page 4 of the March 5, 2009 transcript, referred to notifying one of the crime lab analysts for May 5, in case the disclosure issue needed to be argued in this matter.

• March 6, 2009 – the defence confirmed receiving some further disclosure. • April 9, 2009 – a pre-trial conference was held. Mr. Riddell advised that counsel will not use the full day on the continuation date of May 5, 2009. Defence advised that the intention was that the Crown would call Cst. McGill, the investigating officer, and complete the Crown case. The defence advised that the matter could be lengthy, and that the trial should be proceeded with on a step by step basis.

I advised that the continuation date would probably be in the fall of 2009, given the press of other cases in the Chilliwack Provincial Court. Defence advised that the disclosure argument will be addressed in other cases, in particular Phagura . Mr. Riddell was also counsel on Phagura . • May 5, 2009 – Cst. Magill testified. The Crown case, but for the disclosure issue, was complete. Counsel discussed the need for a further full day. The continuation date of October 6, 2009 was set, for argument of the disclosure issue.

The Crown submitted on page 57 of the May 5, 2009 transcript that he would try to narrow down the issues, and that much of this might be dealt with in other courts in the interim. The defence, on page 59, advised his intention to file an affidavit dealing with disclosure, and a memorandum from Ms. Mendes, of the Crime Lab. The Crown agreed that this particular approach would be effective. • October 6, 2009 – date set for the disclosure application. • September 30, 2009 – the defence advised that he was awaiting the reasons of Judge Challenger in the case of Phagura .

He had expected the reasons to be given on September 29, 2009, but Judge Challenger reserved until October 6, which was the date set for the continuation on this matter. The defence advised the length of a similar argument in Phagura . The defence requested an adjournment of the October 6, 2009 continuation date. Mr. Riddell advised the court that this delay was thus occasioned as a result of a defence adjournment request. Mr. Riddell advised that there was no urgency to proceed on October 6, given the same issues were being addressed by Judge Challenger. Mr.

Riddell advised that the defence applications could stretch out the trial. The Crown opposed the adjournment of the October 6 date. Adjournment granted, to consider Judge Challenger’s pending reasons in Phagura . • October 20, 2009 – Mr. Riddell advised that the Phagura decision was handed down on October 6, 2009 , and that the Crown on that matter was considering a possible appeal. Defence advised this court that delay would now become an issue , given the existence of the Phagura decision regarding disclosure.

The Crown in Phagura took the position that the decision was wrongly decided and needed to be appealed. On page 2 of the October 20, 2009 transcript, Mr. Riddell gave notice that delay was now a live issue in this proceeding . The defence took no issue with respect to disclosure on this date. • November 24, 2009 – a continuation date was set for May 25, 2010 . Two hours was set aside. The defence did not advise the Judicial Case Manager that the technician, Sgt. Fee, was required for May 25. Sgt.

Fee was not available on that day, as was determined later by the Crown. • December 3, 2009 – the Crown asked whether the accused suffered any special prejudice from this matter. • February 2, 2010 – the Crown alerted the defence that Sgt. Fee was unavailable for May 25, 2010. • March 30, 2010 – an interim appearance. Mr. Riddell advised that the Supreme Court decision in Phagura has not been rendered. Mr. Riddell advised that this decision was required before the next step. Counsel further advised that he anticipated bringing an application to cross-examine the qualified technician.

He confirmed that delay may still be an issue, depending on the appellate reasons in Phagura . • May 4, 2010 – a pre-trial conference was set. The defence advised that he had made a proposal to the Crown to proceed with respect to the impaired only, in order to avoid the difficulties presented by the amendments to the Code , and subsequent litigation. Mr. Riddell advised that the matter was becoming stressful for the accused . A further TCH date was set for May 11, 2010. • May 11, 2010 – the defence advised that the Crown still wished to proceed on Count 2.

The Crown had asked the police to produce the materials that Judge Challenger referred to in Phagura . Defence counsel advised that he intended to bring an application under s. 258(6) of the Code to cross-examine Cpl. Fee, once he had received the requested disclosure regarding the Datamaster. The matter was adjourned to May 17, 2010 to fix a new continuation date. • May 17, 2010 – defence counsel advised that the Crown had sought the Phagura disclosure from the police. He hoped to receive that disclosure in the near future.

He was not in a position to make the application to cross-examine the technician until he saw the further disclosure. The May 25 date was also adjourned as Sgt. Fee was unavailable on that date. Mr. Riddell suggested another date to make his application to cross-examine the technician. The Crown expressed concern about the delay in this matter, given the need to make further disclosure to the defence. The Crown also advised that he had requested the Phagura disclosure from the police. • June 23, 2010 – argument regarding the basis for requiring Sgt. Fee to attend for cross-examination as part of the Crown case.

Written submissions were to be exchanged. • July 2, 2010 – the B.C. Supreme Court decision in Phagura was delivered. • September 8, 2010 – written decision filed denying the defence application to cross-examine Sgt. Fee as part of the Crown case. • September 21, 2010 – dates are fixed. November 15, 2010, for Sgt. Fee’s evidence; and then February 1, 2011, for the remainder of the defence evidence. A full-day is set aside on February 1, 2011. • November 15, 2010 – the Crown closed its case. The defence opened its case by first calling Sgt.

