R. v. Tran and Tran Date:, 2013 BCPC 286

Citation: R. v. Tran and Tran Date: 20130525 2013 BCPC 0286 File No: 56061-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LINH NBGOC TRAN and MINH QUY TRAN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Crown: J.M. Le Dressay Counsel for the Accused: O.A. Snowdon Place of Hearing: Chilliwack , B.C. Dates of Hearing: February 18, 19 and April 25, 2013 Date of Judgment: May 25, 2013

[ 1 ] THE COURT : The accused are charged with production of marihuana, possession for the purposes of trafficking marihuana, and theft of power. [ 2 ] The accused apply for the remedy of a judicial stay of proceedings pursuant to s. 24(1) of the Charter , arguing that their right to be tried within a reasonable time as found under s. 11(

b) of the Charter has been breached. [ 3 ] The Crown and Defence provided thorough written and oral submissions. [ 4 ] The Defence calculates the delay at 32 months and two weeks from the time the Information was laid to the start of this hearing on February 18th, 2013.

They argue I should also take into consideration the time to the continuation of their hearing on April 25 th , and that this matter may take further time to complete the trial proper. [ 5 ] The Defence argues the delay has been caused by both institutional reasons and the actions of the Crown. [ 6 ] The Crown argues that the time elapsed is not unreasonable and there has been no breach of the accuseds’ rights. Background Facts [ 7 ] The accused were both arrested on November 12th, 2009 and released on a promise to appear for January 4th, 2010.

Charges were not approved until June 3rd, 2010 when the Information was sworn. Counsel for the accused made a first appearance on July 20th, 2010. The accused made a further 20 appearances before a trial was set on May 9, 2011. [ 8 ] The trial was set for two days for June 18 and 19 of 2012. A trial confirmation hearing occurred on May 8 and 17, 2012 at which time counsel was advised by the judicial case manager that court time for trial was an issue. The trial was confirmed and the accused appeared on the first day of trial.

Counsel was advised that there was no time available on the first day but that there was time on the second day. [ 9 ] The Court was advised that the matter would start with a disclosure application by the accused. Crown submitted that the application may be moot as they believed that the disclosure would be forthcoming soon. The Defence took the reasonable position that disclosure was required before the trial commenced. [ 10 ] After further submissions the Court concluded that it would not be appropriate to proceed with the trial and adjourned the parties to set new trial dates.

Counsel for Crown and Defence were asked by the Court at this time if two days was still sufficient and counsel agreed that it was. Counsel were adjourned to the JCM and rescheduled the trial for February 18 and 19, 2013 with a trial confirmation hearing on November 19, 2012. [ 11 ] At the commencement of the second trial dates, the accused made an application for the disclosure of material that they originally sought at the time of the first trial dates.

As noted above, Crown's position at the time of the first trial date was that the application for this material could be moot as they were expecting to soon be able to forward this material to the Defence. [ 12 ] Crown's position at the commencement of the voir dire at the start of the second trial however changed to one that the material was irrelevant and should not be disclosed. [ 13 ] The subject of this disclosure involved the theft of exhibits from the Chilliwack RCMP Detachment secure exhibit locker.

I was advised that the police had performed an audit of the exhibit locker and found monetary exhibits from this file, as well as many others, had gone missing. As a result an investigation occurred.

At the time of the voir dire the file was still with the provincial Crown for charge approval. [ 14 ] During the voir dire , the federal Crown resiled from the position of non-disclosure and agreed to the release of documents on the accused entering into an agreement with terms restricting the time and release of the documents. [ 15 ] A representative of the provincial Crown appeared during the voir dire and advised a decision had been made approving charges, but the review and copying of documents for disclosure was taking an inordinate amount of time.

Their position was that this matter should not be disclosed to the accused until charges had been formally sworn. They expected this to occur shortly and in fact has now taken place. [ 16 ] The second application of the Defence was the application now before me. On this application, affidavits sworn by the accused were filed and the accused were called to testify for the purposes of cross-examination.

