R. v. To and To Date:, 2012 BCPC 49

Citation: R. v. To and To Date: 20120214 2012 BCPC 0049 File No: 68677-3-C Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAY QUAI TO and SAY LIN TO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: N. Lerfold Counsel for the Defendant: J. Soloman (for Say Quai To) Counsel for the Defendant: N. Hartney (for Say Lin To) Place of Hearing: Kelowna, B.C. Date of Hearing: February 14, 2012 Date of Judgment: February 14, 2012 [ 1 ] THE COURT: The two accused are siblings who have immigrated to Canada from China. Say Quai To has Canadian citizenship.

His sister, Say Lin To, has permanent residency in Canada. Both are charged with producing marihuana, possessing more than three kilograms for the purpose of trafficking, and with electrical theft. [ 2 ] The police obtained a search warrant for a local residence and, upon execution of the warrant, the two accused were present within the residence.

There is no paper trail associating either with control of the residence and it is the Crown theory that the two accused were caretakers of the marihuana grow operation. [ 3 ] Some 1,300 marihuana plants were seized from the basement as well as 800 clones in the upstairs area. With that number of plants, clearly this was a commercial operation.

At issue with any trial would not be the fact that a commercial operation existed, but rather whether these two accused had any control of that operation. [ 4 ] Defence counsel both allege that the rights of their respective clients under s. 11(b), to be tried within a reasonable time, have been violated. A judicial stay of proceedings is sought. [ 5 ] There has been a 33-month delay from the date of the not-guilty plea and arraignment to the date for this third trial date. Ten months of that delay is attributable to the accused when Ms.

To changed counsel at the last moment before the first trial date and that first trial date was adjourned. The second trial date was scheduled 13 months later and it did not proceed for systemic reasons. There was simply insufficient court time available for it to be heard. In short, there is the equivalent of a 23-month delay which is no way attributed to the accused and which I would classify as a systemic delay since time of arraignment. [ 6 ] In 1990, the Supreme Court of Canada in the case of R. v.

Askov , 1990 CanLII 45 (SCC) , [1990] 2 S.C.R. 1199 , set a guideline of six to eight months for institutional delay in Provincial Court for most cases before a s. 11(

b) Charter argument could be advanced. [ 7 ] In R. v. Morin , 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771 , the Supreme Court of Canada revisited this issue in an impaired driving case where there was a 14-and-a-half-month delay between arraignment and trial date. The trial judge had held that this delay

had not infringed the right of the accused to be tried within a reasonable time. On appeal, the court found that it was an unreasonable delay and a judicial stay was entered. The court suggested a guideline of eight to 10 months for an institutional delay. [ 8 ] In the decision, the court set out the following directions that are to this day often quoted as the seminal principles to be considered with this type of application, and I quote: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith , supra , "it is axiomatic that some delay is inevitable. The question is , at what point does the delay become unreasonable?" While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 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. [ 9 ] I find the following words written by the Supreme Court of Canada in Morin particularly important in this case, and I quote: How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11(

b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources.

This period of time may be referred to as an administrative guideline. I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. [ 10 ] The Supreme Court of Canada in recent years has yet again confirmed this same approach in the case of R. v. Godin , 2009 SCC 26 (CanLII) , [2009] 2 S.C.R. 3 , involving an accused charged with sexual assault where the trial was delayed over two years from the date of arrest.

The court held that in the absence of specific evidence of prejudice to the accused's liberty and security interests or his interest in a fair trial, prejudice may be inferred from the length of the delay. The longer the delay, the more likely such an inference will be drawn. [ 11 ] Counsel have referred me to many other cases that have also dealt with a Morin analysis. I am of the view that the Supreme Court of Canada has given guiding principles that are sufficiently clear that the court need not look at other lower level cases to interpret those guiding principles.

However, when following the Morin principles, the court is to take into consideration the local conditions. [ 12 ] As stated in the introduction, since the date of arraignment, there has been a 33-month delay of which I attribute 10 months to the accused leaving the remaining 23 months attributable to systemic delay. [ 13 ] This is not a minor charge. A life sentence is possible under s. 5(3 )(

a) of the Controlled Drugs and Substances Act . A significant jail sentence usually does follow convictions for such charges. With such a significant potential consequence, the state has a high public duty to ensure the resources are in place to have the matter properly heard on the merits remembering that the accused is innocent until proven guilty. [ 14 ] All would also agree that other matters involving acts of actual violence, matters where the accused is detained prior to the trial, and matters involving child protection and child custody each has a very high priority.

All would also agree that there must be some balancing of judicial time between the criminal, family, and civil matters under the jurisdiction of the court. All of these matters are competing for the same judicial resources, must also be heard within a reasonable time. [ 15 ] An Okanagan District review process published in 2008 held that the Okanagan District needed 13 full-time judges to have a full complement sufficient to have all the criminal, civil, and family matters heard in a reasonable time. Unfortunately, the government has never been able to provide the court with that full complement ever.

