R. v. Blattler Date:, 2012 BCPC 35

Citation: R. v. Blattler Date: 20120125 2012 BCPC 0035 File No: 73437-1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID ALAN BLATTLER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE STEINBERG Counsel for the Crown: L. Yip Counsel for the Defendant: T. Anderson Place of Hearing: New Westminster, B.C. Date of Hearing: January 25, 2012 Date of Judgment: January 25, 2012 [ 1 ] I am going to give judgment today on the application. Of necessity, it will not be as erudite and all-inclusive and perhaps as grammatically correct as it might otherwise be if I took the time to write it out.

However, we are on day one of a trial and I think the witnesses need to know what is going on and whether they are required to come back. [ 2 ] I will also say before I begin that I will not object if when I give a chronology and I make a mistake that somebody stands up and says, "No judge, it wasn't such-and-such a day, it was a day or two earlier or later" just so that I get the dates correct, although in the grand scheme of things, I do not think a day or two here or there is going to change the ultimate decision. [ 3 ] The accused, David Alan Blattler, has been charged on Information 73437-1 that from the 22nd day of September, 2009, to the 2nd day of October, 2009, inclusive, at or near New Westminster, in the Province of British Columbia, he did by means of a computer system within the meaning of subsection 342.1(2) of the Criminal Code , communicate with a person who was, or who David Alan Blattler believed was, under the age of 16, for the purpose of facilitating the commission of an offence under s. 152 with respect to that person, contrary to s. 172.1(1) (

b) of the Criminal Code . [ 4 ] The Information was sworn November 16th, 2009. The Crown has proceeded summarily. It is now January 25th, 2012. Approximately 27 months have passed since the inception of this matter. [ 5 ] The defence has brought on an application under s. 11(

b) of the Charter of Rights and Freedoms asking the court to enter a judicial stay of proceedings because, the defence says, we are long past the opportunity for the accused to be tried within a reasonable time. In support of that submission, the accused has filed an affidavit. [ 6 ] The Crown in its submission has commented on various paragraphs within that affidavit but has not seriously challenged any of the factual averments contained within that affidavit.

They have simply sought in their submission to persuade the court about how much weight should be attributed to any particular statement made by the accused. They have not applied to cross-examine the accused on his affidavit, nor has the Crown filed its own affidavit. [ 7 ] There have been various statements made by counsel outlining the factual history and background of this case. Those are not in

the form of affidavits, but I accept what each counsel has said as they have proceeded through this application in a very professional andcooperative manner. [8] When considering a s. 11(

b) application, I would like to start off by saying that the whole notion of a judge entering a stay ofproceedings preventing a criminal case from being heard is a very serious matter. In my view, it is very serious because it is almost theantithesis of what the purpose and role of the judge is. [9] The justice system is designed to have matters of public interest aired publicly and in conformity with the constitution, variousstatutory provisions and the common law. It is a very serious matter for a judge to say no, this matter cannot be heard because it offends,for example in this case, s. 11(

b) of the Charter. [10] In considering the s. 11(

b) application, consideration must be given to: 1. The length of the delay. 2. The waiver of any time periods that constitute that delay. 3. The reasons for the delay, whether they are built into the inherent time requirements for a case; the actions of the accused incausing a delay of the case; the actions of the Crown and whether or not they contributed to any delay; the limits of institutionalresources, and any other sources that might have caused the delay. [11] The role that the limits of institutional resources play has been emphasized very recently in the British Columbia Court of Appealcase of R. v.

Horner, 2012 BCCA 7 , [2012] B.C.J. No. 18. This judgment was handed down January 10th, 2012, two weeksago. [12] This charge is serious. It is true that it has been proceeded with summarily, but it is an extremely serious charge. [13] The nature of this charge is one that society in general has a very strong interest in seeing determined by trial in the ongoingeffort to suppress the avenues of harm which have opened up given the current ubiquitous nature of the internet, its easy access to peopleof all ages, and the need to protect vulnerable young people who may fall prey to internet predators.