Both affidavits and cross-examination predominantly related to the issue of prejudice. [ 17 ] The affidavit of Minh Quy Tran states that the delay and uncertainty over the last three years has caused him, his wife, and their two children significant stress and anxiety and says that after the first trial dates did not proceed, his relationship with his wife deteriorated to the point where they separated in August of 2012. He notes that the Crown is asking for long jail sentences for both he and his wife. He says both parents provide care to their children.

He says that the delay has also increased his legal costs which has increased his stress. He says that the delay has also affected his memory. [ 18 ] The affidavit of Linh Ngoc Tran is surprisingly similar to that of her husband's. It varies in that she refers to a significant deterioration in her health requiring an attendance at hospital due to internal blood loss and weakness.

Her doctor advised that the blood loss was likely due to an ulcer brought on by stress. [ 19 ] The applicants argue that the delay in setting the initial trial dates was the fault of the Crown who failed to satisfy a specific disclosure request made by the applicants on October 1, 2010 until April 15th of 2011. The subject of this disclosure request was B.C.

Hydro investigation files with relation to the subject property. I am advised that these files were relevant to the Defence of the accusedas they potentially contained information with respect to whether B.C. Hydro or its employees or agents could be considered policeagents in breach of the Charter rights of the accused (see R. v. Pham, [2002] B.C.J. No. 2054 (C.A.)). These files were requested by theCrown following the request by Defence. Law [20] The applicants rely upon the following cases which I have reviewed: 1. R. v. Moran, (SCC), [1992] 1 S.C.R. 771 2. R. v. Askov, (SCC), [1990] S.C.J. No. 106 3. R. v.

Lam, 2012 BCPC 385 , 2012 BCPC 0385 4. R. v. Ghislieri, [2010] B.C.J. No. 2516 5. R. v. Nelson, 2011 BCPC 401 6. R. v. Ark, [2010] B.C.J. No. 959 7. R. v. Ayres, [2010] B.C.J. No. 1374 8. R. v. Saeed, 2012 BCPC 178 , 2012 BCPC 0178. [21] The leading case on delay is R. v. Moran, (SCC), [1992] S.C.J. No. 25.

Justice Sopinka for the majority inMoran sets out that to determine whether delay has been unreasonable the Court must not apply a mathematical formula but an approachthat weighs the following four factors: (see paras. 87 to 88) 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. [22] Sopinka J. stated in Moran, supra, at para. 30 that there is also a societal interest in having matters dealt with by the courts onthe merits of the case. The societal interest must be weighed along with the other four factors in assessing whether the delay has beenunreasonable. The societal interest increases as the offence increases in seriousness. [23] In the weighing of these factors, Sopinka J. says that the following legal principles need to be considered and applied: 1. Primary purpose of s. 11(

b) is the protection of an individual's rights, those rights being the right to security of the person, liberty,and a fair trial (paras. 26 to 27). 2. Security of a person is protected by minimizing anxiety, concern and stigma of being exposed to criminal charges (para. 28). 3. The right to liberty is protected by seeking to minimize exposure to restrictions on a person's freedom from pre-trial conditions(para. 28). 4. The right to a fair trial is protected by ensuring that evidence is available and fresh (para. 28). 5.

The government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay (para. 48). 6. Courts suggest that a guideline of eight to ten months should be used to assess institutional delay in provincial courts but that"deviations of several months in either direction can be justified by the presence or absence of prejudice" (para. 76). 7. Prejudice can be inferred. The longer the delay the more likely this will occur (para. 61). Prejudice can also be proven. 8.

The degree of prejudice or absence thereof is "an important factor in determining the length of institutional delay that will betolerated" (para. 64). 9. All cases have certain inherent time requirements and the more complex the case, the longer the time and the amount of delaythat is reasonable (paras. 41 through 42). Part of the inherent time requirements is what is being referred to as "intake requirements".

[24] I have reviewed the other cases for the Defence which I shall not summarize here other than to say that they provide examplesof how courts have dealt with this issue in their own unique circumstances. Most of these cases depend on their own factualcircumstances. [25] The Crown relies upon the decision of Romilly J. in R. v. Adam, 2006 BCSC 350 , [2006] B.C.J. No. 535 for a numberof legal principles. The Adams case had significant complexity and required the use of voluminous evidence from other proceedings. There also were seven accused.

