IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Alan Raymond Charbonneau, the Defendant, is charged by Indictment on Information number 24210 in Count 1 with possessing child pornography contrary to Section 163.1 (4) of the Criminal Code and in Count 2 with accessing child pornography contrary to Section 163.1 (4.1) of the Criminal Code; both offences alleged to have occurred between January 1, 2006 and March 24, 2009 at or near Quesnel, British Columbia. 

[2]           Near the end of the trial which required 15 pre-trial appearances and occupied  all or parts of 14 days of trial spread out over 21 months, the Defendant filed a Notice of Constitutional Question on December 2, 2013 alleging that his right to a trial within a reasonable time under Section 11 (b) of the Charter of Rights and Freedoms (the Charter) was breached and that he should be granted the remedy of a Judicial Stay of Proceedings pursuant to section 24 (1); often referred to as an Askov Application named after the case of R. v. Askov 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199.

[3]           On December 2 and 3, 2013 counsel made their submissions on the merits of the trial and then a disagreement arose between them as to whether the Court should decide the case on its merits before hearing the Askov Application.

[4]           Upon receiving further written and oral submissions I determined on January 20, 2014 that the Askov Application should be heard and decided before the Court turned to the consideration the evidence and submissions concerning the trial proper.

[5]           The Askov Application lasted a further three days spread out over four months after which Judgement was reserved.

[6]           In light of the nature of the application before the Court it is necessary to set out the history of the case. For reasons that will become apparent later in this decision the timeline will include some important dates and steps that did not involve an appearance before the Court.

[7]           In early March 2009 the Integrated Child Exploitation Unit (ICE) of the Royal Canadian Mounted Police (RCMP) became aware of the Defendant potentially engaging in accessing, possessing or distributing child pornography on his computer as part of a larger RCMP task force investigation of child pornography.

[8]           On March 23, 2009 a search warrant was executed on the Defendant's residence and his computer was seized. A preview of that computer's hard drive by an RCMP computer expert, Cpl. Gerry Louie located a few thumbnail images consistent with child pornography. The Defendant was arrested and released later that day without conditions.

[9]            On July 17, 2009 the RCMP provided a Report to Crown Counsel which indicated that although thumbnail images were on the Defendant's computer hard drive "no videos or pictures were found". On August 27, 2009 the Information was sworn.

[10]        On September 29, 2009 (Appearance 1) the matter was adjourned to October 20, 2009 at Defence counsel's request.

[11]         On October 20, 2009 (Appearance 2) the matter was further adjourned to November 10, 2009 at Defence counsel's request because he was seeking further disclosure from the Crown and wanted to review with the Defendant the possible elections and arraignment.

[12]        On November 9, 2009 the Crown filed its Arraignment Report indicating it would call eight witnesses and estimating the trial at two days.

[13]        On November 10, 2009 (Appearance 3) Defence counsel requested a further adjournment to December 15, 2009 indicating there was a continuing issue of disclosure.

[14]        On December 15, 2009 (Appearance 4) the matter was further adjourned to January 19, 2010 at the request of Defence counsel who indicated that he wished to speak to the Crown.

[15]        On January 19, 2010 (Appearance 5) the matter was further adjourned to February 9, 2010 because Defence counsel and the Crown had not yet met. The Crown indicated to the Court that it believed Defence counsel had all the disclosure.

[16]        On February 5, 2010 the Defence filed its Arraignment Report estimating the trial at two days.

[17]        On February 9, 2010 (Appearance 6) the Defendant elected trial by Provincial Court Judge and entered a not guilty plea. The Crown and Defence counsel confirmed a trial estimate of two days.

[18]        On February 16, 2010 the Judicial Case Manager (JCM) advised that she had not heard from Defence counsel regarding fixing the trial date and set February 23, 2010 to do so with indicated trial dates of December 1, and 2, 2010, and a Trial Confirmation Hearing on October 19, 2010.

[19]        Although the RCMP had possession of the Defendant's computer hard drive from the time the search warrant was executed on March 23, 2009 no further investigatory steps were undertaken until ICE was advised that the Defendant was pleading not guilty and trial dates of December 2010 were being arranged.