There is no question in my mindthat there is a very strong societal interest in this matter. [14] I quote from the case of R. v. Cao et al., a decision of The Honourable Judge Wood, August 30th, 2011, the citation being 2011BCPC 247 at para. 18: [18] But when looking at that issue and the interest that society has in ensuring that serious charges are ultimately determined througha trial, one has to also keep in mind that society has an interest in seeing all charges determined, prosecuted, and brought to finality in atimely way. That is one of the more readily recognized purposes of the provision in s. 11(

b) of the Charter, which does not exist purelyfor the interests of the accused. [15] I am going to turn now to an examination of each of the four elements that I set out moments ago. [16] The length of the delay is approximately 27 months. The length of the delay was caused when there was an adjournmentapplication that took place on December 10th, 2010, four days before the trial was to commence on December 14th, 2010. I will getback to the reasons for that adjournment application by the accused. [17] Was there a waiver of any time periods within that 27 month delay? I find that there were none.

The case law is quite clear thatany waiver of the right to be tried within a reasonable time must be clear on the material before the court. In this case, the materialindicates quite the opposite. [18] Even before his first appearance in court, the accused had already retained counsel. That -- at least in these parts -- is unusual.

Itis my experience that it often takes several court appearances before an accused shows enough interest in their own jeopardy to make theeffort to get legal advice. [19] In this case, it is apparent that between the time the accused was arrested on October 2nd, 2009 and his first appearance inNovember 2009, he had taken it upon himself to retain counsel. [20] There were a few appearances between November 16th, which I believe was the first appearance date, and February 3rd, 2010which was the arraignment hearing and the date upon which the initial trial date was set.

Those appearances would be expected as thereare discussions between the Crown and the defence and the gathering in of particulars and the seeking of instructions. [21] In the system that we have in British Columbia Provincial court, the fact that a two-day trial was arranged by as early as February13th, 2010, two-and-a-half months after the initial appearance on November 16th, 2009, confirms to me that the accused as he stated inhis affidavit wanted the matter resolved quickly. [22] There are obviously inherent time requirements to set up a case.

In this case, the Crown quite forthrightly advised me that fromtheir perspective -- if I can call it the meat and potatoes of this case -- is very straightforward. [23] They simply propose to call Detective McFarland who apparently was posing on the internet as a young female who wasengaged in an internet chat with the accused. As a result ultimately of chatting back and forth, a meeting was set up at a location in NewWestminster.

The accused was seen attending at that location and speaking with an undercover female officer and I believe he wasarrested at or about that moment. [24] Crown therefore would be simply relying on Detective McFarland's evidence as supported by his computer logs verifying theconversations that he had over the internet and the surveillance of the accused in the Crown's theory following up on what had been

agreed on during the chatting back and forth. [25] That does appear to be a straightforward case. What that means is that the inherent time requirements to set up the case from theCrown and the defence perspective need not have been particularly long. This is not a conspiracy case where there are tens of thousandsof pages of wiretap or surveillance.

There appears to be nothing particularly complex about this prosecution. [26] Certainly I find nothing that would take it anywhere beyond the inherent time requirements in the range of eight to ten months toget the matter to trial, given Crown and defence requirements, and the built-in delay of the court system. It is not as though the accusedcan pick his very first day. He is one of thousands of cases and he has to fit in with the general flow of cases in the criminal justicesystem. [27] But as I say, the outside limits according to R. v. Morin, (SCC), [1992] 1 S.C.R. 771 would be eight to tenmonths.

Beyond that, the matter does deserve an investigation into why it took longer. So I do find that the inherent time requirementsfor this case can safely be categorized as minimal. [28] The next area to be investigated by the court is whether or not the actions of the accused are responsible for the delay. [29] Had this matter proceeded on December 14th, I can say from the vantage point of hindsight that we are now in -- this beingJanuary 25th, 2012 -- there would be no successful 11(

b) application. [30] On December 1st, 2010, the matter appeared after a few brief earlier adjournments to confirm that the December 14th trial datewas indeed a go. [31] It is apparent from the transcript of that hearing that has been filed in this case that the accused and the Crown anticipated that itwas a go. There were certain discussions about the Charter and what may or may not be tendered by the Crown in that regard.

Thatunderstanding was disturbed on December 8th, 2010. [32] Fourteen months earlier, in October of 2009, the accused's computer had been seized by the police subsequent to his arrest. [33] The Crown has advised the court, although not in an affidavit, but I accept what the Crown has to say, that within a few weeks ofthat seizure, Detective McFarland determined that the RCMP would not be able in a timely manner to investigate what may or may notbe on that computer and he therefore asked the resident expert at the Abbotsford Police Detachment to make a forensic investigation ofthat computer. [34] That is what the reference on December 1st is all about; that there was nothing apparently coming from that computer in time forthe trial and the trial was therefore a go. [35] Seven days later the ground shifted.