The Court found that despite a five-year delay, it was not unreasonable given the circumstances of thatcase. [26] On the issue of prejudice, Romilly J. at para. 191 stresses that the examination of prejudice under s. 11(

b) should be focussed onthe "prejudice flowing from a situation being prolonged by delay" and not "specifically concerned with such matters as the arrest orresulting stigma on an accused due to their participation in the criminal process".

Romilly J. also states that a lack of complaint or failureto take steps by an accused in response to delay is a relevant factor in assessing the issue of prejudice (para. 187). [27] On the issue where the time estimated by counsel for trial is inadequate and a continuation date is required, Romilly J. says thatin such circumstances, "It is only expected that a Court, counsel, and the system in general will not be able to provide immediate datesfor its continuation" (para. 153).

Romilly J. concludes that the resulting delay between such dates should be considered as neutral (para.154). [28] On the issue of the delay that occurs between the first appearance and setting of the first trial date, Crown again refers me toRomilly J.'s findings in Adam. In the circumstances of that case the Court found that the Crown had provided enough initial disclosureto allow Defence to make elections and proceed with the arraignment hearing at a date earlier than that which occurred.

In Adamcharges were laid on July 13th, 2001 and due to disclosure issues the arraignment process and the setting of preliminary inquiry, datesdid not occur until October 4th, 2002. Romilly J. found that disclosure by Crown was sufficient by April 24th, 2002 and the arraignmentshould have proceeded at that time. [29] Crown also relied upon the decision of R. v. McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66 on the issue of the Crown'sobligation for disclosure when records are in the possession of another state authority.

The decision of the Court was for the purposes ofdisclosure from a Crown entity other than the prosecuting Crown. The Crown entity is to be considered a third party (para. 13). TheCrown when put on notice of the existence of relevant information in the possession of another Crown entity has the obligation under theStinchcombe regime to make reasonable enquiries of the other Crown entity (para. 49). [30] If Crown counsel is denied the disclosure requested from a third party then this should be disclosed to the accused so that theaccused can make any application they deem appropriate (para. 49). (See also R. v.

Arsensault (1994), 153 N.V.R. (2nd) 81 at para. 15(C. A.). [31] Charron J. for the Court in McNeil, supra, also commented on the issue of timing of the disclosure. This relates to the secondcircumstance of the Crown's failure to disclose relating to the Crown's refusal to provide disclosure on the theft of relevant exhibits fromthe police exhibit locker.

Charron J. states: The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usualcourse may result in harm to anyone or prejudice to the public interest. [para. 18] Analysis [32] The applicants argue that although there is a delay of 32 months and two weeks from the laying of the Information to thecommencement of the trial, the Court may reduce this period to take into account an intake period. The applicants argue that the intakeperiod should be from the laying of the Information to October 1st, 2010.

The applicants argue that on this date the Defence made aformal request for outstanding disclosure for the B.C. Hydro records. They say that the period from October 1st to the setting of the trialon May 9th, 2011 should be calculated as part of the delay because it was due to the failure of the Crown to provide the requesteddisclosure. [33] The applicants also argue that although a pre-charge delay of six months and 23 days is not part of the formal delay as perMoran, supra, it is a factor in determining the appropriate intake period.

The applicants argue that the Crown had this additional pre-charge time to provide timely disclosure. [34] The Crown argues, referring to R. v. Adam, supra, that the applicants were not entitled to the disclosure requested with respectto the B.C. Hydro records prior to the arraignment for trial. They further argue that the applicants share the responsibility of failing toadequately estimate the time required for trial and therefore any time past the two days set for trial in February of 2013 should beconsidered neutral (see R. v.

Adam, supra, para. 153). [35] Crown argues that actions of the accused created at least part of the delay. These actions include bringing on a delayapplication at the commencement of the second trial date, late evidentiary motions, and the requirements for complete disclosure prior toarraignment of trial. [36] Finally, the Crown argues against a finding that the accused have been prejudiced by any delay. [37] In assessing the length to be attributed to the intake period, I find that this matter could have been arraigned on October 1st,2010.