Fee. • February 1, 2011 – the accused testified, as did the defence expert, Wayne Jeffery. Written submissions to be filed. • April 12, 2011 – counsel appeared to address their filed written submissions.

• July 19, 2011 – written decision filed by this court. Accused found guilty of both counts; judicial stay entered on Count 2. The matter was adjourned to August 2, 2011. • August 2, 2011 – a fix date for the delay argument to be made by the defence. • October 24, 2011 – defence counsel filed its Notice of Motion regarding the s. 11(

b) Charter breach. • November 8, 2011 – delay argument made by the defence. Crown filed its written submissions on November 8. A full-day spent by the defence on oral submissions, and filing of the accused’s affidavit. • January 3, 2012 – Crown oral submissions on the delay argument, and reply by the defence. The argument took most of the day to complete. The defence took the position that the period of time from the filing of my reasons on July 19, 2011, to the conclusion of the delay argument can be attributed to the defence. The defence also filed two further exhibits, being the speech delivered by Mr.

Justice Bauman on November 19, 2011 entitled Challenges to the Budget for the Court Services Branch , as well as a report entitled Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources . Accused’s Affidavit [ 8 ] The accused’s affidavit sets out the above chronology for the most part. The accused deposes that initially the only anxiety he faced was being charged with a criminal offence, and facing the mandatory one year driving prohibition.

He anticipated the matter would be resolved in a year from the offence date. [ 9 ] The accused deposes he was self employed as a mechanic in September, 2007. He decided to leave his own business and work for Aggressive Towing, given that if he lost his license he would be laid off and receive EI benefits. His plan was to work with Aggressive Towing until the charges were concluded. He took a substantial drop in income by virtue of working with Aggressive Towing. [ 10 ] The accused decided he would again become self employed operating a business that was registered in May, 2011.

Since returning to self-employment, he has had more than enough work to keep him busy. He has been approached by Russell Equipment to do contract work for them.

He has been unable to commit doing all of the contract work available to him given that a loss of his license for a year would result in a change in the manner of the operation of his business. [ 11 ] The accused deposes that he has needed to hire someone for the past five months, but has not been able to do so because if he will not hire someone if he cannot guarantee their employment, and such guarantee is hinged on the outcome of this trial. [ 12 ] The accused deposes (at para. 11) that the trial matter has been outstanding for 4 years and that the delay has taken a toll on him.

He states that he has to deal with the stress of not knowing what the outcome of the trial is apt to be. He also deposes (at para. 12) that the passage of time has had an adverse effect on his recall of the events of September 17, 2007; and, that as time passed, his recollection of the details of the event faded. In fact, defence counsel pointed out that I found the accused’s evidence to be vague and unreliable, at para. 166 of my July 19, 2011 decision. [ 13 ] The accused’s affidavit included a number of exhibits.

They are as follows: Exhibit A – a letter dated Sept 19, 2008 from defence counsel seeking disclosure of Datamaster records. Such disclosure was sought after the amendments to the Code , which amendments arose after the matter was initially set for trial. Exhibit B – a letter dated October 23, 2008 from defence counsel pointing out that the additional disclosure had not yet been received by the defence. The Carter defence is raised. Counsel also took the position the Code amendments were prospective in nature.

The defence points out that if the Court were to determine that the amendments were retrospective, the defence position was that the material sought in their September 19, 2008 letter was relevant. Exhibit C – on October 28, 2008, the Chilliwack Crown takes the position consistent throughout British Columbia that the amendments are retrospective. The Crown urges the defence application for extensive additional disclosure should be placed before the trial judge. Exhibit D – on October 29, 2008, defence counsel gives Notice of Intention pursuant to s. 657.3(3) of the Code .

Exhibit E – on October 29, 2008, defence counsel advises that it is the defence intention to argue a breach of the accused’s s. 10 Charter rights. Exhibit F – on November 7, 2008, Crown counsel advises its position regarding the Charter challenge, evidence to the contrary and the new presumptions, expense of an expert, and the orderly litigation of the issues. Exhibit G – defence counsel, by way of letter dated Nov 12, 2008, responds to the Crown letter of November 7, 2008. The defence agrees that the civilian witness should testify first, and that the evidence of Cst.

Magill not be heard until the Supreme Court dealt with the restrospectivity v. prospectivity issue regarding the new amendments.

Exhibit H – in a letter dated March 4, 2009, defence counsel seeks a copy of the breath test tickets, alcohol standard change documents, the certificate of analysis, the alcohol standard analytical results, the designation of the qualified technician, the monthly breath test logs, the maintenance logs, the records of all software changes, the proficiency test log, the personal log of the technician, the BAC Datamaster C certification for the qualified technician, and a copy of the video or DVD of the interaction during the taking of the samples.

Exhibit I – in a letter dated March 6, 2009, defence counsel confirms that they have received some of the disclosure referred to in the letter of March 4, 2009. However, the Crown did not give all the disclosure requested by the defence.