A preliminary report showed up in the Crown's office concerning the contents of thatcomputer. The Crown did as it ought to have done -- it forwarded that preliminary report to the defence. That is what led the defence torequest an adjournment on December 10th of the trial that was set four days later. [36] There is talk, some of it initiated by counsel, some of it initiated by the then presiding judge, about expert evidence or the callingof an expert. Given the vantage point of this point in time, I find that that was just a complete red herring. It had nothing to do withexperts.

What it did have to do with however was finding out what was on the computer. I accept that counsel for the accused feltdriven to ask for the adjournment that he had not anticipated making. In my judgment, it would have been unprofessional and perhapsnegligent not to. [37] I want to quote from what the Crown had to say on December 10th, 2010 after the court was advised by Mr. Yip that he had justreceived the preliminary report from the Abbotsford Police on the 8th. At line 26 on p. 1, Mr.

Yip on behalf of the Crown said: I think my friend had been speaking with the investigator the week earlier and actually the investigator hadn't expected it, [and I'massuming the investigator is Detective McFarland. Referring back to he hadn't expected to get the Abbotsford forensic results] but itarrived on Wednesday and it was disclosed immediately and it does contain some evidence relevant to the matter. [38] It is not surprising that the defence then asked for an adjournment. [39] Mr. Yip goes on to say at line 42: Well, it's -- he put it as a draft report.

It just -- there's a lot more material on the actual digital files that I don't have yet. [40] Well, given that statement on the record that the Crown did not have a lot more material on the digital files, it is not surprisingthat the defence did not have it either. There is no indication what that material is and that is not surprising since no one had it to lookat. [41] I do not fault the lawyer end of the prosecution of this matter for that. He had disclosed clearly early on that there was acomputer that was seized.

What is unexplained is why it took 14 months to get a draft report that as far as the Crown knew on December10th, four days before the trial, indicated there was other material in digital form that he had not yet received that was material to thecase. [42] The only explanation that has been given to this court is that the Abbotsford Police were busy because of the murders andinvolvement of the IHIT Unit at the time. I accept that. [43] I think judges can live in the real world, and I am aware that there were multiple murders in the Abbotsford area and Surrey areaat that time and IHIT was very busy.

But that does not deal with the case before me. It is simply a reason why for some period of timethe Abbotsford expert, the computer fellow, did not send in his report.

[ 44 ] It does not answer when it is he did look at. I have no idea whether he looked at the computer the day it was delivered by Detective McFarland, and I am told and I see no reason not to accept Mr.

Yip's comment in submissions that it was delivered within approximately two weeks of its seizure. [ 45 ] I have no idea whether it was looked at immediately but the report as sometimes happens was not generated, whether it was looked at just at the last moment because, and there is no evidence for or against this, Detective McFarland was burning up the phone lines or the email lines saying to the Abbotsford expert saying, "Look, there's a trial coming up. Get with it. There's a deadline here".

I have no idea at all. [ 46 ] There has been zero submission on whether it took 20 minutes, an hour, a week, or a month of investigation of that computer to determine what it did or did not contain. Was it a matter that could be resolved once they turned it on within ten or 15 minutes? I do not know. [ 47 ] In view of the fact that it took 14 months to get that information and the fact that at that time the computer was in the possession of the police, that delay can only be laid at the foot of the Crown in the form of the police. It certainly cannot be laid at the feet of the accused.

He did not have his computer to investigate. [ 48 ] It may very well be that the police are as severely under-funded as the courts are. It would not surprise me in this Province. [ 49 ] But it led to an adjournment properly made; in fact, professionally required. [ 50 ] I am bolstered in that finding by a review of the transcript of what happened on January 5th, 2011 in court and I quote form p. 5 of that transcript, and I start at line 29: Mr. Anderson: If my friend is saying that if Mr.

Blattler were to testify that they would not cross-examine him on the material that they say was found on his computer -- The Court: Are you prepared to say that? Mr. Yip: Sorry? Mr. Anderson: Is the Crown prepared to say that in the event Mr. Blattler testifies it will not seek to cross-examine him on the material that they say is -- [and then the judge finishes the sentence but it is adopted and confirmed by Mr. Anderson] The Court: -- on the undisclosed material? Mr. Anderson: Yes. [And Mr. Yip says and quite properly; I do not fault the Crown for this] Mr.