[20]        On March 9, 2010 Defence counsel wrote to the Crown indicating his unavailability for the December 2010 trial dates and confirmed new trial dates of January 26 and 27, 2011. Defence counsel further indicated that he would waive the time between the December 2010 and January 2011 trial dates.

[21]        On March 16, 2010 (Appearance 7) the Court was advised that the Crown and Defence agreed to adjourn the December 2010 trial dates because Defence counsel was double booked and indicated a new trial date of January 26 and 27, 2011 with a Trial Confirmation Hearing date of December 14, 2010.

[22]        During the Askov hearing the Court was advised that due to the sheer volume of child pornography investigations and the time required to complete a detailed analysis of a computer, RCMP policy directs that a detailed analysis not be done until  the trial date has been set. Upon being advised in late February 2010 that the Defendant had obtained a trial date for December 2010 Cpl. Louie began his detailed technical analysis of the Defendant's computer completing his report on March 23, 2010.

[23]        The lead investigator on the file had discussions with the Crown and it was decided that disclosure of Cpl. Louie's report to Defence counsel would be delayed until the exhibit analysis was completed.

[24]        Due to staffing issues the exhibit analysis did not commence in March 2010 when Cpl. Louie provided the necessary data to a fellow RCMP member. Before the exhibit analysis was started that member went on maternity leave.  Eventually the task was delegated to Cpl. Meghan Driscoll. She conducted the exhibit analysis between September 22, and October 1, 2010.

[25]        To prepare the exhibit analysis Cpl. Driscoll examined 23,644 images from which she concluded there were 363 images of child pornography and that nine of those images were accessible to the viewer. There were a further 52 videos of various lengths containing child pornography.

[26]        On October 15, 2010 the RCMP provided the Crown with a CD-ROM containing what was described as a "supplemental report containing the forensic technical analysis and evidence review" being the work performed by Cpl. Louie and Cpl. Driscoll.

[27]        On November 22, 2010 the Crown provided further disclosure to Defence counsel including the reports of Cpl. Louie and Cpl. Driscoll.

[28]        On December 14, 2010 (Appearance 8) the Trial Confirmation Hearing started but was adjourned to December 21, 2010 at the request of Defence counsel.

[29]        On December 20, 2010 the Crown filed its Trial Readiness Report indicating the trial would take two days and there were no outstanding disclosure issues.

[30]        On December 21, 2010 the Defence filed its Trial Readiness Report confirming that Charter notices would be provided within a reasonable time but indicating that the trial could not proceed because of the late disclosure of the Crown's technical reports and the need to consult an expert.

[31]        On December 21, 2010 (Appearance 9) the Defence notified the Court of its intention to apply for an adjournment due to late disclosure and the Crown indicated that it would not be by consent. The matter was adjourned to January 11, 2011 for the adjournment application.

[32]        On January 11, 2011 (Appearance 10) the Defence application to adjourn the trial scheduled for January 26 and 27, 2011 was heard. Defence counsel submitted that there was a significant change in the case to meet given the disclosure provided in November 2010. The Crown conceded that the case may have changed somewhat. Defence counsel indicated he no longer knew what the right amount of time for trial might be. The matter was adjourned to February 15, 2011.

[33]        On February 15, 2011 new trial dates of May 9 and 10, 2011 were fixed. On March 4, 2011 correspondence among the JCM, Defence counsel and the Crown confirmed those trial dates.

[34]        On March 29, 2011 (Appearance 11) a Pre-Trial Conference was held. Both the Crown and Defence agreed that three days for trial would be sufficient. Defence counsel advised the Court that there would be Charter issues surrounding the execution of the search warrant and the voluntariness of the Defendant's statement but that formal notice had not yet been given to the Crown. Defence counsel indicated an intention to retain a computer expert but that had not yet occurred.

[35]        During the course of the Pre-Trial Conference the Court attempted to confirm the trial dates of May 9, 10, and 11, 2011 but at that point was advised by Defence counsel that he may have a two week commitment in the Supreme Court of British Columbia commencing on May 2, 2011.