Exhibit J – in a letter dated March 31, 2009, the Crown confirms that the breath test tickets have already been disclosed; the alcohol standard change documents have been disclosed for the changes before and after the tests; the certificate of analysis has been disclosed; the alcohol standard analytical results are not disclosed as being irrelevant; the designation of the qualified technician has been disclosed; the monthly breath test logs are not disclosed as being irrelevant; the maintenance logs likewise are not disclosed; the records of all software changes indicate no upgrades to the software; the proficiency test log is not disclosed but further clarification requested; the personal log is not disclosed; the Datamaster C Certification of the technician has been disclosed; Cpl.

Fee’s course materials are available at the B.C. Law Library; and the video is not disclosed as none was taken. Exhibit M – in a letter dated April 23, 2009, defence counsel in essence continues to pursue further disclosure of the documents requested. Exhibit N – September 11, 2009, defence counsel by letter advises the Crown that they are filing a Notice of Motion seeking disclosure; and that such an application was made before Judge Challenger in Phagura , which decision was slated to be handed down on September 29, 2009.

Exhibit O – defence counsel by letter advises the Crown that the Phagura decision was adjourned to October 6, 2009, and for that reason, this matter set for October 6, 2009 should be adjourned pending the reasons of Judge Challenger. Exhibit P – defence counsel by letter advises the Crown that further to the defence disclosure dated March 4, 2009, the defence draws to the Crown attention the decision of Phagura with respect to the BAC Datamaster C records, which should be disclosed upon request by the defence.

Exhibit Q – the Crown writes a letter dated December 3, 2009, asking if there is any special prejudice to the accused which the Crown office should consider in determining how to proceed. Exhibit R – the defence writes a letter dated December 7, 2009 to the Crown advising that he hopes that the

Summary Conviction Appeal on Phagura would be heard and determined by the continuation date of May 25, 2010. Exhibit S – the Crown advises the defence that the qualified technician is not available for May 25, 2010. The Supreme Court decision in Phagura is anticipated. Exhibit T – the defence by way of letter dated March 3, 2010 advises that he intends to make application to cross-examine Cpl. Fee pursuant to s. 258(6) of the Code , and that Phagura might be handed down by the date of the pre-trial conference set on March 30, 2010.

Exhibit U – by way of a Crown counsel disclosure notice, on May 26, 2010, the Crown disclosed the following information, which up to that date had not been disclosed. That disclosure included:

a) the Davtech maintenance documentation for June 28, 2007;

b) the monthly log, for the period of June to September, 2007;

c) the external standard replacement documentation; and

d) a memo dated May 20, 2010. The defence takes the position that this late disclosure made on May 26, 2010 is a key component of the defence position regarding delay. The defence position is that the Crown throughout the Province took the position such disclosure would not be given until after the Phagura appeal was decided by the Supreme Court. Exhibit V – further correspondence from the Crown. Exhibit W – by way of letter dated September 16, 2010, defence counsel advices the Crown that they will wish to call Sgt. Fee as part of the defence case.

The defence points out that if the court accepts the evidence of the accused, and finds that it has raised a doubt with respect to Count 1, then the intention of the defence would be to embark upon a constitutional challenge regarding Count 2. Defence Submissions [ 14 ] In his submissions, defence counsel submits that when this matter began it was a straight forward one day trial. Then Parliament amended the legislation regarding evidence to the contrary on July 2, 2008, requiring the defence to deal with a number of new issues, one of which at the outset was whether or not the amendment was retrospective or not.

The parties needed an answer to the issue of retrospectivity before proceeding further. Then a further issue arose with respect to disclosure, which issue was ultimately resolved on July 2, 2010, by the Supreme Court in Phagura , [2010] B.C.J. No.1328 . The appeal in Phagura was heard on January 29, 2010.

The Crown chose not to give the requested disclosure until May 26, 2010, when it became apparent to the Crown that delay was becoming an issue in this matter. [ 15 ] The defence argues that a simple case became complicated by reason of the change in the legislation, and that the defence disclosure request was not responded to until late May, 2010, resulting in a lengthy delay that can only be characterized as both institutional and Crown generated. [ 16 ] The time period from the date of the swearing of the Information to the projected conclusion of this matter in January 2012, is over 4 years.

There is an intake period from November 20, 2007 to January 8, 2008, being a period of one-and one-half months. There is a further period of 10 months and 10 days from January 8, 2008 to the first trial date of November 18, 2008. [ 17 ] On November 18, 2008, the issue of retrospectivity was not argued. I indicated that while a full day was set for trial, there was not time available past noon that day. However, defence and Crown had intended only to deal with the civilian witness on that day.

[18] On September 19, 2008, a request was made for disclosure of the BAC Datamaster C records. That request was renewed onMarch 4, 2009, and again on October 8, 2009. The disclosure was not made until May 26, 2010, well over one year after the renewedrequest. In essence, the accused was deprived during the transition period of an opportunity to obtain evidence needed to challenge theintegrity of the blood alcohol readings. [19] Counsel submits that much of the delay in this matter has been occasioned by the amendments to the Code, and resultinglitigation.

