R. v. Mecham Date:, 2017 BCPC 203

Citation: R. v. Mecham Date: 20170620 2017 BCPC 203 File No: BC901099 Registry: Bella Coola IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. DEAN OTIS ORDEN MECHAM EXCERPTS FROM PROCEEDINGS RULING ON DEFENCE APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS OF HONOURABLE JUDGE B. HOY Counsel for the Crown: J. Cryder Counsel for the Defendant: D. Carpentier Place of Hearing: Bella Coola , B.C. Date of Hearing: June 20, 2017 Date of Judgment: June 20, 2017 [ 1 ] THE COURT: The accused's application for a judicial stay is granted as his rights to a trial within a reasonable time was

[1] THE COURT: The accused's application for a judicial stay is granted as his rights to a trial within a reasonable time wasviolated contrary to s. 11(

b) of the Charter of Rights. These are my reasons. [2] Mecham was charged with nine counts of various offences contrary to the Wildlife Act, R.S.B.C. 1996, c. 488. The offencesoccurred on November 14th and December 5th, 2012, in Bella Coola. Briefly stated, they involved unsafe hunting for deer duringprohibited hours on a farmer's field and the use of unsuitable rifle cartridges. [3] The investigation was completed on December 6th, 2012, after the defendant had given an inculpatory statement. TheInformation was not sworn until October 28th, 2015.

Trial dates of June 22nd and 23rd, 2017, were scheduled in Bella Coola. More trialtime may be required if an Aboriginal rights claim is made, but that is uncertain and no notice has been given. The total delay is 19months and 26 days. Presumptively, this is contrary to the 18-month ceiling set out in R. v. Jordan, 2016 SCC 27 , [2016] 1S.C.R. 631. The Crown acknowledged there are no exceptional circumstances establishing the reasonableness of the delay beyond theceiling. [4] The next part of the analysis turns to whether the defence waived or caused the delay.

In this instance and for context whatoccurred prior to the charges being formally laid is also outlined. At the initiative of the conservation officer in December 2012 stepswere taken to have this matter referred for alternate measures. He met with the Nuxalk Band to discuss this prospect. The Band thenattempted to communicate with the defendant, but without success. As one reviews Appendix A of the defendant's application, it is quiteplain that the progress of this proposal was poor.

It is also fair to say the defendant did not engage in the process. [5] After about a year had elapsed, it was decided on November 16, 2013, that a Report to Crown Counsel would be prepared. This was completed on March 27, 2014. Nineteen months later, the Information was sworn on October 28th, 2015. This would havebrought the three-year limitation period for this offence within about one-and-a-half months before expiration. The defendant's firstappearance was December 1st, 2015. [6] As early as January 8th, 2016, the defence requested from the Crown that alternate measures again be considered.

It is aprocess that requires the Crown to facilitate the referral. There is some conflict as to whether it is first made to the Restorative JusticeWorker of the Nuxalk Nation and from there to the Crown or the reverse and then to probation. Regardless of the specific process, it isone that is driven by the Crown and ultimately their approval of any plan that might be recommended.

A review of the progress of thereferral establishes that the defence continually asked the Crown the status of the referral over several remand dates, but for whateverreason, it was not confirmed or declined by the Crown. [7] As circumstances evolved, the defendant was detained on other matters on June 15th, 2016, and later released on July 22nd,2016. The result was any restorative measures were made moot.

On October 17, 2016, trial dates of June 21st and 22nd, 2017, were set. [8] The Crown advises that from notes made September 8th, 2016, pursuant to a telephone conversation with the probation officerin Williams Lake, she had received a referral for restorative justice for the defendant and a meeting was set up, but it did not occur. Thedate of the referral is unknown nor the reason why the meeting did not occur. [9] As I weigh what transpired, I find that the defence did all they could to move the process towards the prospect of alternativemeasures. This is distinguishable from R. v. Trinh,

(2016) S.K.Q.B. No. 376, where the matter was delayed due to plea negotiations. Plea negotiations is an implicit waiver. It requires both Crown and defence to engage in the process. In the case at bar, the situation isdistinctly different as the Crown must put into place the process for review of possible alternative measures. Negotiations are not part ofthe process. There is simply acceptance or rejection of any proposal first by the Crown and then the defence. [10] The submission that the defence acquiesced in the process has not been established.

A review of the transcripts from themultiple adjournments confirms her sustained efforts to pursue alternative measures as an option. This is not a situation of defenceinaction in the process. In these circumstances, I do not find there has been any waiver of time by the defence. [11] The presumptive ceiling of 18 months has been exceeded. As this is a transitional case, a further inquiry is required with theframework of R. v. Morin, (SCC), [1992] 1 S.C.R. 771, to be considered while keeping in mind R. v. Jordan, 2016 SCC27 , [2016] 1 S.C.R. 631, in determining whether the delay was unreasonable.

