R. v. Tisdale Date:, 2011 BCPC 487

Citation: R. v. Tisdale Date: 20111212 2011 BCPC 0487 File No: 57002-1 Registry: Chilliwack N THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHNNY CHOU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Crown: D.J. Porte Counsel for the Defendant: D.M. Foster Place of Hearing: Vancouver, B.C. Date of Hearing: January 29, 2013

Date of Judgment: February 8, 2013 [1] THE COURT: Stephen Tisdale is charged with impaired driving and driving with more than 80 milligrams of alcohol in hisblood. [2] This is an application by the defence for a judicial stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rightsand Freedoms [Charter] alleging a breach of s. 11(

b) by violating the accused's right to be tried within a reasonable time. BACKGROUND FACTS [3] The alleged offence date in this matter is September 16, 2009. The Information was sworn on November 5, 2009, althoughMr. Tisdale did not become aware of this until his first appearance. [4] Mr. Tisdale's first appearance pursuant to a Promise to Appear was January 19, 2010. He appeared in court three further timesbefore setting the trial date on March 30, 2010. The first trial date was set for November 10, 2010. This trial date was set on theunderstanding that Mr. Tisdale would represent himself.

The evidence is uncertain as to why a trial date was not set earlier; but bothparties agree that from January 19 to March 30, 2010, should be considered as "intake" and therefore not counted in the delay. [5] The first trial was adjourned on application of Mr. Tisdale to allow him to have counsel represent him. [6] A second trial date was set for June 21, 2011, but was adjourned due to lack of court time. Mr. Tisdale and his agent, articlingstudent Paul Evans, attended court on June 21, 2011, prepared to proceed with the trial. A third trial date is set for January 12, 2012.

Thiswas the first available trial date offered. [7] The accused is 33 years of age; he is a chef by trade but presently unemployed with limited finances. He does not have acriminal record. [8] The Crown argues that the pre-charge delay totals 14 months and five days. The defence argues that the pre-charge delay is 16and one-half months. The additional two and one-half months of delay as estimated by the defence, is because the first appearance didnot occur until approximately two and one-half months after the Information was sworn. The defence argues that this should be includedin the delay.

I have not been provided case law on this point. I do not include the time between the time of swearing of the Informationand the first appearance date of Mr. Tisdale. [9] Mr.

Tisdale does not become aware that an Information was sworn in this matter until he attends court on January 19.Presumably the Crown could have waited until January 19 to file the Information in an attempt to delay the time from starting to count.Further, it would saddle the police with additional work to require that they accurately estimate when a Crown office will have theearliest time to assess and approve charges and to ensure that coincides with a promise to appear. [10] For these reasons, I estimate the delay at 14 months and five days. THE LAW ON DELAY [11] The leading case on delay is R. v.

Morin, (SCC), [1992] S.C.J. No. 25 [Morin]. Morin sets out that thefollowing legal principles need to be applied in determining whether an accused's right to be tried within a reasonable time has beeninfringed: 1. The 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 through 27). 2. The security of a person is protected by minimizing the anxiety, concern, and stigma of being exposed to criminal charges. Theright to liberty is protected by seeking to minimize exposure to restrictions on a person's freedom from pre-trial conditions. The right to afair trial is protected by ensuring that the trial is heard while evidence is available and fresh (para. 28). 3.

There is a societal interest in having matters dealt with by the courts on the merits of the case. This interest increases as theoffence increases in seriousness (para. 30). 4. The government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay (para. 48). 5.

The factors to be considered in analyzing how long a delay is too long are the following: the length of the delay; the waiver oftime periods; the reasons for delay (including inherent time requirements of the case, actions of the accused and the Crown; limits oninstitutional resources and other reasons for delay); and prejudice to the accused. 6. The Court suggested 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 delay

that is reasonable. This has been referred to as "intake requirements". The length of this time will be influenced by local practices andconditions (paras. 41- 42). [12] The defence referred me to the case of R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3 [Godin]. The Court found in thatcase that the delay was well past the guidelines (30 months which was mostly attributable to the Crown or institutional delay) set out inMorin, but that this in itself did not prove the delay unreasonable. Only when the length of the delay was coupled with three other factorsdid the Court conclude that the delay was unreasonable.

The three other factors were that the case was straightforward requiring verymodest court time, most of the delay was attributable to the Crown and unjustified, and the defence attempted unsuccessfully to have thecase heard in a more timely fashion (para. 5). [13] In Godin, Cromwell J. for the Court found an unjust prejudice to the accused.

This was based on the three interests that s. 11(b)attempts to protect (para. 30): … liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud ofsuspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability ofthe defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence.

See Morin, at pp. 801-3. [14] Cromwell J. states on the other hand that there is a strong societal interest in having serious charges tried on the merits of thecase (para. 41). [15] The defence also referred me to the following cases which I have reviewed: R. v. Walker, [1998] B.C.J. No. 409 (S.C.)[Walker]; R. v. Robertson, [2006] B.C.J. No. 144 (S.C.) [Robertson]; R. v. Ghislieri, 2010 BCPC 321 [Ghislieri]; R. v. Ayres, 2010BCPC 86; R. v. Moscow, 2010 Surrey Provincial Court Registry No. 165071-1; R. v. Matson, 2010 BCPC 295; R. v. Brighton, 2010BCPC 379; R. v.