The position of the defence is that if more timely disclosure had been made by the Crown, pursuant to the Provincial Courtdecision in Phagura, that the matter could have been concluded sooner. The Crown chose to withhold disclosure until May, 2010. [20] The defence thus argues that the delay in disclosure must be considered in conjunction with institutional delay. The defencesubmits that the trial would not have concluded on November 18, 2008.

Retrospectivity of the legislation was still a live issue at thattime, and not resolved until the reasons in Truong were delivered in January, 2009. [21] The earliest date for the continuation was May 5, 2009. Thus, counsel submits, absent any constitutional or disclosure issues, thismatter would have taken from January 8, 2008 to May 5, 2009 to conclude.

This was a period of 16 months, which the defenceacknowledges is at the lower end of the range for delay. [22] The defence goes on to submit that due to the Crown’s position regarding disclosure of the BAC Datamaster C records, the trialcould not have concluded prior to May 26, 2010, when the Crown finally disclosed records which had been requested as early asSeptember, 2008, and which had been requested in somewhat different form on March 4, 2009 (prior to the continuation date of May 5,2009).

The defence points out that the period of time from May 5, 2009, to the disclosure on May 26, 2010, is one year and 21 days. [23] The defence thus sums up the delay as follows: 1. Intake delay – November 16, 2007 to January 8, 2008 – a period of seven weeks. 2. Institutional delay – January 8, 2008 to November 18, 2008, a period of 10 months. Thereafter, the period of November 18, 2008to the continuation date of May 5, 2009, is a period of six months which can be characterized as institutional delay. The total period isthus 16 months to that point in time. 3.

May 5, 2009 to October 6, 2009 is a period of 5 months, for a total of 21 months institutional delay. Defence advises that October6, 2009 was chosen as the date for the disclosure application to accommodate the Crown witness, B. Image, from the Crime Lab.However, the October 6 date was adjourned to await Judge Challenger’s decision in Phagura. 4. The period from October 6, 2009, and at the very least October 20, 2009, to the continuation date of May 25, 2010 is a furtherperiod of about seven months. That date was adjourned as Sgt. Fee was unavailable on May 25, 2010.

However, the Phagura disclosurewas not given to the defence until May 26 or 27, 2010, so the defence would not have been in a position to proceed on May 25, 2010 inany event. The defence characterizes the period from October 6, 2009, and/or October 20, 2009 to May 25, 2010, as both institutionaland Crown generated. The period to May 25, thus being about 28 months. 5. The defence further argues that the period from September 8, 2010, being the date of my written decision denying the defenceapplication to cross-examine Sgt.

Fee as part of the Crown case, to the continuation dates of November 15, 2010, and then February 1,2011, is a further period of institutional delay of almost five months.

The defence submits the total period of institutional delay to thatpoint is about 33 months. [24] Thus, while the overall time to complete this matter is now over four years, the defence submits that the total period ofinstitutional and Crown generated delay is a approximately a period of 33 months, and that such period is unreasonable in all thecircumstances. [25] The defence does acknowledge that this delay argument could have been made earlier in the year of 2011, and thus takes noposition with respect to the period from July 19, 2011 (the date of my Reasons) to the conclusion of this application. [26] Furthermore, the defence submits that the adverse finding of credibility made against the accused is an assessment of the riskthat can occur when a trial is delayed as long as three years.

Counsel invites the court to find that in addition to actual prejudice, the courtis also able to infer prejudice given the period of delay. While the accused has not suffered an infringement of his liberty interest, giventhat he was not subject to bail conditions, there is evidence set out in his affidavit of impairment of both his security interest and hisability to make full answer and defence. [27] Lastly, the defence cited the following decisions: • R. v. Morin, (SCC), [1992] 1 S.C.R. 771 (S.C.C.)[Morin] – an 8-to-10-month guideline for institutional delay • R. v.

Ark, 2010 BCPC 63 – stay granted for a 20-month delay • R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26 [Godin] – stay granted after a 30-month delay • R. v. Pfaller, [2009] O.J. No. 3401 (Ont. C.J.) – stay granted after a 20-month delay • R. v. Ellis, [2011] B.C.J. No. 1819 (S.C.) – a stay granted after a 31-month delay • R. v. Pearson, [2009] B.C.J. No 2757 (S.C.) – a stay granted after a 35-month delay • R. v. Ayers, [2010] B.C.J. No. 1374 (P.C.) – a stay granted after a 20-month delay • R. v. Brighton, [2010] B.C.J. No. 2746 (P.C.) – a stay granted after a 12-to-14-month delay

• R. v. Minhas, [2011] B.C.J. No. 1092 (P.C.) – a stay granted after a 19-month delay • R. v. Moskal, 2010 BCPC 294 , [2010] B.C.J. No. 2308 (P.C.) – a stay granted after a 25-month delay • R. v. Matson, [2010] B.C.J. No. 2309 (P.C.) – a stay granted after a 19-month delay • R. v. Hellsten, Surrey Registry #169115-1, November 16, 2010 – a stay granted after a 27-month delay • R. v. Hammer, [2011] B.C.J. No. 1726 (P.C.) [Hammer] – a stay granted. The total delay to the conclusion of the trial was 42.5months; the bulk of the delay, 21.5 months, was due to a lack of institutional resources.