[36]        On April 20, 2011 (Appearance 12) Defence counsel advised the Court that he did have a conflict with a commitment in the Supreme Court and further that the Defendant was at home recuperating from orthopaedic surgery. The Crown expressed concern about the age of the file but did not oppose a further adjournment if it "doesn't fall at the feet of the Crown". The Court granted the adjournment noting it was at the request of the Defence counsel.

[37]        On May 3, 9, and 10, 2011, various appearances were made before the JCM fixing new trial dates of February 29, March 1, and 2, 2012, and a Pre-Trial Conference of October 26, 2011.

[38]        On October 26, 2011, (Appearance 13) the Crown and Defence counsel confirmed the trial dates of February 29, March 1, and 2, 2012. Defence counsel confirmed that disclosure was "no problem".

[39]        On February 12, 2012, the Crown with conduct of the file was appointed to the Provincial Court and a new Crown was appointed.

[40]        On February 29, 2012, (Appearance 14) the trial was unable to proceed due to Defence Counsel's illness. On March 1, 2012, Defence counsel indicated his illness was persisting and the trial dates were lost. On March 1, 2012, the Court indicated its intention to get the trial rescheduled in a timely fashion due to of the age of the file. After further consultation with the Crown and Defence counsel the dates of April 30, and
May 1, 2012, were confirmed.

[41]        On April 17, 2012, Defence counsel provided to the Crown a Charter Notice concerning the search and seizure of the Defendant's computer. In addition, Defence counsel advised the Crown of his application to cross examine the affiant of the Information to Obtain.

[42]        On April 18, 2012, the Crown corresponded with Defence counsel advising that it would be applying to de-notify all witnesses other than the affiant. On April 20, 2012, the Crown provided Defence counsel the application returnable April 24, 2012, concerning witnesses.

[43]        On April 24, 2012, (Appearance 15) the Crown's application concerning the denotification of witnesses was granted by the Court.

[44]        On April 30, 2012, the trial commenced (Day 1) with Defence counsel indicating to the Court his wish to cross examine the affiant on the Information to Obtain, in effect an oral Vukelich hearing. The Crown opposed Defence counsel's request indicating it had received no materials and that leave must be obtained with regard to such cross examination and the granting of Voir Dire. After hearing submissions of counsel, I adopted the procedure of having counsel make submissions over April 30, and May 1, 2012, (Day 2) on the issues, with my decision on May 30, 2012.

[45]        On May 30, 2012, (Day 3) the Defence application for a Voir Dire and cross examination of the affiant was dismissed.  I granted leave to Defence counsel to reapply with a more formal process if he wished. August 1, and 2, 2012, were fixed for that purpose with the trial to continue in November 2012.

[46]        Between May 14, and June 4, 2012, the Crown and Defence counsel corresponded with the JCM with regard to new trial dates to be fixed for November 5, 6, and 7, 2012.

[47]        On November 5, 2012, (Day 4) the trial recommenced with Defence counsel advising that he would not be calling evidence to challenge the search warrant. The Crown called Const. Virginie Achtymichuk a member of ICE, Constable David Peddle a RCMP member stationed in Quesnel and Cpl. Alain Filotto another member of ICE and the lead investigator. Much of the evidence that day was conducted in a Voir Dire concerning the Defendant’s statement.

[48]        On November 6, 2012, (Day 5) the trial continued with the entire day being occupied by the evidence of Cpl. Filotto and the entry of numerous exhibits. The Defendant’s statement was found to be voluntary and admissible as part of the trial.

[49]        On November 7, 2012, (Day 6) the trial continued with the entire day being occupied by the evidence of Cpl. Louie and the entry of a number of exhibits. Cpl. Louie was qualified as an expert in computer forensic analysis including creating duplicate images of hard drives and examining the imaged hard drive for forensic evidence concerning peer-to-peer file sharing and evidence of computer users.

[50]        On November 7, 2012, there were discussions among the Court, the Crown and Defence counsel concerning further trial dates.  I advised that I could continue the case on November 26, and 27, 2012, but those dates were not available to Defence counsel.

[51]        November 8, 2012, the Crown and Defence counsel met with the JCM and fixed continuation dates for February 20, 21, and 22, 2013.