For some considerable time now, we have been well below that full complement of judges and, as a result, cases are backed up and not just in criminal, but in civil and family, as well. [ 16 ] In the last week or two our provincial government has announced the appointment of nine new judges in the province. Fortunately for the Okanagan, one of those judges is coming to the Okanagan. However, what may not be understood by the public, in particular, the local public, is the fact that this is not an increase of a judge in the Okanagan. It is simply the replacement of retiring judges.

In other words, it is the status quo and not an addition to the complement. [ 17 ] Much can be said about the appointment of nine new judges in the province. That fails to point out to the public that as many

judges have retired in the interim and it would be more helpful to the public to know what the net difference is of the total number of judges as opposed to simply announcing the number of new judges in circumstances where there have been multiple retirements. That having been said, it is not for the courts to decide what judicial resources will be made available by the government in times of economic restraint. [ 18 ] The court can only repeat the Morin principle that the government does have the constitutional obligation to commit sufficient resources to prevent unreasonable delay.

If the government fails in this regard, one of the consequences will be that some criminal matters will be judicially stayed for failure to be heard within a reasonable time. [ 19 ] A year ago, a very detailed analysis of this situation was also contained in a report entitled, "Justice Delayed," a report of the Provincial Court of British Columbia concerning judicial resources dated September 14, 2010, and later updated September 30, 2011. That report can be found at www.provincialcourt.bc.ca. Counsel for Ms.

To filed that report as an exhibit in this application for judicial stay. [ 20 ] I agree with what the Crown says when they say, "You have to look at the seriousness of the charges and factor that in." That is a fair comment.

The state interest is such with a murder charge, for example, that one would expect that the resources are going to be made available, but the state interest is such that it really needs to be heard even if it takes a bit longer and, on the other scale of things, if it is a shoplifting charge, the delay will likely not be nearly as justifiable if it takes too long for the matter to be heard given the simplicity of the matter. [ 21 ] I am also supposed to be looking at the prejudice claimed. Ms. To, in particular, was married in China in 2007. Her husband continues to reside in China.

She was hopeful to be able to sponsor her husband to Canada as an immigrant. Of course, when these charges were laid back in March of 2009, her passport was seized as a term of her release conditions. She has been unable to see her husband for the past three years. [ 22 ] Her immigration status is somewhat on hold, but more importantly, her husband's immigration status was put on hold.

She has been reporting to a bail supervisor, albeit in circumstances where that was eventually modified such that the reporting was allowed to be by phone. [ 23 ] She states in her affidavit that she knows this is a serious matter and, in effect, is fearful that she might end up with a significant jail sentence if she was convicted and that she is anxious to have her trial date to prove her innocence is the gist of her affidavit and, as I said at the outset, in circumstances where there is no paper trail tying her to possession and control.

The one element that the Crown intends to rely upon is the fact that she was physically present in the residence at the time the search warrant was executed. [ 24 ] Her brother, Say Quai To, has had lesser prejudice in the circumstances where he is a Canadian citizen and he was allowed to have his passport returned so that he could make one trip back to China to visit family while awaiting this trial, but as with his sister, he has been required to do his reporting and he has children ages four and nine and the stress associated with waiting for this matter to be heard over three years and the legal fees involved with it. [ 25 ] Counsel for both accused ask that I find real prejudice and, alternatively, that I infer prejudice based on this lengthy delay. [ 26 ] This is a sad state of affairs for the judicial system and not one that will be fully resolved by the recent judicial appointment.

There would need to be an increase in the number of judges in order for that to happen as opposed to simply a replacement of retiring judges.

Otherwise, the status quo is likely to continue. [ 27 ] I can understand the difficult situation the government is in with limited resources, but in hard economic times, court work does not become significantly reduced and, in fact, in stressful hard economic times, it might be argued that more families are breaking up and more Family Court time is needed and more civil disputes occur, and more criminal activity happens. [ 28 ] So it just begs the questions of whether or not the courts are an essential service where the resources have to be put in place in spite of the fact that there are limited resources available for everything that needs to be resourced in the province.

It is not my position to make the call on that. I can simply deal with the resources that are here and say that, in this case, this is a pretty simple straightforward case that ought not require 23 months of a systemic delay to be heard simply because resources are not available to have it heard earlier. [ 29 ] There is actual prejudice in the case of Say Lin To.

In the case of her brother, Say Quai To, if there is actual prejudice proven, it is clearly to a much lesser degree, but regarding both Quai To and Lin To, I am prepared to infer prejudice following the Supreme Court of Canada analysis in Godin . [ 30 ] Accordingly, I find that the 11(

b) Charter rights of each of these two accused has been breached and I now direct a judicial stay. [REASONS FOR JUDGMENT CONCLUDED]