Regina v. Jelenic - Excerpt Reasons for Judgment Date:, 2003 BCPC 253

Citation: Regina v. Jelenic - Excerpt Reasons for Judgment Date: 20030321 2003 BCPC 0253 File No: 56245 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT MATO JELENIC EXCERPT FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. ALEXANDER Counsel for the Federal Crown: C. Osborne Counsel for the Defendant: M. Stern Place of Hearing: New Westminster, B.C.

Date of Hearing: March 21, 2003 Date of Judgment: March 21, 2003 [ 1 ] THE COURT: The accused stands charged with possession of marihuana and possession for the purpose of trafficking, contrary to s.7(1) and s.5(2) of the Controlled Drugs and Substances Act . He brings an application, pursuant to s.11 of the Charter , submitting that his right to trial within a reasonable time has been breached and that his ability to make full answer and defence has been compromised as a result of delay.

He seeks a judicial stay, submitting that he has suffered actual not just inferred prejudice as a result of that delay, and he maintains that the delay is wholly attributable to the Crown. [ 2 ] The Crown opposes the accused's application. It submits that, even if the court were to find that there has been unreasonable delay attributable to the Crown or its agents, that there is no evidence of prejudice to the accused, and that in the circumstances the court should decline to exercise its discretion and grant the stay sought by the accused. [ 3 ] The accused has filed an affidavit in support of his application.

His counsel has prepared a chronology of these proceedings, which is not disputed by the Crown.

I have also heard evidence from Constable Cara, the investigating officer, who testified as to his involvement and investigation, and the explanation for any delay in bringing this matter before the court. [ 4 ] The chronology of events is as follows: February 20th (sic), 2000, execution of search warrant and discovery of marihuana grow operation at 1162 Salter Street, New Westminster, B.C.; April 28th, 2000, Information sworn, warrant in first instance sworn; June 6th, 2002, accused arrested and released on bail; June 17th, 2002, adjourned to obtain counsel; June 24th, 2002, counsel obtained and adjourned to arraignment hearing date; July 23rd, 2002, arraignment hearing held; trial date of March 20th and 21st, 2003, with trial confirmation hearing of February 17th, 2003; February 17th, 2003, accused changes counsel; February 19th, 2003, new counsel appears; trial date adjourned. [ 5 ] This document was submitted and prepared on the 17th of March.

This matter was for trial yesterday, I understand, and that trial date was adjourned. [ 6 ] These are serious offences. Constable Cara testified that 1,500 three-foot-tall marihuana plants were located in an upstairs bedroom at the address on Salter Street in New Westminster. A number of documents in the name of the accused were located near the scene: gas, hydro and telephone bills, all with January and February 2000 dates.

The police officer also spoke to the landlord, who confirmed that the accused had disappeared and that his last rent cheque did not clear the bank. [ 7 ] Constable Cara did the usual enquiries to locate the accused through CPIC, PIRS and B.C. OnLine. He was aware that the accused had a driver's licence issued in 1998 and valid until 2003 with a Vancouver address.

Constable Cara assumed that, as the accused had been living in New Westminster as recently as February 2000, that the driver's licence address was not current. [ 8 ] An Information was laid on April 20th, 2000, and a warrant left in the system describing the accused as having no fixed address. The police officer took no further steps to find the accused. The accused had no knowledge of the outstanding charges until he was picked up at a traffic stop in June of 2002. [ 9 ] Since the initial arrest of the accused, this matter has had an unremarkable course through the court system.

Counsel agree that the period of delay to be considered is that from the warrant to arrest, a period of some 22 months. [ 10 ] I have been provided with a number of authorities by defence and the Crown. These are useful for the guidance they provide in applying the relevant principles in an application such as this, though many do not deal directly with the question of delay from warrant to arrest.

[ 11 ] The seminal case on delay, other than Askov , is a decision of the Supreme Court of Canada in R. v. Morin .

The applicable principles to be applied are set out at pages 9, 10, 17 and 18 of that decision, as has been presented in the accused's case book, and quoting from page 10, the factors to be considered are as follows: The length of the delay; waiver of time periods; the reasons for delay, including inherent time requirements of the case; actions of the accused; actions of the Crown; limits on institutional resources, and other reasons for delay; and lastly, prejudice to the accused. [ 12 ] Only three of the cases cited by both counsel involve situations of delay between warrant and arrest. They include R. v.

Alhakim , a decision of the British Columbia Supreme Court of Justice Warren; R. v. Ram and R. v. Gagnon , the latter two cases being decisions of this court. [ 13 ] Stays were granted in each of those cases. Each involved significant delays: Alhakim , four years from warrant to arrest for a sexual offence; 22 months in Ram on a charge of possession of cocaine; and 30 months in Gagnon on a charge or mischief.

It is also noteworthy that both Ram and Gagnon were both decided prior to Alhakim , and the court did not have the benefit of Justice Warren's careful analysis. [ 14 ] The defence argues that the police could have and should have done more to locate the accused, rather than to let a warrant sit on the system. He submits that the accused has openly maintained a residence in the Vancouver area and that he would have been easy to locate. But for the traffic stop, counsel suggests that the warrant may still be outstanding.

