IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Bond alleges that he has been denied his right to be tried within a reasonable time:  Canadian Charter of Rights & Freedoms, section 11(b).  He seeks a judicial stay of this prosecution, relying on the principles stated in R vs Askov 1990 CanLII 45 (SCC), [1990] 2 SCR 1199 and R vs Morin 1992 CanLII 89 (SCC), [1992] 1 SCR 771.

[2]           Mr. Bond is charged with mischief, theft of a motor vehicle and driving while prohibited, each of those charges arising from events which occurred on June 20, 2014.  Mr. Bond was arrested that evening and retained counsel immediately.  The information was sworn on August 14, 2014.  Mr. Bond made his first court appearance on August 18, 2014 and entered a plea of not guilty on August 25, 2014.  On September 8, 2014, a trial date was fixed for February 25, 2015.

[3]           The trial commenced on February 25, 2015, but was not completed on that day.  One Crown witness was absent because of illness.

[4]           During the period February 25 to March 23, 2015, counsel were in communication with the Judicial Case Manager in an attempt to arrange a date for continuation of the trial.  On March 25, 2015, the Judicial Case Manager offered April 9, 2015 as a date for continuation.  However, Ms. Runyon, Mr. Bond’s counsel, was not available on that date.  On March 26, 2015, the Judicial Case Manager fixed May 28, 2015 for the continuation.

[5]           There were two cases on my list on May 28, 2105: (i) the continuation of this matter; and (ii) a charge of sexual assault by an adult on a very young child.  Crown counsel expressed the view that the latter was more urgent than the former, and should have priority.  I agreed, and proceeded with the sexual assault trial.  Mr. Bond and Ms. Runyon waited most of the day, in the hope that the sexual assault trial might be completed before the end of the day, leaving some court time for the continuation of Mr. Bond’s trial.  Unfortunately, the sexual assault trial took up the entire day.  I referred counsel in this case to the Judicial Case Manager to fix a new date for continuation.  On June 1, 2015, the Judicial Case Manager fixed November 10, 2015 for continuation.

[6]           The total elapsed time from the swearing of the information to the hearing of this application was 16 months.  In Morin, Justice Sopinka said at paragraph 55 that an “institutional delay” of 8 to 10 months, from the swearing of the information to the end of the trial, is reasonably to be expected in provincial court prosecutions.

[7]           This is not a complex case.  I heard three Crown witnesses on February 25, 2015.  The gist of their evidence was that, in June, 2014, Mr. Bond was a tenant in the home of the complainant and was prohibited from driving.  A quarrel arose and Mr. Bond fled the scene in the complainant’s vehicle.  The relevant events took place over the space of a few hours.  Neither the Crown nor the defence required any extensive period of time to prepare for trial.

[8]           Mr. Goddard, for the Crown, submits that the time elapsed from February 25 to May 28, 2015 should not be regarded as institutional delay, because the risk that a witness will be unavailable for health reasons is inherent and unavoidable in the litigation process.  He says that it is not unreasonable to delay a trial for such reasons, and that delay for such reasons does not infringe the right of the accused to trial within a reasonable time.  I accept the principle as articulated by Mr, Goddard (see R vs Adams 2015 BCJ No. 706; 2015 BCPC 83), but not its application to this case.  I think that the applicability of the principle depends on the proposition that, but for the illness of the witness in question, the trial could, and probably would, have been completed on February 25, 2015.  Unless that proposition is established, one cannot conclude that it was the illness of the witness which caused the delay. 

[9]           On November 10, 2015, when this application came on for hearing, Mr. Goddard asked me to adjourn the application because Crown witnesses (plural) were in attendance at court and waiting to give evidence.  He said that I should hear their evidence before hearing this application.  I decided to hear the application first.  Mr. Goddard’s submission leads me to think that there is more than one further witness in the Crown’s case.  Of course, I have not yet been told whether there will be defence evidence.  While it is true that this case did not consume the entire court day on February 25, 2015, it did consume most of it.  I think it unlikely that we could have completed the trial on that day if all of the Crown witnesses had been present and ready to testify.