The accused had been found guilty of possessionof cocaine for the purpose of trafficking • R. v. Archibald, [2010] B.C.J. No. 2206 (P.C.) – a stay granted. The trial delay was 36 months since the information was sworn [28] The defence has also drawn my attention to the two Phagura decisions, being: • R. v. Phagura, [2009] B.C.J. No. 2039 (P.C.) • R. v. Phagura, [2010] B.C.J. No. 1328 [S.C.] [29] In conclusion, defence counsel argues that the most significant reason for the delay was the policy of the Criminal Justice Branchto resist the Datamaster disclosure that the defence here had requested.

The defence submits that was a tactical position taken by theCrown, given their position in the appeal of Phagura. The policy resulted in the Crown giving late disclosure in May, 2010. [30] Defence counsel also points out that the right of disclosure of all relevant material has a broad scope at the early stage of trialpreparation. Counsel drew my attention to para. 50 of Mr. Justice Truscott’s reasons in Phagura. [31] Defence counsel does concede that some delay can be laid at the feet of the defence given the complexity of the defence beingpresented.

The Code was amended, and the defence was required to call evidence to establish the three factors set out in s. 258(1)(c)(iv)of the Code. However, even taking into account any defence generated delay, counsel submits that the period of delay which can becharacterized as institutional and Crown generated, is still in the range of about 33 months, and thus unreasonable. [32] Thus, defence submits, there is evidence of a breach of the accused’s s. 11(

b) Charter rights, and that pursuant to s. 24(1) of theCharter, the only just remedy in all the circumstances is a judicial stay of proceedings. Crown Submissions [33] The Crown submits that the defence was complicated, when the Crown’s case was simple. The accused now complains aboutdelay, occasioned largely by the approach he chose to take. The Crown submits that this is not a trial to which the ordinary 8-10 monthestimates of Morin or Askov apply. [34] The Crown submits that the clock started to run on January 8, 2008, when the trial date was set. The Court determined guilt onJuly 19, 2011.

The Court would have sentenced the accused on that day, if it had not been for this delay application. The delay clockstopped on that date. Accordingly, the time period is 3.5 years. [35] The Crown never sought an adjournment, and was ready to proceed on every day that evidence was heard, or arguments were tobe made. The Crown finished its case on May 5, 2009. [36] The accused pursued an ambitious defence, involving several applications. Those applications are referred to in the Crown’swritten submissions.

They include the prospective v. retrospective application of the July 2, 2008 Bill C-2 amendments; the defenceexpert evidence for a Carter defence; cross-examination of the technician; exhaustive disclosure and the constitutionality of the Bill C-2amendments. [37] It became apparent in November 2008 that the case would take longer than the time set. The Crown submits that the accusedchose to litigate his ambitious defence on a “step-by-step” basis, fixing continuation dates for the next step only when the step beforewas concluded.

The Crown submits there was nothing unreasonable about the defence proceeding in this fashion. The approachpermitted counsel to prepare argument, but slowed the proceedings considerably because each step required a new hearing date. Theaccused gave up the opportunity to fix all the hearing dates at once, which would have given him a faster completion than whatoccurred. The Judicial Case Manager (Chilliwack) set five dates for full-day hearings, and several more for partial days. [38] The Crown cited R. v. Godin, supra.

Cromwell J. said at para. 23 that defence counsel need not hold themselves in a state of“perpetual availability”. On the other hand, the Crown submits that continuation dates are a “precious commodity”, and that the casemanager does not have an infinite supply. The accused could have booked several dates at once, which he chose not to do, other thanwhen booking November 15, 2010 and February 1, 2011. [39] Furthermore, the delay occasioned by the extensive disclosure demands by the defence extended the proceedings from May 5,2009 to May 17, 2010.

The Crown submits that the disclosure issue increased the complexity of the case. The defence chose to await theruling on this issue in Phagura, both at the Provincial Court and the Supreme Court level. The Crown submits that the disclosure issuemight have been resolved faster had this court dealt with the issue on October 6, 2009, rather than awaiting the outcome in Phagura. [40] The Crown submits that the defence caused the delay, as it was the defence which sought some disclosure which was notrelevant. The Crown did not concede that the material requested was relevant.

However, the Crown acknowledges that the disputeregarding disclosure did hold up the trial, and that it took several months for the Crown to respond to the disclosure request after thePhagura case was argued in the Supreme Court. The Crown waited until May 26, 2010, to deliver the disclosure sought by the defence.In oral submissions, the Crown did concede he could have given the requested disclosure in late January, 2010, after the Phagura appeal

was heard. [41] The Crown argues that the defence insisted on disclosure of quality assurance documentation, but the defence expert,Mr. Jeffrey, never even looked at the quality assurance documentation in his evidence. Thus, the Crown argues, none of the disputedmaterial was relevant. [42] The Crown also submits that the trial judge and the appellate court judge in Phagura considered the same expert advice, butcame to different conclusions about relevance of the material. Thus, the Crown argues, the answer to the disclosure question was notknown at the time the delay was incurred.