Yip: Well, I am not -- I am not prepared to say that. [ 51 ] That is the absolute correct response by Mr. Yip on behalf of the Crown. [ 52 ] He told us earlier that there were material files that he had not yet received. In fact, he did not receive them until January 14th, 2011.

It is not surprising that on January 5th, not being aware of what those undisclosed materials would be, he was not prepared to commit himself one way or another. [ 53 ] Now, that is not to say that the Crown is under any obligation to advise counsel for the accused on what areas they plan potentially to cross-examine an accused on should the accused take the stand. But that was not the reason clearly for the question or the assurance sought by Mr. Anderson. [ 54 ] This was a situation where both counsel were trying to get on with a case that had apparently at that time material undisclosed evidence.

Neither of them could make an appropriate decision on how to proceed. [ 55 ] I find that the adjournment request which effectively doubled the delay time was caused by the delay in the forensic examination and the disclosure of that examination by the Abbotsford Police. [ 56 ] There is no indication and I do not find that the Crown in the person of the prosecutor is at fault for creating any unnecessary delay.

Disclosure was made in as timely a fashion as one can possibly hope for once the prosecutor received the necessary material. [ 57 ] In terms of other sources for delay, I find that there was none, other than institutional delay. There is in my opinion, only one word to describe the current state of the Provincial Court of British Columbia's ability to handle its caseload: abysmal. [ 58 ] There is no amount of press releases or talk show appearances that is going to fix the over-stretched limits of our institutional resources.

There is only one course of action that will fix the current situation and that is action not words. I will have more to say about that in a moment. [ 59 ] It clearly is appropriate to infer prejudice to the accused, simply by the passage of 27 months which is approximately three to three-and-a-half times the time period set out by the Supreme Court of Canada in Morin , supra .

In this case, I not only infer prejudice, I find actual prejudice to the accused. [ 60 ] With respect to the accused's statement in para. 7 of the affidavit, he avers that he was extremely upset about the allegations and they have been constantly on his mind since his arrest. That comes with the territory when charged. That is built into every charge and I do not find that that constitutes the sort of prejudice contemplated by the Superior Courts in weighing a s. 11(

b) application.

[61] I accept para. 8 wherein the accused states that he instructed his counsel to proceed to trial as soon as possible, "as I wanted theuncertainty of my future to end". That is absolutely consistent with his actions. [62] Paragraph 11 states: 11.

My bail supervisor informed me on first check-in that she "had to see the whites of my eyes every Thursday" and that I was notallowed to use the internet. [63] That clearly over 27 months has been a major restriction on his liberty interests. [64] The Crown has cited case law to support their position that the accused never appealed or tried to appeal those conditions. [65] There are three main restrictions: not to be alone with any female under the age of 16; to report; and no access to the internet. [66] With respect to him not complaining in court, I find that his actions do not work against him in that regard.

Firstly, with respectto any request that he be allowed to use the internet because it was interfering with his employment which involved, amongst otherthings, as a truck driver being dispatched by the internet, and using the internet to be able to purchase cars for his disposal business. Theodds on a charge of internet luring of the person being allowed to use the internet are in a practical sense zero of a court allowing himback on the internet. [67] Secondly, with respect to the requirement that he report weekly so that the bail supervisor can see the whites of his eyes, therewas nothing to appeal there.

The condition said "report as and when directed". It did not say report by court order in person. It said "asdirected by the bail supervisor". The only person he could have appealed to is the bail supervisor. There was nothing other than deletingthe entire term the court could not have made it more general. The Crown has not challenged that statement that the bail supervisor wasrequiring a personal attendance weekly. So I accept that unchallenged statement. [68] The accused says that he instructed his counsel to ask for the adjournment based on the advice he was receiving from his lawyer.

I do not blame him for following his lawyer's advice, for the same reason that I have found that it was proper that his counsel ask for theadjournment. That does not mean that the accused wanted the adjournment; that simply meant that he was driven to that point by thelack of timely disclosure. [69] There is also the unchallenged statement in his affidavit that these delays in setting a second trial date have essentially doubledhis costs in terms of representation. That is real. That is a prejudice to him.

Again, there is no challenge to that statement by him and Isee no reason to disbelieve that; it sounds reasonable that when counsel has set aside two days of trial and is forced into an adjournmentapplication four days before the time that he has committed for that trial, that there are inevitable costs to the client.

