R. v. Yanko Date:, 2012 BCPC 453

Citation: R. v. Yanko Date: 20121227 2012 BCPC 0453 File No: 74027 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARK YANKO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: N. Lerfold Counsel for the Accused: S. Tessmer Place of Hearing: Kelowna , B.C. Date of Hearing: 21 December 2012 Date of Judgment: 27 December 2012 I. INTRODUCTION

[1] The accused is charged with producing marihuana and possessing marihuana for the purpose of trafficking. This is his pre-trialapplication for a judicial stay of proceedings based on an argument that his s.11(

b) Charter right to a trial within a reasonable time hasbeen violated. II. THE FACTS [2] On December 7, 2010 police executed a search warrant in a Lake Country residence in which the accused was present. Thehome was a marihuana grow residence where five rooms were dedicated to the operation. Police seized 341 marihuana plants, 2.8 kg ofmarihuana. [3] The accused almost immediately obtained a lawyer and that lawyer started requesting Crown disclosure by way of a letterdated December 13, 2010. Partial particulars were provided prior to the first court appearance on February 10, 2011.

The Arraignmenthearing was held March 21, 2011, when the accused elected provincial court and pled not guilty. Counsel agreed that the trial wouldtake two days. There remained some disclosure issues (the ITO for the search warrant needed to be unsealed, vetted and disclosed), butcounsel agreed that the disclosure would be happening in due course and it would not change the time estimate for trial.

The judicialcase manager, following the local protocol (when trials will take two or more days), directed that there be a pre-trial conference beforethe trial date would be fixed. [4] Eventually, after the first pre-trial conference, disclosure was completed April 20, 2011. The second pre-trial conference datewas May 24, 2011 and on May 31, 2011 a 2.5 day trial was set to start on June 4, 2012.

This first trial date was 18 months after thealleged offence, 14.5 months after arraignment (when the not guilty plea was entered and the trial date was sought), and nearly 12.5months after the last pre-trial conference. [5] Unfortunately, due to no fault of the accused or the crown, the trial did not go ahead on June 4, 2012 because the court hadsubsequently overbooked that date to accommodate a more urgent matter involving an accused who was in custody. [6] The second trial date is set to commence January 8, 2013, which is 25 months after the alleged offence, 21.5 months afterarraignment, and nearly 19.5 months after the last pre-trial conference. [7] Both lawyers agree that no fault can be found with the accused causing any of this delay.

For that matter, little if any fault canbe found with the crown causing the delay. Perhaps a month or two awaiting for the crown to apply to get an Unsealing Order for theITO, but even with that disclosure issue not fully resolved, counsel were ready, willing and able to fix a meaningful trial date from thedate of arraignment and it was the court systemic delay thereafter. [8] Both sides were ready, willing and able to get a much earlier first trial date, but there were insufficient judicial resources tohave the matter heard on the first trial date.

Institutional delay is the period that starts to run when the parties are ready for trial but thesystem cannot accommodate them. In this case the parties were ready to fix a trial date at the time of the arraignment, but in the endthere was a 21.5 month institutional delay. III. THE LAW [9]

Section 7 of the Charter gives everyone in Canada the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice.

Section 11(

b) of the Charter gives every personcharged with an offence the right to be tried within a reasonable time. [10] In R. v. Askov (SCC), [1990] 2 S.C.R. 1199 a guideline of between 6 and 8 months for institutional delay wasgiven. As a result of the court placing stricter limits on acceptable trial delays, over 47,000 charges were stayed in Ontario in the yearfollowing the Askov decision. That was the direct result of an era in Ontario where the administration of justice faced both dwindlingresources and a burgeoning case-load. [11] Two years later, in R. v.

Morin (SCC), [1992] 1 S.C.R. 771 the Supreme Court of Canada revisited the Askovissue in an impaired driving case where there was a 14 ½ month delay between arraignment and trial. In finding that the delay hadinfringed the right of the accused to a trial within a reasonable time the, court suggested guidelines for trial judges to consider forreasonable institutional delay for trials.

The court emphasized that there is no mathematical or administrative formula, but there is to be ajudicial determination, balancing the interests which the Charter is designed to protect, against factors which either inevitably lead todelay or are otherwise the cause of delay. The four factors to be considered include: 1. The length of the delay from charge to trial; 2. Any 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 [12] In Morin, the highest court in the land profoundly wrote: How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarceresources? While account must be taken of the fact that the state does not have unlimited funds and other government programscompete for the available resources, this consideration cannot be used to render s.11(

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

Thisperiod of time may be referred to as an administrative guideline. I hasten to add that the guideline is neither a limitation period nor afixed ceiling on delay. Such a guideline was suggested in Askov and was treated by some courts as a limitation period. I proposetherefore to examine in some detail the purpose of a guideline commencing with an examination of its role in Askov.... In Askov, Cory J., after reviewing comparative statistics suggested that a period in the range of six to eight months between committaland trial would not be unreasonable.

Based on the foregoing, it is appropriate for this court to suggest a period of institutional delayof between eight and 10 months as a guide to Provincial Courts. [13] In R. v. Nguyen [2010] O.J.