He relies on s. 511 of the Criminal Code which contemplates that warrants will be executed forthwith. This is necessary, he argues, not only for the protection of the accused's right to be tried within a reasonable time, but for the larger societal interest of bringing criminal matters to trial. The warrant system, as it presently stands, he submits, does not achieve either end. [ 15 ] The prosecution had little to say regarding the explanation offered by Constable Cara.

It is careful to note that the police actions in this case do not necessarily represent a policy of the Crown or its agents and that this case should be considered individually. In the absence of further evidence of some larger institutional problem in this regard, I agree. That being said, I find the delay to be inordinate and prima facie unreasonable. The delay was caused entirely by the action, or should I say, inaction of the agents of the Crown in executing the warrant in a timely fashion. The lack of follow-up by the police officer was due to his own workload.

No other explanation was offered. [ 16 ] Considering the Morin factors, is the accused entitled to a stay in these circumstances? Though a certain measure of prejudice can be inferred from the passage of time, the case law subsequent to Morin , including R. v. Fagan , R. v. Stewart , both decisions of our Court of Appeal, has emphasized the issue of actual prejudice to the accused resulting from the delay. This is also illustrated in the decision of the Supreme Court of Canada in Delaronde , a 1997 decision of that court, and I quote from page 369 and 370.

At the top of page 369: In the cases of Morin , Sharma , supra, and R. v. CIP Inc., 1992 CanLII 95 (SCC) , [1992] 1 S.C.R. 843 , 71 C.C.C. (3d) 129 , the Supreme Court recognized that prejudice was the most important factor in determining the degree of tolerance when faced with a lengthy systemic delay. It also imposed on the accused the burden of establishing prejudice when it cannot be inferred from the mere passage of time. More specifically, in R. v.

CIP Inc. , supra, the Supreme Court decided that the presumption according to which the mere passage of time caused prejudice to the accused was only applicable when the right to liberty or security of the person was directly in issue. [ 17 ] And I continue at the bottom of the page: As a result of the preceding, although the delay in the case at bar was much longer that it should have been, I consider that the respondent has not shown that the protection of his interests has been affected because the record does not indicate any unfavourable effect on his right to a fair trial.

Given the absence of evidence of prejudice by the respondent, the public interest in trying an accused must take precedence over the accused's interest in [page 370] obtaining a stay of the proceedings based on the mere passage of time. [ 18 ] As to the issue of prejudice, the accused deposes that it is difficult to recollect matters from several years ago, like the configuration of the residence in question and who occupied what portion.

He further deposes that the person who has such information, with whom the accused has apparently been in contact, is reluctant to come forward and give inculpatory evidence. [ 19 ] The Crown submits that the mere passage of time is not enough to establish prejudice and, again, relies on R. v. Delaronde , from which I have just quoted. This was also the finding of Warren, J., in Alhakim at paragraph nine, and I quote: The Crown agrees that there is such unusual delay that an inquiry is mandated but that there is no prejudice demonstrated by the accused.

Mere passage of time is not sufficient to demonstrate prejudice in the absence of evidence of prejudice: R. v. Delaronde (1997), 1997 CanLII 404 (SCC) , 115 C.C.C. (3d) 355 (S.C.C.) . Further, the issue is not whether the police performed their duty to execute on the warrant; the issue is whether there has been a delay which has prejudiced the right of the accused to a fair trial: R. v. Haig (8 October 1991), Vancouver CC910704 (B.C.S.C.), a case where the police could have done more to execute a warrant over 15 months.

In that case however, I note that the court concluded that the passage of time affected the memory of both witnesses for the Crown and the defence and that no prejudice had been demonstrated. [See also R. v. Thibodeau (30 May 1991), Duncan 11990 (B.C.S.C.)]. [ 20 ] It is noteworthy that in the Alhakim case, the accused was able to establish, through medical evidence, that his ability to recollect events was comprised due to short- and long-term memory deficits, brought about by torture that he had previously suffered. There is no such evidence of any such deficits before me.

The accused's position is that he did not have control over the premises where the plants were located but that he is aware of the person who did. He has been in contact with that person, and though that individual may be a reluctant witness, there is no suggestion that he is not available or able to give evidence. Any difficulties pertaining to that

potential witness do not arise from any delay. [ 21 ] There is no evidence that the accused has been subject to onerous bail conditions and any stress or stigma arising from these proceedings is not due to delay, but due to involvement with the criminal justice system generally. [ 22 ] I find that any prejudice alleged by the accused to be minimal. Unlike Gagnon where a stay was granted on a mischief charge, the allegations in this case are serious and there is a societal interest in bringing them to trial. [ 23 ] In applying the applicable principles to the evidence before me, the accused's application for a judicial stay is dismissed. (EXCERPT CONCLUDED)