R. v. Nuttall Date:, 2011 BCPC 344

Citation: R. v. Nuttall Date: 20110624 2011 BCPC 0344 File No: 89217-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GORDON JAMES NUTTALL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. DONEGAN Crown Counsel: N. Flanagan Defence Counsel: R.

Hewson Place of Hearing: Kamloops, BC Date of Judgment: June 24, 2011 [ 1 ] THE COURT: Giving my reasons from the bench directly after argument on this application may result in my reasons not being as eloquent as I would like, but I have heard full argument today by both counsel. [ 2 ] I have in front of me a book of authorities and two additional cases. I have fully considered all ten cases in Mr. Hewson's book of authorities in addition to the two cases that were provided outside of the book of authorities today. [ 3 ] Mr.

Nuttall is charged with impaired driving and driving while over point zero eight, contrary to s. 253(1) (

a) and (

b) of the Criminal Code , arising out of events that occurred on December 13th, 2009. He, through his counsel, has today applied under s. 24(1) of the Canadian Charter of Rights and Freedoms for a judicial stay of proceedings on the grounds that his right to be tried within a reasonable time under s. 11(

b) of the Charter has been violated.

Section 11(

b) of the Charter reads as follows: Any person charged with an offence has the right (

b) to be tried within a reasonable time. [ 4 ] The Supreme Court of Canada in R. v. Morin , which is found at Tab 1 of the book of authorities, defined the purpose of s. 11(

b) this way: The primary purpose of s. 11(

b) is the protection of...individual rights of [the] accused...A secondary interest of society as a whole has also [however] been recognized... [ 5 ] A

summary of this portion of R. v. Morin is referred to in R. v. Ayers found at Tab 6 in the book of authorities at paragraph 14 where the Supreme Court of Canada is quoted as saying: The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which results in pre-trial

incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take placewhile evidence is available and fresh. Society as a whole has an interest in seeking (sic) that the least fortunate of its citizens who are accused of crimes are treated humanelyand fairly. In this respect, trials held promptly enjoy the confidence of the public. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. [6] As I say, the leading case in this area still remains R. v.

Morin, where the Supreme Court of Canada outlined, at paragraph 31, thefactors the court should consider in an application such as this. There the court said: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. thelength 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 the delay, and 4. prejudiceto the accused. [7] Paragraph 32 goes on to say: The judicial process referred to as balancing, requires an examination of the length of the delay and its evaluation in light of the otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable, and coming to this conclusion accountmust be taken of the interest which s. 11(

b) is designed to protect. [8] I turn first to the length of the delay. I have been provided with a very helpful chronology which has been filed as Document 1 inthis application. The Crown agrees, and the record of proceeding does reflect, that this is an accurate chronology. The information charging Mr. Nuttall with these two offences was sworn on January the 6th, 2010. A fairly standard delay until January 28th occurred asa result of one initial appearance a day after the information was sworn, where Mr. Nuttall quite properly adjourned his case to receiveand review the disclosure.

He had his arraignment on January 28th, 2010, where his not guilty plea was recorded and the matter wasadjourned to fix a date for his trial. [9] The dates were fixed on February 4, 2010 - for a trial confirmation hearing first on September 2, 2010, and then a trial date ofOctober 8, 2010, a delay of roughly eight months. The trial confirmation was held on September 2, 2010, where the trial was confirmed. [10] On October the 8th, and I have transcripts of all of these hearings, Mr. Nuttall's trial had to be adjourned for lack of court time.

The court list that day had been overbooked and there simply was not time for his matter to be heard. The case was adjourned toOctober 13th to fix a new date for trial and the new date that was fixed for trial was today, June 24, 2011, a delay of more than 17months, approximately seventeen-and-a-half months since the information was sworn. [11] Now I look at reasons for the delay. Waiver of Time Periods [12] I have not heard from counsel that there is any argument about this. I find that there has been no waiver of time periods by Mr.Nuttall.