The attribution of delay cannot be made on the basis of how the question was ultimatelyanswered. [43] The main thrust of the Crown submission is that this court should not have awaited the outcome in Phagura, but rather pressedon without the benefit of appellate authority. The Crown speculates that this court might well have determined the answer regardingdisclosure before May 26, 2010, and certainly before July 2, 2010, when the Supreme Court varied the trial decision in Phagura. Theaccused preferred to wait for the Phagura decision to answer the questions regarding disclosure.

However, the Crown does concede thatthe trial judge’s decision in Phagura did come faster than this court could have answered the question. [44] The Crown cites R. v. Steadman, [2008] 2010 CarswellBC 1824 and R. v. Khan [2011] CarswellOnt 1288 [Khan], on the issueof delay in complex cases. In R. v. B.(J.G.), [1992] CarswellOnt 776 (Ont. C.A.), affirmed (SCC), [1993] 3 S.C.R. 643,the defence delayed the proceedings by applying for production of third party records in a case of gross indeceny, indecent assault andsexual intercourse with a female under the age of 14.

The Crown case was simple, but the defence case was not. There was a period of 8months institutional delay. The accused did not seek an early determination of the charges. His actions reflected adversely on anyallegation of prejudice flowing from the delay. [45] The Crown argues that the time between May 25, 2010 (the date set for continuation) and the date of September 8, 2010, whenthe court gave its decision on the defence application to cross-examine the technician, Sgt. Fee, should not be attributed to the Crown. [46] The Crown acknowledges that after September 8, 2010, the defence fixed an hour for Sgt.

Fee to testify on November 15, 2010and a full day on February 1, 2011 for the defence case. The Crown argues that this delay was a consequence of the step by stepapproach taken by the defence. [47] The defence then asked this court to make factual findings so that he could launch a constitutional attack on the newpresumptions in Bill C-2. The Crown submits that this court had good reason to request written submissions and to reserve reasons. Thusthe completion of the trial was on July 19, 2011. [48] The accused made no claim that his liberty was prejudiced by the delay.

Also, in November 2009, the Crown inquired aboutspecial hardships on the accused. And when the defence asked the Crown to exercise it’s discretion by staying Count 2, and proceedingon Count 1 alone, the defence did not disclose any details of personal prejudice. Only after the constitutional arguments evaporated, didthe accused then reveal the nature of the personal hardships occasioned by the delay. The Crown argues that the defence should haverevealed those hardships much earlier than it did. [49] Lastly, the Crown submits that the delay did not prejudice the accused’s ability to make full answer and defence.

The Crownsubmits that the accused’s hazy memory of his drinking pattern arose not by the passage of time, but because of his “divided attention”between his work and drinking. The Crown relies on Mr. Jeffrey’s evidence to argue that the accused never knew how much he drankbefore he drove, and that probably the passage of time had no effect on the accused’s memory of his drinking pattern. [50] In conclusion, the Crown submits the delay application should be dismissed, given the overall complexity of the case, and thestep by step approach taken by the defence. The Crown case was concluded on May 5, 2009.

The Crown submits that after that date,most of the delay can be laid at the feet of the defence. [51] The Crown cited the following authorities. They are: R. v. Ghavami, [2010] BCCA 126 [Ghavami] - the accused was charged with conspiracy to produce and distribute methamphetamine.The time between the Indictment and the anticipated completion of the trial was 44 months. The accused spent the majority of the timeon strict bail conditions. The prosecution was complex, arising from a difficult investigation, alleging very serious misconduct.

TheCourt of Appeal set aside the judicial stay of proceedings, and directed a new trial. R. v. Steadman, [2008] CarswellBC 2679 [Steadman] – Barrow J. dismissed the delay application; appealed. Steadman is a decision ofthe British Columbia Court of Appeal. In Steadman, the accused was charged with being an accessory after the fact to murder. Theoverall delay of five years was lengthy and none was the result of limitations on institutional resources. Ten months of delay was theaccused’s responsibility. The effective period of delay was 50 months and the first three years of delay was reasonable.

The defenceappeal was dismissed. R . v. Khan, supra – involved a large, complex gang investigation in June 2006. The accused’s application for a stay was granted. Thedelay was 41 months. The Ontario Court of Appeal found that viewed cumulatively, the institutional delay of 11.5 months was less thanthe overall Morin guideline of 14 to 18 months for a two-stage process. Delay was due to initial complexity of the prosecution andsubsequent mistrial. None of the delay was caused by the Crown. R. v. B.(J.G.), supra – noted above.

Application of the Morin Framework [52] In Morin, the Supreme Court of Canada described the framework to determine whether delay has become unreasonable byconsidering four factors. They are:

1. The length of the delay 2. Waiver of time periods 3. Reasons for the delay a. Inherent time requirements b. Actions of the accused c. Actions of the Crown d. Limits on institutional resources e. Other reasons for delay f. Prejudice to the accused 1. Length of the Delay [ 53 ] The length of the delay from the swearing of the Information to the conclusion of the trial was three years and eight months, or 44 months. At the outset, counsel did not underestimate the amount of time needed for trial. The estimate was one day. [ 54 ] The trial date was set for November 12, 2008.

