R. v. Amos Date:, 2016 BCPC 33

Citation: R. v. Amos Date: 20160112 2016 BCPC 0033 File Nos: 39619-1, 39619-3 Registry: Gold River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASMINE LEANNA AMOS RULING ON APPLICATION OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: T. Morgan Counsel for the Defendant: S.Runyon Place of Hearing: Campbell River , B.C. Date of Hearing: January 6, 2016 Date of Judgment: January 12, 2016

[1] Jasmine Amos is charged with an assault and a breach of an undertaking alleged to have occurred on December 7, 2014 at ornear Gold River, BC. [2] Ms. Amos’s trial is scheduled to begin on January 15, 2016 and in advance of that trial she applies for a judicial stay ofproceedings on the basis that her right to be tried within a reasonable time has been breached contrary to s. 11(

b) of the Charter. [3] Ms. Amos must satisfy the court, on a balance of probabilities, that her right has been breached. [4] The facts and time line are not contested and are as follows: • December 31, 2014 - Information is sworn • January 9, 2015 - First appearance and request by accused for adjournment to apply for Legal Aid • January 19, 2015 - Second appearance - no counsel yet retained and the accused adjourned the matter again • February 2, 2015 - Third appearance and arraignment. Accused enters a not guilty plea and estimates 5 hours required for trial. • February 2, 2015 - Trial set for June 19, 2015.

Defence counsel available earlier. • June 19, 2015 - Trial adjourned due to lack of court time • June 22, 2015 - New trial date set for January 15, 2016. Defence counsel available at an earlier date. [5] Ms. Amos says the delay begins from February 2, 2015 (second appearance and date of arraignment) to January 15, 2016 (trialdate) which is approximately 11 ½ months. [6] Crown counsel says that to reflect what is often referred to as inherent delay, the court should not count the delay fromFebruary 2, 2015 but rather when both parties are reasonably ready for trial.

He suggests that if a period of 2 months was allowed forthe time for counsel to prepare, the overall period of delay is reduced to 9 ½ months. The Law: [7] There is no disagreement as to the relevant legal principles. I must consider and weigh the liberty and security interests of Ms.Amos reflected in her right to a trial within a reasonable time along with the interests of society in ensuring that those who break the laware tried and dealt with according to the law. In balancing these interests, I must first assess the length of the delay from the date theinformation was sworn until the end of trial.

This is not a mathematical calculation but involves an assessment of the source of the delay,whether there has been any waiver of delay, the reason for the delay including inherent time requirements and, lastly, prejudice to theaccused: R. v. Morin, (SCC), [1992] 1 S.C.R. 771. [8] Ms. Amos submits that she was ready for trial on February 2, 2015, the date of her arraignment and the date the trial wasfixed. She appropriately recognizes that the delay between December 31, 2014 and February 2, 2015 should not be counted as it reflectswhat is often referred to as the “intake period”. Essentially, Ms.

Amos needed time to retain counsel and Crown needed time to providedisclosure. [9] She submits the delay of 11 ½ months from February 2, 2015 to the new trial date of January 15, 2016 is unreasonable. [10] It is important to recognize that while the state does not have unlimited resources, the Court cannot simply allow animpermissible period of delay for that reason.

Accordingly, the Supreme Court of Canada acknowledged that while the amount ofpermissible institutional delay would vary in individual jurisdictions, a period of 8 to 10 months from the date of the information beingsworn to the date of trial has become a well-established guideline for busy provincial courts: Morin, para. 55. [11] Institutional delay is the period that runs when the parties are ready for trial but the system cannot accommodate them. [12] The jurisprudence recognizes that an assessment of delay should reflect the fact that there are inherent time requirements toprepare a case for trial.

The comments of Sopkina, J at para. 41 of Morin are apposite here: Just as the firetruck must get to the fire, so must a case be prepared…the more complicated a case, the longer it will take counsel toprepare for trial…Each case will bring its own set of facts which must be evaluated. Account must also be taken of the fact that counselfor the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should beallowed counsel is well within the field of expertise of trial judge. [Emphasis added] [13] Counsel for Ms.

Amos indicated that she was retained on January 26, 2015 and would have been ready to proceed to trial onFebruary 2, 2015. However, this was the first appearance by Ms. Amos upon retaining counsel and was for purposes of arraignment andsetting a trial date. I am of the view that some period of time must be allocated to preparation for trial and given the lower level ofcomplexity in this case I assess that at 2 to 3 weeks. [14] This brings the period of delay to between10¾ to 11 months. [15] An important factor in applying this guideline is the presence or absence of prejudice.

The period of acceptable institutionaldelay may be shortened to reflect substantial prejudice or also adjusted if prejudice is slight: Morin, para. 53 [16] The guidelines were not meant to be treated as a fixed limitation date in which the court utilizes a mathematical approach to

arrive at a decision. The court must also have consideration for the facts and evidence in the individual case. [ 17 ] In this case, the period of delay is very close to the guideline. However, Ms. Amos asserts that she has suffered prejudice by reason of the delay. She provided affidavit evidence and was cross examined by Crown. The prejudice she alleges is that she has no driver’s licence and it is difficult to travel to Gold River. Secondly, she is concerned that the Ministry of Children and Family Development (the “Ministry”) may discover these proceedings and that this may prejudice her in the future.

Her concern was that the longer the proceedings were delayed, the greater the likelihood the Ministry would find out. She agreed in cross examination that she did not know if they possessed actual knowledge or what would happen if they found out. [ 18 ] It is recognized that some prejudice from delay can be inferred. This includes loss of memory as well as the stress and stigma of pending criminal proceedings. However, prejudice must flow from the delay, not the proceedings themselves. [ 19 ] In my view, the prejudice to Ms. Amos as a result of the delay is minimal.

The difficulty in travelling to Gold River would have arisen regardless of delay. Her trial is scheduled to take place in three days and there was no evidence that the delay to date has caused actual prejudice in her dealings with the Ministry. There was no allegation that Ms. Amos suffered a loss of memory such that the delay was prejudicial.

There was no evidence that she suffered emotional stress as a result of the delay. [ 20 ] The delay caused by lack of institutional resources in this case ranges from 3 weeks to 1 month outside the guidelines suggested by the Supreme Court of Canada. [ 21 ] The minimal prejudice to Ms. Amos brought about by the delay in these proceedings must be balanced with the public interest in bringing those charged with a criminal offence to trial. The modest amount of delay in this case coupled with minimal prejudice is not sufficient to tip the balance in Ms. Amos’ favour. [ 22 ] In the result, I find that Ms.

Amos has not established that her right to a trial within a reasonable time has been breached. [ 23 ] Accordingly, the application is dismissed. BY THE COURT: ______________________________ The Honourable Barbara J. Flewelling