Inherent Time Periods [13] This case, from what I understand, is relatively straightforward. The time estimated for the trial was three hours which is onehalf day. This is an appropriate time estimate. Limits on Institutional Resources [14] The Morin decision provided a guideline of eight to ten months in respect of institutional delay. I am mindful of the SupremeCourt of Canada's qualification in that this period is not absolute and does not certainly fix any rule that must be strictly followed. Wehave to apply it on a case by case basis.

However we are, in this case, well beyond the eight to ten month guideline, as I say, someseventeen-and-a-half months. [15] In the case law that I have been provided, including R. v. Minhas, a decision of the Honourable Judge McGregor out of Surrey,2001 BCPC 115 , 2001 BCPC 0115, I see that various judges throughout the province of British Columbia have addressed theinherent delays that the public sees within the Provincial Court of British Columbia over the last several years. [16] At paragraph 9 of Minhas, Judge McGregor refers to a decision of Judge Gulbransen - R. v. Moskal.

At paragraph 24 of hisdecision, Judge Gulbransen wrote: There are not enough judges, court staff or sheriffs in Surrey. The shortages are not the result of drastic cuts but the result of attritionfrom gradual budget reductions. The delay has built up gradually and has had little effect so far. Now, however, the backlog is so greatand the courts are so overcrowded, that there will be unreasonable delay should there be even one adjournment of a trial date. TheProvincial Court cannot expect to be immune from necessary budget cuts or spending restrictions in the face of an economic crisis.

But,the Supreme Court of Canada has made it clear that the time will come when the courts can no longer accommodate an explanation forlengthy institutional delay that there is just no money for the court system. In Surrey, that time has come.

[17] There are similar comments by Judge Webb in R. v. Van Helvoort and others, an unreported decision found at Tab 4 of the bookof authorities. Judge Webb had this to say in respect of this issue: [23] More court days can be provided. More judges can be hired. Decisions supporting these needs have not been made. Unless theappropriate resources are provided, the public, the communities in which we live, will be forced to live with decisions where peoplefacing Criminal Code charges are not held accountable, are not tried on their merits, because they cannot get a trial date within areasonable time, as is their right pursuant to s. 11(

b) of the Charter. [24] I was appointed as a judge in 2004. Prior to my appointment, the Kootenays had five Provincial Court Judges. In 2004, thatnumber was reduced to four. The delay in getting a matter to trial has increased from four to six months in 2004, to 12 months or more in2009 and 2010. In January 2010, one of the four Provincial Court judges in the Kootenays retired. His decision to retire was announcedmore than six months prior to his retirement.

Knowing this, the position has not yet been filled. [25] Backlogs have increased, days are hopelessly overbooked, matters take a year or more to get a first trial date. They often do notproceed on the first trial date. Knowing this, we are left with three judges in an area that functioned well with five. [26] Resources have been cut. There are fewer court staff, fewer sheriffs, fewer judges. Institutional resources are not beingprovided. Staffing in Golden has recently been reduced as a result of a retirement. One of the two people working at the Golden courtregistry is retiring.

There are no plans to replace her. [27] I am mindful that in a first-year political science course I learned that government’s responsibilities extend beyond the bottomline. The courts have a cost attached to them. Decisions made to reduce that cost, to save money, may result, as is the case here, incriminal charges being dismissed without any inquiry into their merits. That is what occurred yesterday. Three impaired driving trialswere stayed, without any inquiry into the merits of the cases. [28] From the court’s perspective, this type of resolution is disappointing. Impaired driving is a serious matter.

Persons charged withimpaired driving should be held accountable. [29] However, we live in a society where all of us, including those charged with criminal offences, have rights enshrined pursuant tothe Charter. One of the rights, a trial within a reasonable time, has not been protected. The institutional resource, trial time, has not beenprovided. So long as that remains the case, the state ought to expect more decisions of this nature. [18] Judge O'Byrne made similar comments in his jurisdiction at the next decision in the book of authorities at Tab 5, R. v.Ollenberger, 2010 BCPC 93.