Vinet, 2011 Surrey Provincial Court Registry No. 174769; R. v. Krzewinski, 2011 BCPC 377. [16] Walker, and Robertson, follow and apply the legal principles set out in Morin, that where there is lengthy delay, prejudice canbe inferred. [17] The Crown referred me to the following cases which I have also reviewed: R. v. Chekaluk, 2011 Surrey Registry No. 176722-2[Chekaluk]; R. v. Horner, 2011 BCPC 211; R. v. Stavast, 2011 BCPC 157, R. v.

Gibson, 2010 BCPC 350. [18] The defence and Crown cases are fact specific and provide examples of situations in which courts have either found the delay tobe reasonable or unreasonable. I refer specifically to the Ghislieri, and Chekaluk, decisions in which the length of delay is similar, but theconclusion different. The scales can tip from reasonable delay to unreasonable when the delay is coupled with a certain degree ofprejudice to the accused.

The length of the delay is only one of the factors to be considered, although certainly it is significant as it mayinfer prejudice or be an important factor in proving real prejudice. ANALYSIS [19] The delay in this case of 14 months and five days is past the strict guidelines set out in the decision of Morin, but I do find itwithin the timeframe in which a period can either be reasonable or unreasonable depending on the circumstances of the case.

I mustanalyze, therefore, the factors for the delay. [20] The circumstances relevant to the determination of this issue are set out in an affidavit of the accused and can be summarized asfollows: • Mr. Tisdale says that the length of time elapsed from the alleged offence date has affected his ability to recall details of theevening. • Mr. Tisdale says that the charges he is facing has caused him significant embarrassment with his family, friends and co-workers. He has been charged with a second offence of impaired driving and refusal to provide a breath sample arising from an incident on May14, 2010. Mr.

Tisdale was charged in this matter in October 2010 and set to proceed to trial on December 15, 2011. • Mr. Tisdale says that the prospect of a criminal conviction has caused him great anxiety and difficulty concentrating on day-to-daytasks. Mr. Tisdale understands that if he is convicted on both sets of charges that there is the potential for a jail sentence and this hasincreased his anxiety. • Mr. Tisdale is concerned that a criminal conviction may have a negative impact on his ability to find employment. • Mr.

Tisdale incurred expenses of $200.00 in travelling to court on June 21, 2011 and lost $136.00 in wages. I note that there is noevidence of additional expenses from Mr. Tisdale's next attendance at court. [21] The total length of time from the swearing of the Information to the proposed trial date is two years, two months and one week.Mr. Tisdale is responsible for seven months and 12 days between March 30, 2010 and November 10, 2010, which would havecontributed to or exacerbated the prejudice that he has set out in his affidavit. [22] Three interests which s. 11(

b) attempts to protect are security of the person, liberty rights, and right to a fair a trial. [23] In assessing whether there has been a breach of Mr. Tisdale's right to security of the person by the delay in this matter the Courtneeds to review the anxiety, social stigma, and concern that the charge has caused. This prejudice to the accused can also be inferred. [24] In most, if not all, criminal charges, the accused will suffer some degree from these factors. On the one hand, this would beincreased for someone such as Mr. Tisdale who has no prior criminal record. On the other hand, it would be less serious in circumstanceswhere the penalties are less than other charges.

[ 25 ] The evidence before me is that the Crown would not have sought a jail sentence on the Information before the Court. Mr. Tisdale's liberty interest has not been impacted as he is not bound by any restrictive bail conditions or suffered pre-trial custody. [ 26 ] On the issue of the right to a fair trial, Mr. Tisdale says that his memory of the events of the incident has diminished with the delay. There is no evidence that any evidence is no longer available to Mr. Tisdale. The diminishing of memory over time occurs in most matters.

The longer the delay the more the memory will have diminished. [ 27 ] I note that the accused testified that he wrote notes of the incident when he received his particulars, which appears to have occurred in January 2010, but certainly no later than the fall of 2010. The accused testified that he had difficulty in remembering dates and appointments generally. He admitted to drinking alcohol on the night in question, but disagreed that it could be for this reason that his memory was affected. [ 28 ] Other than this broad statement that Mr.

Tisdale's memory has diminished with the delay, I am not certain of what has been lost to Mr. Tisdale and what significance it has. CONCLUSION [ 29 ] I find that the applicant has not proven a breach of his s. 11(

b) rights to be tried within a reasonable period of time. The delay of 14 months and five days is such that the determination of whether this delay is reasonable or unreasonable is dependent upon an assessment of the degree of prejudice suffered by the accused in these circumstances. I must weigh this prejudice against the interests of society to have matters determined on the merits. [ 30 ] I have come to the conclusion that the actual and inferred prejudice to the accused as set out in my analysis does not reach the tipping point where it has moved the delay from being reasonable to unreasonable. [ 31 ] The application of the accused is denied. _________________ R.C. Dickey J.