That is the way theworld works. [70] I do not place much weight at all on para. 31 where the accused swears that: As this allegation is now so old I am concerned that my ability to properly recall and articulate my state of mind is impaired and willmake it more difficult for me to present a proper defence. [71] Given the nature of the allegation and how the Crown proposes to put it before the court, it is hard to conceive of how thepassage of time would really affect what is written down in a log of conversation back and forth, or the physical movement of theaccused to the meeting point pursuant to that internet conversation.

The case is not built on subtlety. [72] I accept that there has been ongoing family stress and to a minor extent that does weigh into the matter. In that regard Iespecially point to the period between December 14th, 2010 and today's date. The stress that happened beforehand would be just thenormal sort of stress that one would expect of a person pending their trial. What is unfortunate in this case is that stress was doubled induration. [73] His Honour Judge Brecknell in the case of R. v.

Kaiser and Kaiser, 2011 BCPC 168 quoted from the seminal delay case of R. v.Askov, (SCC), [1990] 2 S.C.R. 1199 from the Supreme Court of Canada. It is found at para. 158 of the Kaiser decision: [158] In the same vein the court in Askov at paragraph 47 said: [47] The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community'sfrustration with the judicial system and eventually to a feeling of contempt for court procedures.

When a trial takes place withoutunreasonable delay, with all witnesses available and memories fresh, it is far more certain that the guilty parties who committed thecrimes will be convicted and punished and those that did not, will be acquitted and vindicated. It is no exaggeration to say that a fair andbalanced criminal justice system simply cannot exist without the support of the community. Continued community support for oursystem will not endure in the face of lengthy and unreasonable delays. [74] Judge Brecknell quoted himself in the case of R. v.

McComber, 2010 BCPC 255 found at para. 157 of the Kaiser, supra,decision: [157] In McComber at paragraph 44 I said: I also conclude that the term "public interest" includes the public's interest to be served by a court system that is given sufficient judicialand support resources to allow cases to be concluded within the timeframe directed by the Supreme Court of Canada, and thereby ensurean accused citizen's Charter rights are not infringed by the Government's fiscal decisions which result in the court being unable to fulfilits mandate to all citizens, be they accused, victims, witnesses, police officers or the broader community… The court constantly strives to serve the public interest in the administration of justice in the face of dwindling resources and a

burgeoning caseload. Only government can re-establish the necessary and appropriate level of judicial and support resources.

Without those resources, the court could be overwhelmed with Askov, supra , applications which will impact the Charter rights of individuals, inhibit the court's ability to serve the public's interest in a timely fashion, and undermine community support for the criminal justice system. [ 75 ] The following quote is found in many of the cases, often without attribution and at this moment I unfortunately cannot come up with the original attribution but it is found repeatedly in the case law and in this case I am quoting from its inclusion in R. v.

Nelson , 2011 BCPC 401 : [21] 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 the 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. [22] There is a point in time at which the court will no longer tolerate delay based on the plea of inadequate resources: see R. v.

Morin . [ 76 ] In the case of R. v. Nuttall , 2011 BCPC 344 there is found a quote from His Honour Judge Webb in R. v. Van Helvoort and others, an unreported decision that picks up on this theme. Judge Webb had this to say on the responsibility of the government: [23] More court days can be provided. More judges can be hired. Decisions supporting these needs have not been made.

Unless the appropriate resources are provided, the public, the communities in which we live, will be forced to live with decisions where people facing Criminal Code charges are not held accountable, are not tried on their merits, because they cannot get a trial date within a reasonable time, as is their right pursuant to s. 11(

b) of the Charter . [ 77 ] Judge Webb then goes on to describe the situation as he found it at that time in the Kootenays. A complement of five judges had been reduced to three to serve that entire region. [ 78 ] Finally, I turn to the decision in R. v. Pridy , 2011 BCPC 325 . This is a decision of Associate Chief Judge Gill talking about the constraints currently faced by the Provincial Court in being able to provide timely trial dates. Starting at para. 15: [15] I will now make a few observations regarding those constraints.

It is by now plain to all that the province is significantly short of an adequate complement of Provincial court judges and support staff. As regards this shortage in complement, this is not a newly- developing situation but rather one that has been made known to government for some time. The court's report entitled "Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources" and dated September 14th, 2010, pointed out that the Provincial Court of British Columbia is the only Provincial Court in Canada with fewer judges today than in 2005.