The type of analysis undertaking at this junctureis instructively set out in R. v. Dass,

(2016) B.C.S.C. 1701, with these words at paragraph 80: I do not understand Jordan and Williamson to say that it is enough to refer back to a Morin analysis to determine whether, if anapplication for a stay based on delay had been brought before Jordan, it would not, or might not have succeeded. If that were all thatwas required, the Court would have said so, and a transitional exceptional circumstance would be unnecessary.

It is important toremember that the Court in Jordan saw the need to establish a presumptive ceiling to post-charge delay in order to deal with what itcalled a “culture of complacency” that had diluted the effects of Askov and Morin (at paras. 40 and 41). To repeat, the question to bedecided under the transitional exceptional circumstance is whether the Crown has shown that the time taken is justified, based on theparties’ reasonable reliance on the law as it developed between Morin and Jordan. [12] This was further emphasized in R. v. Cody,

(2017) S.C.C. 31. The assessment of transitional exceptions requires one to bemindful of the Morin elements which is to be done contextually; that is, was there prejudice, what is the seriousness of the offence, andare there institutional delays. All of which is weighed with an evaluation of counsel's diligence in expediting the process to determinewhether the delay was unreasonable. [13] In Cody, the court, in review of their decision in R. v. Williamson, 2016 SCC 28 , [2016] 1 S.C.R. 741, noted that theseriousness of the offence and prejudice is not to be discounted when evaluating the transitional exception.

These words were used indiscussing this at paragraph 70: The facts of Williamson were unusual, in that it involved a straightforward case and an accused person who made repeated efforts toexpedite the proceedings, which efforts stood in contrast with the Crown’s indifference (paras. 26-29). Therefore, despite the seriousnessof the offence and the absence of prejudice, the delay exceeding the ceiling could not be justified under the transitional exceptional

circumstance. This highlights that the parties’ general level of diligence may also be an important transitional consideration. But the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstances. [ 14 ] This is not a complex case. It is noted that, as time has progressed and prior to the Information being sworn, two witnesses have died.

While it is acknowledged that pre-charge delay is generally not considered in terms of prejudice, the defence nonetheless says in these circumstances it should be an element in the assessment of prejudice as they are precluded from making full answer and defence. [ 15 ] One of these witnesses is Polich, the property owner who made the initial complaint. While the defence says prejudice has resulted as they will be unable to cross-examine him on the question of consent to hunt on his land, the Crown notes that the loss of his evidence only affects Count 5 and 6, which counts the Crown is not proceeding.

Any prejudice is thus negated. [ 16 ] With regard to the other witness, Andy, he died on October 2014. The Crown had no intention of calling him, but the defence did to rebut the defendant's inculpatory statement with the assertion that he was covering for Andy. The Crown submits it is speculative whether there is prejudice as they suggest that if the matter had proceeded in the usual timeline rather than the nearly three years it took to swear the Information, it is debatable whether this witness would have been alive, in any event, by the time of trial.

I observe that while this might be true, the difficulty with this point of view is the realm of speculation becomes pronounced with the assumption of innumerable variables. These are questions of alternative paths that confuses the issue at hand. [ 17 ] Looking to the state of the Information since it was sworn, the fact is two witnesses are deceased. Actual prejudice disappears for those counts relating to the deceased, Polich, but it becomes a factor for the witness, Andy, as his evidence may establish an innocent explanation for the defendant's conduct.

Whether such a version is ultimately believable is another matter, but as I considered the strength of such potential evidence, it was, in this instance, a legitimate pursuit for the defendant to present in his defence. The point is it remains actual and not merely fanciful prejudice which is weighed in this assessment. [ 18 ] Another part of the assessment is inherent time delay. Defence counsel appeared for the defendant at his first appearance on December 1st, 2015.

It is apparent she had already set out a plan for her client when she raised the prospects of alternative measures on January 8th, 2016, appearance. Unlike many files, the neutral time before involvement of counsel in this instance is very short. I assess inherent delay at approximately one month. Throughout, I find that the defendant's conduct was consistent with a desire for a timely trial. [ 19 ] It is the level of diligence of the Crown which is scrutinized. I find the time delay is attributable to the Crown.

I have already commented on the characterization of the delay caused by inaction on the question of alternative measures. It is the Crown who bears that responsibility. Some delay also occurred when the trial date was set. Specifically, on October 7th, 2016, trial dates were fixed with the first hearing dates available on the March 7th, 2017, circuit.

However, due to the unavailability of the Crown, it was scheduled for the June 21st, 2017, circuit. [ 20 ] Finally, there is institutional delay of about eight-and-a-half months in trial scheduling which, by Morin , is reasonable. [ 21 ] This transitional evaluation must be done with the Jordan framework in mind. The distinctive element is the culture of complacency which persisted in spite of any reasonable reliance one might place on the state of the law between Morin and Jordan .

On the totality of the circumstances, and with a firm eye on Jordan , the defendant's Charter rights for a trial within a reasonable time was breached. [RULING ON DEFENCE APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS CONCLUDED]