Crown had an obligation for these third party records to make reasonable enquiries of B.C. Hydro or its agent to provide relevantdocuments. I have no evidence that they did not fulfil this obligation. The transcripts of appearance dates sets out that the Crown wasmaking efforts without success. Full disclosure was not required for the trial dates to be set.

[ 38 ] On the other hand, I must also consider that the Crown appears from the transcripts to have either agreed, did not oppose, or joined in the request for the adjournments requested following the October 1 date. This matter was put off numerous times despite concerns being expressed by this Court starting as early as January 24th, 2011 of the amount of delay that was occurring in setting dates.

I also take into consideration the pre-charge delay in what appears to be a fairly straightforward investigation of a grow operation which became more complicated with disclosure issues relating to third party records. [ 39 ] In considering all of these factors I determine that the appropriate intake period is one of six months. This means the time starts running as of December 3rd, 2010, six months following the swearing of the Information. [ 40 ] The adjournment of the first trial date must fall at the feet of both Crown and institutional delay.

The reason I say this is that the first trial date was adjourned due to lack of court time and also due to Crown not disclosing material relating to the theft of exhibits from the police exhibit locker. [ 41 ] The third period of time at issue is following the second trial date.

Crown argues that this should not be considered in the calculation of delay and refers to the Adam decision that I have referred to above. [ 42 ] Crown further argues that the Defence is to blame for their conduct in re-setting this matter for two days when the trial would clearly take longer. [ 43 ] Defence argues and I accept that both Crown and Defence agreed that two days was necessary for the second trial date.

At the setting of the second trial dates at least the delay issue should have been apparent to both counsel. [ 44 ] On the issue of the disclosure of the theft of exhibits, the position put forward by the Crown at the time of the setting of the second trial date was this did not appear to be an issue, and would be resolved well before trial. Unfortunately the position of the Crown at the commencement of the voir dire changed to one that disclosure was not appropriate. We then used well over one of the trial days before the Crown agreed to disclosure on terms that the Defence agreed to.

A further half day continuation was then required to complete the delay argument. [ 45 ] As a result I find the principle put forward by Romilly J. in Adam , supra , does not apply and will calculate the delay until today. [ 46 ] The time period from December 3rd, 2010 until May 15th, 2013 is a total of 29 months and 12 days. This is clearly well beyond the eight to ten month guideline for provincial courts that was suggested in Moran , supra . [ 47 ] As a result, I must assess whether this is one of those cases in which a deviation can be justified.

The significant factor in assessing the deviation that will be allowed is the presence or absence of prejudice. As noted above, the longer the delay, the more likely that prejudice can be inferred. Prejudice can also be proven. [ 48 ] Ms. Tran argues prejudice from a number of circumstances, but I am concerned that there is little evidence that any of these are related to the delay that has occurred. The exception to this argument is her medical circumstances and the marital separation from Mr. Tran. These matters have both occurred since the adjournment of the first trial date.

It is of course difficult to determine whether the delay caused these matters or whether it was a culmination of circumstances resulting from the charges. On the basis of the evidence, I find that the delay played at least some

part in these matters and therefore resulted in prejudice for Ms. Tran. [ 49 ] With respect to Mr. Tran, he argues that the delay also caused a number of matters including the separation between the parties. Although I have the same concerns as raised above, I find that the delay at least played some

part in the separation of the parties. [ 50 ] I also find that the delay in this case is of such duration that prejudice can be inferred to both of the accused. [ 51 ] There is a societal interest to have matters determined on the merits of the case. I must weigh the societal interest with the four factors found in Moran , supra , to determine whether the delay has been unreasonable. [ 52 ] Societal interest increases as the offence increases in seriousness. In this case, the charges faced by the accused are serious.

The delay in excess of 29 months however is also serious and well beyond the guideline of eight to ten months in provincial courts. I find there are no circumstances that justify this delay. [ 53 ] In weighing the societal interest and the four factors and applying the principles set out in Moran , supra , I find that the accuseds' right to be tried in a reasonable time as required by s. 11(

b) of the Charter has been breached. [ 54 ] The remedy for this breach shall be a judicial stay of proceedings pursuant to s. 24(1). (ORAL REASONS FOR JUDGMENT CONCLUDED)