R. v. REN Date:, 2014 BCPC 310

Citation: R. v. REN Date: 20140902 2014 BCPC 0310 File No: AH76739055 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YI RAN REN RULING ON APPLICATION OF THE HONOURABLE JUDGE P. CHEN Counsel for the Crown: S. Swift Counsel for the Defendant: K. McCleery Place of Hearing: Richmond , B.C. Date of Judgment: September 2, 2014

[ 1 ] THE COURT : This is an application under s. 11 (

b) of the Charter of Rights and Freedoms for a judicial stay of proceedings on a traffic ticket for Ms. Ren on the ground that her right to a trial within a reasonable time has been breached. I thank both Crown and defence counsel for their able submissions and the case law that has been presented. There is common ground between them that the test for finding a breach that could lead to a stay of proceedings under s. 11(

b) of the Charter really is those tests set out in the case of R. v. Morin , being the length of delay, any waivers, the reasons for the delay and prejudice to the accused. [ 2 ] With respect to the length of delay, there is a difference between the Crown and defence positions. Defence has taken the position that the length of the delay is the 22 months from the date of the issuing of the ticket to today's date. Defence counsel did provide a case in which no intake period was allowed. That was the case of my brother Judge O'Byrne, as he then was, in Pederson .

Although he rejected the two-month intake period, he did not really state the reason for that rejection and I am persuaded by the reasoning in other cases that a two-month intake period is reasonable. The accused has 30 days to file a notice of dispute. I am not sure how long Ms. Ren took to file her notice of dispute, but I am satisfied that on top of the 30-day period, that the state should also be allowed a similar period of time to put in motion the steps that would lead this matter to a trial. Because of that, I am persuaded a two- month intake period would be justified.

That would reduce the period of delay to 20 months. [ 3 ] I am satisfied that there have been no waivers, so that is not an issue. [ 4 ] With respect to the reasons for the delay, I am also in some agreement with Crown's position that if there is going to be an application under s. 11(

b) of the Charter , that is the right, of course, of the accused to make such an application; but that application could have been made earlier and we do not know if a date earlier or later than the May 5th date when this matter appeared before a Judicial Justice could have been obtained or not. So that would reduce it to some 18 months, less the two months intake would be 16. So it is between 16 and 20 months, in any event. [ 5 ] The thorny issue, to me, is that of prejudice. I have been presented with some cases that have cited both the case of R. v.

Morin and the case of Godin , both Supreme Court of Canada cases, for the principle that prejudice can be inferred from the length of delay. That was also stated at paragraph 28 of Pederson . Paragraph 28 stated: “The last point then is prejudice to the accused, and this is perhaps the most telling point. In all of the cases that have been provided to me, not one of them refers to the decision of Mr. Justice Cromwell in R. v.

Godin . . . where, quoting from the headnote: 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 that such an inference will be drawn.” [ 6 ] After looking at that case and the other cases provided by defence, I found that I was still wrestling with the question of what is inferred prejudice, how do you infer prejudice, what does that really mean? Can we just say, well, it is too long, I am inferring prejudice?

It seemed to me that something more was required in that analysis. During the break, I was able to locate a case from our Court of Appeal, R. v. Jasmohan Singh Bains . Reasons for Judgment were provided by Madam Justice Smith and it was a unanimous decision with Chief Justice Finch and Madam Justice Prowse concurring. This is going to be a little bit lengthy, but I think it provides quite a nice analysis of the question of inferring prejudice. I begin at paragraph 61 and it goes right through to paragraph 65.

I am quoting now: “While in this case it would have been better for the trial judge to have begun his analysis by recognizing that prejudice could be inferred from the length of the delay , that oversight could not, in my view, have changed the result. As was noted in Morin at 802, “[a]part ... from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding.” Therefore, even where prejudice may be inferred, a court is not obliged to find that it existed if the inference would be inconsistent with the other evidence.

Moreover, as part of the final balancing of interests, the court must examine the extent to which any prejudice, inferred or actual, has impacted the three interests protected by s. 11(b). Here, the appellant did not point to any evidence that might have demonstrated how the delay in fact prejudiced his ability to make full answer and defence. The appellant’s liberty interest was impacted by the strict daily reporting provision for the first month of his judicial interim release and some prejudice can be inferred from that restriction.

However, that prejudice was minimized when the term of his release was substantially relaxed to a monthly reporting provision for the remaining 44 months of the delay period. The appellant’s security of the person interest was also affected by the delay . However, the prejudice from having a criminal charge outstanding is, in the absence of evidence, no more than the stress and cloud of suspicion that accompanies the laying of a criminal charge against any accused.

It is the third interest, namely the risk of prejudice to the appellant’s right to make full answer and defence that, in my view, distinguishes this case from the circumstances in Godin.” [ 7 ] And of course, Godin is the case that was cited in Pederson , but only a few lines from the headnote. Continuing with the citation from the Bains case:.. “Godin involved a 30-month delay between the date the accused was charged and the date set for trial. The accused was charged with sexual assault and the credibility of the complainant was the central issue.

The Crown initially proceeded summarily and a trial date was set in provincial court to commence nine months after the accused was charged. Four days before the start of the trial, the Crown disclosed to the accused a forensic report that indicated the DNA sample taken from the complainant did not match that of the accused. No explanation was given for the late disclosure of the report. The Crown and defence agreed to have the Crown proceed with the charge by indictment to give the accused the opportunity to explore the complainant’s evidence. A preliminary hearing date was set for a year later.

No explanation was provided for the delay in setting that date. The trial occurred nine months after the preliminary inquiry. Five months before the trial, the accused brought a s. 11(

b) application. The circumstances of this case were significantly different in terms of prejudice. Godin involved prejudice from the nature of the evidence which would likely deteriorate over time and from the late disclosure of exculpatory evidence. The nature of the evidence in this case was from authorized wiretap and search warrants that were in an enduring form. The passage of time would not have affected

the reliability of the evidence, and if admissible, would likely result in a conviction. In short, the risk of prejudice to the appellant’s right to make full answer and defence was minimal. While some prejudice can be inferred from the prolonged delay , it did not extend beyond what most accused individuals experience when faced with criminal proceedings. When examined in the context of the interests that s. 11(

b) is meant to protect, there was minimal risk of prejudice to the appellant from the delay and the trial judge’s finding of no actual prejudice has not been challenged in this appeal. That lack of actual prejudice, in these circumstances, undermines the appellant’s claim of prejudice in support his alleged s. 11(

b) Charter infringement.” That is the end of the citation. [ 8 ] Of course, in the case at bar, there is no argument that there was actual prejudice. There was no evidence from the accused. The accused's sole argument really stems from inferred prejudice. [ 9 ] I find the reasoning in the Bains case to be very helpful and instructive in terms of how the court really should set about in doing this analysis of inferring prejudice. It is really finding whether or not there is prejudice to the Charter rights, the interests that s. 11(

b) is meant to protect. In my view, there has not been sufficient evidence of the prejudice to those interests that s. 11(

b) was meant to protect. Accordingly, whatever inference of prejudice I might find inherent in the length of delay itself is insufficient, in my view, to support a stay of proceedings. A stay of proceedings is the most drastic remedy the court can apply. In my view, it should be resorted to rarely. The circumstances of this case, in my view, do not support that. Accordingly, I must dismiss the application. (RULING CONCLUDED)