R. v. Sanborn Date:, 2012 BCPC 41

Citation: R. v. Sanborn Date: 20120131 2012 BCPC 0041 File No: 57915-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GRANT SANBORN RULING ON APPLICATION OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: M. Sheriff Counsel for the Defendant: J. Campbell Place of Hearing: Abbotsford, B.C. Date of Hearing: January 30, 2012 Date of Judgment: January 31, 2012 [ 1 ] The Accused Grant Sanborn is charged with three counts of committing offences under

section 122 of the Criminal Code . The offences are alleged to have occurred in a period between August 1, 1994 and February 28, 1999. The Accused has expressed his intention to plead not guilty to each of these counts. On November 1, 2010, this matter was arraigned and a trial has been scheduled to begin on February 27, 2012 and continue for five weeks, ending on March 29, 2012. [ 2 ] On January 30, 2012 counsel for the Accused applied to adjourn the trial. Counsel began his submissions by stating that he was reluctantly making his application.

The reason for the adjournment request was because counsel for the Accused is of the opinion that he will be unable to be fully prepared for trial by the date scheduled for commencement of the trial. [ 3 ] Mr. Campbell was not counsel when the trial was set. He was given conduct of this matter in November of 2011. I have not been informed whether previous counsel was fired by the Accused or chose to withdraw from the case, but that counsel is no longer able to represent the Accused. [ 4 ] Counsel for the Accused advises that this is a complicated matter which involves considerable disclosure.

The original report to Crown Counsel was 165 pages in length, and it was accompanied by thousands of pages of further disclosure. Counsel also advise that in September of 2011, some further 3000 pages of disclosure were given by the Crown. [ 5 ] Mr. Campbell advised that he had every intention of proceeding on the scheduled trial dates despite his coming onto the case at such a late date. However in the course of his preparation for trial, he is concerned that he will not be able to properly prepared for trial and that his client’s right to a fair trial may be prejudiced through no fault of the Accused.

He apologizes to the court, and has also made representations that if he is afforded further time, admissions can be made which will shorten the length of the trial. [ 6 ] The Crown neither consents nor opposes the adjournment application. Mr. Sheriff advises that there is a small amount of disclosure to come. He states that the Crown is ready to proceed, but he is sympathetic to the position that Counsel for the Accused finds himself in. [ 7 ] For the five weeks that this matter has been scheduled for trial, at least one third of the total amount of the court time in the

Provincial Court in Chilliwack has been allotted to this case. Although some of this time can be used for expedited matters, the collapseof this trial will result in a waste of scarce resources that may otherwise have been able to be used by those who are waiting to have theirtrials heard on child protection matters, criminal trials for accused persons who are both in and out of custody and other issues ofpressing importance to litigants, complainants and witnesses.

I am also cognizant of the age of this case and of how further delay mayadversely affect the memories of witnesses, although Crown has not expressed any such concern. [8] On November 1, 2010 when this matter was arraigned and both counsel insisted that five weeks of court time would be required,counsel were cautioned about what a significant draw on the resources of the Chilliwack Provincial Court that this would cause. Theimportance of being prepared in order to avoid any adjournments was stressed at the time and counsel acknowledged their understandingof this to the court.

At that time the Accused was represented by other counsel. [9] I have inquired of counsel whether or not some of the court time could be utilized by having the Crown present its case andhaving the defence portion of the case adjourned. Mr. Campbell’s response was that this would still not afford adequate time to preparefor cross-examination. [10] The decision regarding whether or not a request to adjourn a trial should be granted is within the discretion of the trial judge. InR. v. Massaroni (2000) (ON SC), 150 C.C.C. (3d) 276 (Ont.

S.C.J.) Durno J. of the Ontario Superior Court of Justiceset out the test for the granting or denial of an adjournment application as being whether or not a reasonable and well-informed observerwould conclude that there was an appearance of unfairness to the accused. Similarly, in R. v. Hazout (2005) (ONCA), 199 CCC (3d) 474 (Ont.

C.A.), (leave to appeal to the Supreme Court of Canada refused February 23, 2006), Gillese J.A.summarized the law regarding the granting of an adjournment of the trial date at paragraph [31] of the judgement by stating that a judgeto whom such an application is made must balance two competing interests: “The first is the accused’s constitutional right to be represented by counsel including, when possible, counsel of choice. This is afundamental right vigorously guarded by the court.

The second is the trial judge’s right to control the trial process, a right that includes awide discretion to grant and refuse adjournments. An appellate court should only interfere with a trial judge’s balancing of these rights ifthe refusal of an adjournment deprives an accused of a fair trial or the appearance of a fair trial.” [11] In deciding whether or not refusing to grant this application to adjourn this trial would be seen by a reasonable and informedobserver as unfair to the Accused, I make the following observations:

a) This trial was scheduled approximately sixteen months prior to its commencement.

b) At the time the trial date was set, the Accused was (and continues to be) represented by competent counsel, who was sufficientlyfamiliar with the case alleged against the Accused so as to be able to arraign the matter, decide on a plea and on a mode of trial.

c) The Accused has had the major portion of the disclosure, including the 165 page report to Crown Counsel, prior to the fixing of thetrial date. He will have had the balance of the disclosure for approximately six months prior to the commencement of the trial.

d) At the time that the trial date was fixed, the Accused, through his counsel, was cautioned that, because of the significant draw onthe resources of this court that the time set aside for this trial was having, an adjournment of the trial would not be granted lightly. [12] Finally, I would note that in the event that the Accused feels that he is still unprepared to proceed to trial, he has an alternateremedy under section 561(2) of the Criminal Code, which allows him the right to re-elect his mode of trial at any time up to fourteendays prior to the commencement of the trial as of right, and thereafter with the consent of the Crown. If the Accused feels unready toproceed to trial, this

section of the Criminal Code will afford the Accused the opportunity to test the core of the Crown’s case byconducting a preliminary hearing. He will then have additional time to prepare for trial in the Supreme Court. [13] On a consideration of all of these factors, I am of the view that a reasonable informed observer would not see the refusal to grantan adjournment of this trial as unfair treatment of the Accused under these circumstances, or that it would constitute a denial of his rightto a fair trial.

I believe that a reasonable informed observer would view the time given to this Accused to prepare for trial as fair andreasonable. Accordingly I am exercising my discretion to deny the request to adjourn the trial of this matter. Dated at the City of Abbotsford in the Province of British Columbia this 31st day of January, 2012. _________________________________ The Honourable Judge K. D. Skilnick