However, Bill C-2 came into force on July 2, 2008, changing the presumptions in s. 258 of the Code . From that point onwards, this trial became caught in the ripple effect caused by the amendments to the Code . The defence announced a Carter defence on October 23, 2008. [ 55 ] The initial issue was whether or not the amendments were retrospective in nature. That issue was determined in R. v. Truong , supra , which was decided by the Supreme Court on January 12, 2009, after the initial trial date in this matter. 2. Waiver of Time Periods [ 56 ] There is waiver by the defence in this case.

The defence waives the period from July 19, 2011, when I filed my written decision, to the conclusion of the delay application. That period is about 6.5 months, which lies outside the initial 44 months. The defence also waives the period of June 23, 2010 to September 8, 2010. 3. Reasons for the Delay a. Inherent Time Requirements [ 57 ] The intake delay from November 16, 2007 to the arraignment hearing on January 8, 2008 was a period of seven weeks. The date from the swearing of the Information on November 16, 2007 to the one day trial set November 18, 2008 was 12 months.

That length of time, although it was in excess of the Morin guidelines, is not unusual for the Provincial Court in British Columbia given the resource shortages. [ 58 ] Initially there was no level of complexity in this case. However, that level of complexity increased considerably with the Bill C-2 amendments to the Code which arose on July 2, 2008. The trial estimate of one day was realistic, but ceased to be so. I find the initial inherent time requirements in this case to be seven weeks. b.

Actions of the Accused [ 59 ] The Crown contends there are considerable delays attributable to the defence raising a Carter defence, and choosing to take a step by step approach to the defence. However, I do not attribute the adjournment from November 18, 2008 to the continuation date of May 5, 2009, to the defence. The parties and this court were awaiting the appellate decision in R. v. Truong , supra , which was handed down by the Supreme Court on January 12, 2009. [ 60 ] The Crown finished its case on May 5, 2009. Cst. Magill testified.

However, the Crown was aware of the need for argument of the disclosure issue. A continuation date was set of October 6, 2008 in the hopes that the decision of Judge Challenger in Phagura would be known by that date. That continuation date was adjourned by me, to consider Judge Challenger’s reasons in Phagura . That decision was handed down on October 6, 2008. [ 61 ] The Crown in Phagura advised that the decision was wrongly decided, and needed to be appealed. It was on October 20, 2009 that defence counsel gave notice that delay was a live issue in this trial.

Defence counsel had already supplied a request for disclosure in March, 2009. [ 62 ] A continuation date was set for May 25, 2010, for the defence to cross-examine Sgt. Fee. However, the defence did not receive the requested disclosure. The Crown did give disclosure on May 26, 2010. The May 25, 2010 continuation date was adjourned, because Sgt. Fee was unavailable. However, the defence would not have been able to proceed with the cross-examination on May 25, 2010 in any event, in light of late disclosure.

I note that it was on May 17, 2010 that the Crown advised he had requested the Phagura disclosure from the police. [ 63 ] It is apparent from this history that the delay was occasioned, not by the defence, but by the Crown failing to give the disclosure sought by the defence, in light of Judge Challenger’s decision in Phagura . [ 64 ] Ultimately, argument was held on June 23, 2010 regarding the basis for requiring Sgt. Fee to attend for cross-examination. I gave

my written decision on September 8, 2010. The defence waives the period of June 23, 2010 to September 8, 2010.

In my view, the further period from September 21, 2010 to the conclusion of the defence evidence on February 1, 2011, cannot be attributed to the defence. [ 65 ] The defence does take responsibility for the period from July, 2011 to January, 2012 in order to make this delay application. [ 66 ] The total delay I attribute to the defence is the period from July 2011 to January 2012, being a period of six months, which falls outside the contested period of delay of 44 months, as well as the period from June 23, 2010 to September 8, 2010, being a period of 2.5 months.

It was on September 8, 2010 that I gave written reasons denying the defence application to cross-examine Sgt. Fee as part of the Crown case. c. Actions of the Crown [ 67 ] The Crown noted it never applied for an adjournment in this case. However, the Crown acknowledged the need for the retrospective issue to be determined, as well as the need for resolution of the disclosure issues raised by the defence in this matter and Phagura . Defence counsel here was also defence counsel on the Phagura trial. [ 68 ] In my view, the Crown cannot escape from some responsibility for delay.

The Crown could well have provided disclosure to the defence after Judge Challenger handed down her Reasons in Phagura on October 6, 2009. The Crown purposely chose not to do so, until the continuation date of May 25, 2010 was looming. The Crown disclosure on May 26, 2010 was also well after the argument had been heard in the Supreme Court on Phagura . The Crown elected to wait for appellate authority.

Although the defence was not in a position to proceed on May 25, 2010, the disclosure was not in defence hands by that date in any event. [ 69 ] Defence had alerted the Crown on October 20, 2009, that delay was a live issue, yet the Crown chose to wait in giving disclosure, knowing that such late disclosure might well result in a further adjournment. [ 70 ] Although the Crown has pointed out the complexity in the defence, I find that a period of more than 12 months can be attributed to the actions of the Crown.