Starting at paragraph 20 he states: The events I have heard about in regard to this case are, in part, reflective of the fact that the judicial resources in the Cariboo/Northeastare not what they should be. The number of Provincial Court judges in the Province of British Columbia in 2005 and 2006 was 143. In2010 to 2011 it is 124.5, and the number of cases entering the system is growing. He goes on to talk about times to get to trial within that jurisdiction, clearly outside of the guidelines established in Morin. [19] There are similar comments by Judge Threlfall in the case of R. v.

Dunn found at Tab 10 of the book of authorities, an unreporteddecision out of the Salmon Arm registry, which is quite near to Kamloops. Judge Threlfall writes at paragraph 21 of his decision: I am satisfied on balance that the prejudice to Mr. Dunn arising from the delay in bringing this matter to trial is now established and hisright to a fair trial would be at risk if the matter proceeded. In my view, the failure of government to provide sufficient resources toallow a straightforward matter of this sort to be heard within a reasonable period of time should not be visited on Mr.

Dunn. [20] In the case before me, I deem the time from when the information was sworn on January 6, 2010, until the present day, Mr.Nuttall's scheduled second trial date of June 24, 2011, some seventeen-and-a-half months, to be unreasonable in the circumstances. [21] I turn to prejudice of the accused. Having found the delay in this case to be unreasonable, I must consider whether or not Mr.Nuttall has suffered prejudice that is real and significant in order to invoke the court's power under s. 24(1) of the Charter, to direct ajudicial stay of proceedings.

I am mindful of the Supreme Court of Canada decision in Godin which has been referred to by both counseland provided at Tab 2, 2009 SCC 26 , [2009] S.C.J. No. 26, which makes it clear that a court can infer prejudice as a result of adelay that is unreasonable. [22] In addition to the inferred prejudice, I also have me before me the affidavit of Mr. Nuttall as document 2 in this application. I doaccept Mr. Flanagan’s point with respect to the loss of Mr. Nuttall's job. It is clear from the affidavit that Mr. Nuttall did lose his job as aresult of being charged with this matter.

He had to inform his employer, which in December of 2009 was Hyundai, where he worked asa car salesman, of the charge of the 90 day driving prohibition that he received and of the possibility of a further driving prohibition. Asa result, the employment was terminated. He was unable to secure employment for a period of five months. That, while obviously isprejudicial to Mr. Nuttall, is not the result of any delay in these proceedings. [23] After five months, Mr. Nuttall was able to secure employment as a sales person at Kamloops KIA.

The job that he was able toobtain netted approximately $700 less per month than his previous employment. This income loss has been protracted as a result of theongoing delay in this case. As he stated at paragraph 6, other positions had become available to him for which he would be qualified,such as account manager, but given the uncertainty in this court case and uncertainty of his future, he has not been in a position to applyfor those jobs due to the travel involved. That is prejudicial to him. [24] Mr.

Nuttall also swears at paragraph 7 of his affidavit that he has been caused ongoing stress as a result of embarrassment. Nowthis is the first time he has been charged with a criminal offence. He has had to discuss the matter with his current employer. Heindicates that the stress and anxiety of having this matter go unresolved for so long has affected him significantly. It weighs heavily onhis mind all the time. This seems to be a fairly common theme running throughout the cases and I do not doubt that any accused person

that is charged with a crime feels these things. Feeling them, in and of themselves, is not prejudicial but having them protracted over an unreasonable period of time is prejudicial. [ 25 ] Mr. Nuttall further outlines that his recollection of the event is diminished as more time goes by. He believes the same would be true for other witnesses. In fact, this is the case here, which I will refer to shortly. He writes at paragraph 8: Due to the significant amount of time that has passed, I believe my ability to defend myself at the trial has suffered.