[52]        On February 20, and 21, 2013 (Days 7 and 8) the evidence of Cpl. Louie continued for the entirety of both days and included the entry of a number of exhibits. That concluded the case for the Crown.

[53]        On February 22, 2013, (Day 9) the Court was advised by counsel that the Crown would not be in a position to cross examine the Defendant with regard to some of the exhibits entered through Cpl. Louie. Defence counsel also advised that he needed time to digest those exhibits and that it would be a prudent use of time to start the direct evidence of the Defendant.

[54]        On February 22, 2013, after the initial evidence of the Defendant was called, I advised counsel that there would be some revamping of the Provincial Court’s administrative structures which might impact on my available dates going forward. I also raised the concern that there may be need for at least three more days to conclude the trial.

[55]         Between March 11, and 28, 2013, counsel corresponded with the JCM regarding continuation dates with each counsel providing the dates they were available. Eventually the dates of September 3, 4, and 5, 2013, were fixed for the continuation of the trial.

[56]        On May 15, 2013, a telephone conference was held because the September 3, 4, and 5, 2013, trial dates were no longer available because of a change to my schedule. After much discussion between the Court, the JCM, the Crown, and Defence counsel the dates of October 24 and 25, 2013 and December 2, 3, 4, 5, and 6, 2013 were set aside to complete the trial.

[57]        On October 24, 2013, (Day 10) the Defendant's evidence in direct and cross examination occupied the entire day.

[58]        On October 25, 2013, (Day 11) the cross examination of the Defendant continued for the entire day. At the conclusion of the Defendant's evidence Defence counsel advised the Court that he wished to consider whether or not further evidence would be called on behalf of the Defendant and he would need two weeks to make that determination.

[59]        On November 25, 2013, there were various email communications among the JCM, the Crown and Defence counsel at which time Defence counsel advised that there would be no further evidence called on behalf of the Defendant but that Defence counsel was considering making an Askov application.

[60]        On December 2, 2013, (Day 12) Defence counsel filed a Notice of Motion and Affidavit of the Defendant in support of the Askov application. Defence counsel submissions with regard to the merits of the case occupied approximately one hour. Crown submissions in that regard occupied the remainder of December 2, and part of December 3, 2013.

[61]        On December 3, 2013 (Day 13) Crown and Defence counsel made submissions regarding the order in which the Court should rule on the merits of the case and the Askov application. Those issues were adjourned for further written submissions and a decision on the order in which the matters would be decided.

[62]        On January 20, 2014, (Day 14) I ruled that the Askov application should be decided first and, depending on the outcome of that application, the merits of the case decided second.

[63]        The total time from the laying of the Information on August 27, 2009, until
January 20, 2014, was 53 months or about 4 1/2 years.

[64]        On April 22, 2014, Defence counsel began his cross examination of Cpl. Filotto as part of the Askov application. That evidence was interrupted by Cpl. Filotto's illness.

[65]        On August 11, 2014, Defence counsel concluded his cross examination of Cpl. Filotto on the Askov application. Defence counsel and the Crown spent the remainder of the day in oral argument with the Crown expanding on their extensive written submissions.

[66]        On August 12, 2014, counsel concluded their oral argument on the Askov application.

[67]        In support of his Application the Defendant filed an Affidavit on
December 2, 2013.  Portions of that Affidavit can be summarized as follows:

[68]        In paragraph 14 of the Affidavit the Defendant said:

[69]        The Defendant was not cross-examined about his Affidavit by the Crown.

[70]        In support of its position, the Crown filed two Affidavits; one from Gary Hansen, Crown counsel, which simply set out various correspondences and other materials regarding various court appearances and the fixing of court dates.

[71]        The other affidavit was from Cpl. Filotto, who described the various steps taken in analyzing and preparing the technical reports concerning the evidence of child pornography found on the Defendant's computer and how that information was prepared for disclosure to the Crown and Defence counsel.