As at the date of that report there were 17 fewer judges than in the benchmark year of 2005. [16] In providing this report to government and to the public, the court made clear its understanding and appreciation that public resources are not unlimited and that this information was therefore provided to assist government in making its decisions regarding appropriate resources. [17] In the approximately 14 months since the preparation of that report, the government has not acted to remedy the aforesaid 17- judge shortfall and complement in any meaningful fashion, and in fact, as at October the 31st of this year[being 2011], the net increase in complement has been less than one full-time judge equivalent.

Here it should be noted that although government did indeed make a number of judicial appointments over the past year, those appointments have been at a level only sufficient to prevent the shortfall from becoming worse due to additional vacancies.

In other words, the appointments have had virtually no net impact on the severe shortage in complement as originally noted, the judicial complement as at September 30, 2010, being 126.3 full-time-equivalent positions, and the complement as at October the 31st of this year being 127.0, an increase of less than one full-time-equivalent judge. [ 79 ] I will interrupt my reading of this quotation to add parenthetically that during the lunch break I spoke to the Chief Judge's office to find out what has happened since Judge Gill's decision which was rendered November 21st, 2011. There have been no new appointments.

There have been three retirements. There have been seven judges who have gone to part-time. Far from even going up by .7 of a judge in the last year, the government despite having up to a year's notice about retirements, has allowed those retirements to happen without any replacements and the complement of judges therefore has been eroded by a further six-and-a-half equivalent full- time judges.

As I said earlier in this judgment, press releases and radio talk shows do not fix that situation. [ 80 ] Back to Judge Gill's judgment: [18] The foregoing statistical information and the report from which it is gleaned is available on the Provincial Court's website. This information is provided in this judgment to provide an appropriate context to the limitation on institutional resources and government's response to it.

I would only add that there have recently been a number of additional judicial appointments at the Surrey Provincial Courthouse; however, those appointments are too recent to have any impact on this case or on the many cases that are already in the system, and pushing at the limits of constitutional delay. In that regard, it should be noted that the backlog of cases experiencing delay continues to grow. Once again, from statistical information available on the court's website, there were, as at March 31st, 2010, 28,867 adult cases pending province-wide.

Of these, 6,894, or 43 percent of them, were cases that have been pending for 12 months or longer, and 2,038, or 13 percent, were pending for longer than 18 months. [19] By contrast, more recently, or as at September 30th, 2011, from a total pending adult criminal caseload of 25,038 cases, the number of cases pending for 12 months or longer has now grown to 7,607, and of even greater concern, the number of cases pending for longer than 18 months has grown to 2,522, or 18 percent of the total. This is a substantial increase in the cases pending for longer than one year.

[ 81 ] At para. 21 Judge Gill wrote: [21] The current delays being experienced in the justice system are not ones that can be described as temporary or unforeseen, nor do they stem from a sudden upswing in case volumes overwhelming the system. Clearly, the cause of the problem is a court with a significant and chronic reduction in complement despite the provision to government of timely and detailed information outlining the shortage, as well as the potential consequences of failing to address it. [ 82 ] It is clear that government has to set priorities for how they spend their resources.

The resources of government are not infinite. There are consequences to every decision. There are consequences when one sets a list of priorities. By definition, a list of priorities starts with the most important and ends with the least important.

There are consequences to decisions and the setting of priorities. [ 83 ] When it comes to the criminal justice system where there has been a clear demonstration of decision making in the setting of priorities and funding that is out of the hands of the judges and properly rests with the government, there are consequences that flow to the people and the institutions responsible for making those decisions, and those at the receiving end live with those consequences. [ 84 ] We may argue that the priorities are right or are wrong, but in the end those are political decisions left to the politicians as representatives of society as a whole. [ 85 ] In this case, I find that there has been both inferred and actual prejudice of a real and significant nature to the accused. [ 86 ] I find that the consequences of the government's decision making and priority setting have meant the creation in this case as in many others of an intolerable delay that offends s. 11(

b) of the Charter . It offends society's right to have these serious matters aired publicly. It offends the very real need as I said at the very start of these reasons of the need to suppress predatory behaviour on the internet. The government has spoken through its actions and the stay which I now enter as the remedy under s. 11(

b) and 24(1) of the Charter is the consequence.