[10]        It should be noted that:

[11]        If there were no further factor to consider, I would find this a difficult decision.  The criminal justice system is a complex machine with many moving parts.  Managing trial schedules is a challenging job.  Things don’t always go as smoothly as one would hope.  Those problems are more acute on northern Vancouver Island than in urban centres.  For example, I am based in Nanaimo, 90 minutes’ drive south of Campbell River.  I work, on a regular basis, in four different communities within a radius of about 150 kilometres, and less frequently in five other communities farther apart.  For those reasons, an institutional delay of more than 8 – 10 months may be reasonable in northern Vancouver Island.  While at the outer edge of the permissible, a delay of 16 months between the swearing of the information and the end of the trial might not, of itself, be unreasonable in a case of this kind.

[12]        The deciding factor on this application is the existence of specific prejudice to Mr. Bond, arising from his personal circumstances. 

[13]        Mr. Bond is a poor man.  Having been evicted from his residence at the complainant’s home, he had nowhere to live on Vancouver Island.  At the end of August, 2014, he moved to Kelowna, which is a full day’s bus journey from Campbell River.  Round-trip bus fare is approximately $250.  In February, 2015, he obtained part-time employment at the Kelowna Gospel Mission.  His total income is approximately $14,000 per year.  He attended court on February 25, 2015 at his own expense.  Because he had only recently obtained employment, he could not afford a hotel in Campbell River.  The local shelter for the homeless was full, so he spent the night of February 24 – 25 on the streets of Campbell River.  On April 25, 2015, one of Mr. Bond’s legs was amputated at the Kelowna hospital.  He was discharged from hospital in late May to allow him to attend the new trial date in Campbell River.  He travelled again to Campbell River by bus and stayed overnight at a local hotel.  His hotel bill was approximately $100.  The journey was painful and exhausting for him because he had not fully recovered from the amputation.  Mr. Bond attended the hearing of this application, on November 10, 2015, by video from the Kelowna courthouse.

[14]        Mr. Bond’s travel to attend court on February 25, 2015 was a necessary incident of the prosecution.  Court proceedings cause inconvenience and expense to the participants.  Sadly, those burdens fall more heavily on the poor than on the rich.  Inconvenience, discomfort and expense which are necessarily incidental to the process ought not to be considered on an application of this kind.  However, those which are the result of delays in the court process are relevant to the relief sought on this application:  R vs Poloni [2012] BCJ No. 12; 2012 BCCA 8 at paragraph 16.  It is less clear that Mr. Bond’s second trip was also a necessary incident of the prosecution.  If two days had been reserved for the trial in February, and arrangements could have been made for the attendance of all Crown witnesses at that time, the trial could have been completed in February.  However, I am not in a position to assess who, if anyone, is responsible for the failure to complete the trial in February.  Whatever might be said about that, it is clear that the failure to complete the trial on May 28 was not a necessary incident of the prosecution.  If court time had been available on May 28, the trial would have been completed on that day, and Mr. Bond would not face the prospect of a third trip to Campbell River.  In my view, a third trip would be an unconscionable imposition.  That leads me to the conclusion that the delay in this case has been unreasonable.

[15]        I conclude that the delay in this case has infringed Mr. Bond’s rights under section 11(b) of the Charter.  In R vs Rahey 1987 CanLII 52 (SCC), [1987] 1 SCR 588, Justice Lamer said, at paragraphs 48 to 51, that the only appropriate remedy for such an infringement is a judicial stay of the prosecution.  He was supported in that conclusion by Chief Justice Dickson (who concurred in his judgment), by Justices Beetz and LeDain (at paragraph 58) and by Justices Wilson and Estey (at paragraph 61).  Justices LaForest and McIntyre disagreed (at paragraphs 109 – 110).  Justice Chouinard took no part in the judgment.  Rahey continues to be the governing authority on the point:  R vs Morin at paragraph 80; R vs Nethery 2005 ABPC 343 (CanLII), [2005] AJ No. 1886; 2005 ABPC 343.  For that reason, I am obliged to order a judicial stay of this prosecution, and I do so.