That is the period from March 4, 2009, when the defence supplied a particularized request seeking further disclosure, to the date of the actual disclosure on May 26, 2010. If I am in error with respect to that time frame, it seems to me that the period from October 6, 2009 (the date of Judge Challenger’s reasons in Phagura ), to the eventual disclosure on May 26, 2010, being a period of at least 7.5 months, can be attributed to the actions of the Crown. d. Limitations on Institutional Resources [ 71 ] As A.C.J.

Brecknell noted in Hammer , at para. 81 of his Reasons, the day to day operations of the Provincial Court does face unprecedented challenges, as set out in the recent report entitled Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources . The Provincial Court in Chilliwack faces a backlog of cases similar to that in the Surrey Provincial Court. It is often difficult to find timely continuation dates with respect to both criminal and family trials.

That difficulty was apparent throughout the continuation date fixing that occurred in this matter. [ 72 ] The institutional delay can be attributed as follows: January 8, 2008 to the initial trial date of November 18, 2008, being a period of 10 months. Thereafter, the period of November 18, 2008 to the continuation date of May 5, 2009 is about six months. That combined period is approximately 16 months. Then the period from May 5, 2009 to the next continuation date of October 6, 2009 is a period of five months, for a total of 21 months.

The period from October 6, 2009 to the further continuation date of May 25, 2010 is seven months. That period being a total of 28 months of delay. Lastly, September 8, 2010, being the date of my written decision denying the defence application to cross-examine Sgt. Fee as part of the Crown case, to the continuation dates of November 15, 2010 and February 1, 2011, is a further period of delay of almost 5 months. The total is thus approximately 33 months.

The time from the closure of the defence case, to argument and final reasons is an additional period of 5.5 months. [ 73 ] I am prepared to find that the total period of delay which can be attributed to limits on institutional resources amounts to approximately 33 months. e. Other reasons for Delay [ 74 ] I am mindful of the level of complexity that arose in this matter, given the Bill C-2 amendments to the Code after the Information was sworn. Firstly, the issue of the retrospective nature of the amendments needed to be determined, and was so on January 12, 2009, in Truong .

Secondly, further issues of disclosure needed to be determined, and were so determined in Phagura on October 6, 2009 in the Provincial Court, and later in the Supreme Court on July 2, 2010. The subsequent Crown delay in disclosure appears to have been a policy decision, until the eventual disclosure was given to the defence in late May, 2010. I am further mindful that while the defence may not have used all the information disclosed, there is a broad scope to disclosure at the early stage of trial preparation. 4. Prejudice to the Accused a. Liberty [ 75 ] There was minimal interference with the accused’s liberty.

There were no onerous bail conditions. b. Right to make full answer and defence [ 76 ] I do not find that the delay affected the accused’s ability to make full answer and defence. The accused would have provided instructions to counsel prior to defence counsel advising that he was prepared for the first trial date set in November, 2008. While I found the accused’s evidence to be vague and unreliable, I am not prepared to attribute the difficulties in his evidence to the passage of time. Other reasons may well have been at play. c. Security of the person

[77] As A.C.J. Brecknell stated at para. 94 of Hammer, in quoting Lamer J. in R. v. Mills, (SCC), [1986] 1 S.C.R.863 (S.C.C.), there are a number of factors for the court to consider on the issue of prejudice and security of the person. Stress andanxiety can result from a multitude of factors, including possibly disruption of work, legal costs, uncertainty as to the outcome andsanction. [78] I am mindful in assessing security of the person of the contents of the accused’s affidavit. The accused anticipated the matterwould be resolved in a year from the offence date.

He decided to work for Aggressive Towing, in part due to the charges, andexperienced a drop in income. More recently, he has been unable to commit to doing all of the contract work available to him, given thatthe possible loss of his license for a year would result in a change in the manner of the operation of his business. [79] The accused further deposed that the trial has been outstanding for four years, and the delay has taken a toll on him.

He has hadto deal with the stress of not knowing what the outcome of the trial might be. [80] I am also mindful that the charges here are that of impaired driving and driving while over.08, not a complicated drug trial oraccessory after the fact to murder, as was the case in Ghavami and Steadman. [81] Having considered the contents of the accused’s affidavit in light of the history of this matter, I am satisfied that the accused hasdemonstrated that he has suffered sufficient prejudice of the nature and duration to require judicial intervention.

The inherent prejudice ofthe almost 3.5 year delay to the date of trial conclusion in July, 2011 also requires consideration. Conclusion [82] In conclusion, I find that there has been institutional or systemic delay of approximately 33 months, none of which time waswaived by the accused. Furthermore, the overall length of trial delay also justifies an inquiry into its reasonableness. [83] I further find that the defence did make an appropriate request for disclosure as a result of the initial Phagura decision, and thatthe Crown did not respond to that request in a timely fashion.

If it had, an earlier date may well have been found, especially in light ofthe defence already having given notice on October 20, 2009 that delay had become a live issue. [84] The delay, when looked at in total, or when considered within the factors described by Morin, leads me to conclude that theaccused is entitled to a judicial stay of proceedings. [85] Accordingly, I grant the accused a judicial stay of proceedings on Information 54228-1. _____________________ W.A. Young Provincial Court Judge