My memory of the incident in question has faded and I'm uncomfortable with the prospect of cross-examination should I testify on my own behalf. If I cannot remember details, I am afraid I will not appear to be a credible witness. [ 26 ] This is a prejudice as well. The cases clearly reflect that fading memories of witnesses over time does occur and can be prejudicial to the accused. In this case there is additional information that has been brought to my attention. The investigating officer, Constable -- [ 27 ] MR.

FLANAGAN: Manson. [ 28 ] THE COURT: Manson, thank you; wrote in his report to Crown counsel which was written on the date that these allegations arose, that he spoke to a civilian witness at the scene of what occurred and that civilian witness whose name escapes me at the moment, but that civilian witness told him at the scene that he did not see Mr. Nuttall occupy the driver's seat of the vehicle in question nor did he -- no, I am going to actually take a step back. [ 29 ] The Crown advised me that the officer wrote in the narrative that he asked the witness if he had witnessed the accident.

The witness said he did not; he arrived to find Mr. Nuttall out of the vehicle, stumbling in the roadway out of the ditch. The civilian witness has indicated in a statement some weeks later, perhaps two weeks later, that he had a clear recollection of finding Mr. Nuttall in the driver's seat. In fact he recalled removing Mr. Nuttall's seatbelt and assisting him. I am told that the civilian witness has advised the Crown that he still has this clear recollection. [ 30 ] Mr.

Hewson stresses and I accept, that today the officer has advised both counsel that due to the passage of time, he no longer has an independent memory of the conversation that he had with the civilian witness on the day of the events. The defence will of course seek to cross-examine the witness about a prior inconsistent statement and with the absence of the officer's recollection as to the circumstances of that statement, I find that Mr. Nuttall has the distinct possibility of being prejudiced in his defence. [ 31 ] Mr.

Nuttall also points to the protracted nature of these proceedings as increasing the cost to him, more than he originally budgeted for. He has had to pay additional expenses for travel, his counsel's trial preparation, cost of transcripts, and of course legal fees. [ 32 ] In the Kamloops jurisdiction approximately three years ago, a case of this nature, a relatively straightforward - as straightforward as they can be - impaired driving and over point zero eight case set for half a day, would take roughly five months to get to trial.

As of today, the same half day matter will be scheduled between 10 and 11 months down the road. The delay in this jurisdiction has been steadily increasing over the last few years. This jurisdiction has less judges now than it did a few years ago. [ 33 ] The Access to Justice report that came out publicly in the fall of 2010 made it very clear that the number of judges in the Province of British Columbia has gone down since 2005; the only province across Canada in which the number of judges has decreased.

In addition, the number of prosecutors in this province, including Kamloops, has been decreased. [ 34 ] Prosecutors are not being replaced. We are all aware of the shortage currently with sheriffs. We are all aware of the shortage currently with court clerks. These shortages are as obvious and as troubling in Kamloops as they are, I am sure, elsewhere in the province. [ 35 ] The average trial day in Provincial Court in Kamloops, which has five point five hours available to it, is typically overbooked in the range of 10 to 15 hours of trial time being set.

This routinely means that cases have to be adjourned and, as many other Provincial Court Judges have found across the province, this simply is not acceptable and has resulted in the delay of a number of criminal cases. [ 36 ] As I have outlined, I find that Mr. Nuttall has suffered real and significant prejudice as a result of this delay. It is, as other judges have remarked, unfortunate that this case will not be heard on its merits.

There is a high public interest in having these cases adjudicated on their merits, but courts must balance that interest against the accused's right to have a trial within a reasonable time. [ 37 ] In this case, I find that Mr. Nuttall's s. 11(

b) rights have been violated. As a result, I direct a judicial stay of proceedings in respect of both counts, pursuant to s. 24(1) of the Charter . (REASONS CONCLUDED)