[72]        Cpl. Filotto was cross-examined by Defence counsel at length. A summary of his cross examination evidence relevant to the Askov application included:

[73]        Section 7 of the Charter states:

[74]        Section 11(b) of the Charter states:

[75]        Section 24(1) of the Charter states:

[76]        Crown counsel presented the Court with numerous case authorities with regard to Askov applications.  In addition, the Court referred counsel to a number of other cases it was aware of and would be considering.  Those cases, where indicated a summary of the nature of the charges, the delays, and where the stay was granted or refused include:

[77]        There is a very thorough discussion about s. 11(b) of the Charter by Romilly J. in Adam where he says at paragraphs 118 through 124 (some cites omitted by this Court):

[78]        Subsequent to the conclusion of counsel submissions the Court became aware of the Ontario Court of Appeal decision in Stilwell. The facts of that case are in many respects similar to the case at bar and as such some of the comments and findings of both the trial Judge and Court of Appeal are worthy of consideration here.

[79]        Mr. Stilwell was charged with distributing, possessing and accessing child pornography. 26 months had elapsed between the date the Information was sworn and the anticipated conclusion of his trial. The trial Judge found that 12.5 months of the delay was attributable to the Crown and resulted in actual prejudice and entered a stay of proceedings.

[80]        Much of the analysis of the trial Judge concerning the time attributable to the Crown (which was adopted by the Court of Appeal) had to do with the time it took the police to analyze the available evidence and provide full disclosure to the defence. That time was 14 months although the actual analysis required to provide the disclosure occupied only 25 hours of police time.

[81]        The trial Judge concluded that the delay in providing disclosure was a result of lack of police resources and attributed 5.5 months of the delay to the Crown. That finding was agreed with by the Court of Appeal.

[82]        The trial Judge then went on to conclude that based in part on the accused's affidavit and the total amount of delay the accused suffered prejudice to the point where a stay of proceedings was appropriate. In arriving at that conclusion the trial Judge said at paragraph 34 of the trial decision (as quoted by the Court of Appeal):

[83]        The Court of Appeal disagreed with that analysis as it pertained to:

[84]        On that basis the Court of Appeal granted the Crown's appeal and remitted the matter back for trial.

[85]        In doing so, the Court of Appeal referred to the recent Supreme Court of Canada decision in R. v. Spencer 2014 SCC 43 where, in dealing with the analysis of a s. 8 Charter infringement Cromwell J. said at paragraph 80:

[86]        Defence counsel’s submissions can be summarized as follows:

[87]        The Crown prepared extensive written submissions on the various aspects of an Askov application crossed referenced with the large volume of cases provided and further supplemented with oral submissions. Those submissions on the topics addressed can be summarized as follows:

[88]        The Crown also made submissions on the calculation of time allocations described in the Morin framework. They can be summarized as follows:

[89]        Although the Crown did not cross examine the Defendant on his affidavit in support of the Askov application the Crown submissions on the issue of prejudice to the Defendant can be summarized as follows:

[90]        The factors set out in Morin are not exhaustive and the unique facts of each case are particularly important in the overall analysis.  Although some consideration of the individual factors is inevitable and of assistance the ultimate determination is based on the reasonableness or unreasonableness of the overall delay.

[91]        The time from the swearing of the Information, August 27, 2009, to the end of counsel's submissions on the merits of the case, December 3, 2013, was just over 51 months. However, the end of a trial is not when submissions conclude but rather when the Court renders a decision. Given the length and detail of the evidence presented it would be reasonable for the Court to take approximately 3 months to provide the trial decision and as such I am using the figure of 54 months for the total length of delay.

[92]        Any time periods that the Defendant clearly and unequivocally waives must be deducted from the total delay before determining if the remaining delay is reasonable or unreasonable.

[93]        The Crown submits that a vast majority of the various components of delay in this matter should be found to be waiver on the part of the Defendant. Defence counsel acknowledges that due to his other client commitments there were periods of time that must be determined to be waived but not to the extent suggested by the Crown.

[94]        The time that was lost due to waiver was in large part the result of Defence counsel not having readily at hand accurate information about his own calendar. Given the modern technology available today it is worrisome that counsel would not be able to ascertain and advise the Court within minutes what his schedule looks like into the future and if other commitments have been made and confirmed.  A delay of days, or even weeks, before advising the Court of scheduling conflicts impinges on the Court’s ability to ensure cases are dealt with fairly and timely manner.