No 1340, Judge Wright wrote in paragraph 23: If it is important to our society that drug producers and drug dealers are located, and if it is important to our society that police areproperly equipped with sufficient manpower to investigate and charge those drug producers and drug dealers who are responsible, and ifit is important to our society that there are enough Crown counsel to prosecute these drug producers and drug dealers, then it isincumbent upon our senior levels of government to invest sufficient resources in our courts and in our judiciary to ensure that suchpersons will be brought to trial in a reasonable period of time.

Defendants are guaranteed that right. Our society is entitled to nothingless. [14] The Supreme Court commented in R. v. Godin, (2009), 2009 SCC 26 , 245 C.C.C. (3d) 271 at paragraph 31: The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. Wrote in Morin, even in theabsence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay.

The longer the delay the more likelythat such an inference will be drawn.” Here [as in the instant case], the delay exceeded the ordinary guidelines by a year or more, eventhough the case was straightforward. IV. ANALYSIS [15] Since the 8 – 10 month institutional delay guideline suggested by the Supreme Court of Canada in Morin, courts throughoutCanada have dealt with many cases where “delay” Charter arguments have been advanced. Counsel for the Crown and counsel for theaccused have both cited many such cases. My overall impression is that over time, the courts have allowed longer and longerinstitutional delays.

This is primarily because judges, just like members of the public, want important criminal charges, as much aspossible, to be dealt with on the merits of the case, and not on a Charter application based on unreasonable delay. Even the initial trialdate in the case at bar was outside the 8 to 10 month guideline range suggested by the Supreme Court. [16] The judicial resources in the Provincial Court of British Columbia are divided between criminal cases, family cases and civilcases. The court must allocate sufficient time for all three.

In the Okanagan, 60% of those judicial resources go to criminal court, 25%to family court and 15% to civil court. Given the limited judicial resources, in an effort to have criminal cases heard within a reasonabletime, criminal trial courts are frequently triple booked at the time of arraignment, anticipating that there will be some collapse rate priorto trial date. If on any given trial date all of the trials still proceed, the court tries to accommodate this by way of moving files betweencourtrooms.

However, far too frequently, no such accommodation can be made and matters deemed lower in priority get adjourned tofix another trial date because of insufficient court time. That is exactly what happened in the case at bar. As significant as this matter is,it was not as high in priority as the matter that proceeded on the first trial date with an in-custody accused. [17] One might think the easy resolve of the issue is to then give the matter an expedited second trial date. If at all possible that isdone. However, it will need to be scheduled on a date that is already triple over-booked.

The result is that the second trial date is oftenrequired to be set far enough down the road to be on a trial date when it will be first in priority. Again, that is what happened in the caseat bar. Ultimately there is a 21.5 month institutional delay (from the time counsel sought a trial date) until the time there are sufficientjudicial resources for the trial to be heard. [18] What is the reason the Charter guarantees that a criminal trial happen within a reasonable time? In Canada we claim anaccused is innocent until proven guilty. We believe in a fair trial process.

The longer trials take to be heard, the more likely it is thatwitnesses will have less recall of events to which they testify. The case at bar is a circumstantial case where the Crown believes they can

prove the accused had control of the grow operation. That circumstantial evidence does not get better with time. [ 19 ] We as a society also understand that the trial process is stressful for all involved, and this is particularly true for an accused. Often an accused has his/her regular life on hold pending the outcome of the trial.

In the case at bar the accused, in addition to complaining of being unable to sleep normally, the accused claims he has lost 70% of his work in the Okanagan since he was criminally charged, and he keeps paying increased legal fees for a lawyer that is required to book trial time on two separate occasions given the trial did not proceed on the first scheduled trial date.

The accused is a hunter and he has applied to have his bail condition varied to allow him to possess a gun for hunting purposes. [ 20 ] When a trial happens 25 months after the alleged offence and 21.5 months after arraignment (when both counsel are seeking a trial date), in circumstances where there is nothing unusual or complicated about the evidence to be presented at the trial, most would agree that the Charter right to a trial in a reasonable time has been infringed.

This is particularly true, as in the case at bar, when there has been no waiver of time periods and no actions of the accused or the crown contributing to that delay. This 21.5 month delay from arraignment is singularly caused by insufficient judicial resources. Even where actual prejudice is minimal, as stated in Godin , prejudice may be inferred from this lengthy a delay. This 21.5 month delay is a far cry from the 8 – 10 month guideline recommended by the highest court in the land. [ 21 ] In

summary, I again repeat the earlier mentioned quote from the Supreme Court of Canada in Morin : 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. [ 22 ] Unfortunately, it can’t be said that this trial will be heard within that reasonable time required by the Charter . In this case, the 21.5 month delay from arraignment to trial is a sufficient length of time that prejudice ought to be inferred. V. DECISION [ 23 ] Pursuant to s.24 of the Charter , I now issue a judicial stay of proceedings in this matter. _______________________ R.R. SMITH, P.C.J.