[95]        Having reviewed the timeline and counsel submissions I determine the following time periods to be waived by the Defendant :

[96]        I specifically reject the submissions of the Crown that all of delays occasioned by inadequate trial length estimates by counsel should rest at the feet of Defence counsel as waiver.

[97]        The scheduling of all cases in the Provincial Court is done by Judicial Case Managers who work under the direction and authority of the Chief Judge and his delegate, the Regional Administrative Judge.  This scheduling model effectively manages both Judicial and court resources to ensure the average of over 1,100 cases dealt with annually by each Provincial Court Judge are scheduled appropriately.

[98]        Such case management by the JCM is even more crucial in the Northern Region of the Court where 17 Judges serve 31 communities spread out over an area the size of Alberta, in all three divisions of the Court’s jurisdiction criminal, civil and family.

[99]        In addition, the JCM’s work under a set of Directives and Policies issued by the Chief Judge that require cases to be assigned and scheduled under a set of priorities to ensure equity among all litigants and to ensure certain higher priority matters are heard in the most timely fashion.  Higher priority cases include child apprehensions, family matters involving protection issues, youth criminal matters, bail applications and in custody criminal trials.

[100]     In larger centers with many judges and many scheduling options it may be appropriate and available for counsel to press for earlier trial dates than those being proposed by a JCM.  However, in this case due to my other duties I was not always available and the dates presented to counsel by the JCM after consultation with my calendar were the only dates that could be offered.

[101]     For the Crown to submit that Defence counsel should demand an audience with the Court to press for other dates ignores the reality the scheduling demands of meeting the needs of all litigants and would have simply absorbed even more precious court time to no avail.

[102]     Acceptance by counsel of trial dates provided by the JCM in these circumstances is not a waiver but neither is it the fault of the Crown.  It is either inherent or systemic depending on the circumstances.

[103]     The Crown’s submission, in the face of the reality described above, that Defence counsel must parrot certain “magic words” of discontent in order to avoid being found to have waived a certain time period unreasonably calls into question the professionalism of both the JCM and Defence counsel.

[104]     The Crown submitted that there must be evidence to counter the possible inference of waiver.  The case law adopts that approach and I agree.  Having said that, it is also reasonable for the Court to take judicial notice of its own internal Directives and Policies and the scheduling challenges faced by the JCM particularly when the Judge in question is tasked by the Chief Judge with the oversight and administration of those matters.

[105]     I agree with the Crown’s contention that the Defendant should not be permitted to delay a case until the evidence grows cold and then rely on that delay to support an Askov application.  If that had been the intent of the Defendant here that approach would have been fruitless because of the documentary nature of the evidence.  In any event there is no evidence that the Defendant adopted that strategy.

[106]     The time from the swearing of the Information, August 27, 2009, to the first date set for trial, December 1, 2010 -15 months could often be described as inherent time.

[107]     If this case had been a complex case involving multiple accused, multiple counsel, multiple counts, or was extraordinarily complicated from an investigatory perspective, a 15 month period between the swearing of the Information and the commencement of the trial would not be out of the ordinary although somewhat in excess of the Morin guidelines.

[108]     However, this case was not overly complex. In fact, the Crown suggested the case could have successfully proceeded even without the technical reports prepared by Cpl. Louie and Cpl. Driscoll. There is no doubt that computer-based child pornography cases require some sophisticated methods of investigation and the necessary technical expertise is required when examining a computer hard drive but that does not make the case complex.

[109]      During his evidence in the Askov application Cpl. Filotto acknowledged that the exhibit analysis performed by Cpl. Driscoll did not require much, if any, in the way of specialized training other than to understand the definition of child pornography in the Code and then apply that definition to the images reviewed.

[110]     As I will describe further under the heading Actions of the Crown I allocate 8 of the initial 15 months, (to April 2010) as inherent time with the remaining 7 months (April to December 2010) being attributed to the Crown.

[111]     A second portion of inherent time is from November 7, 2012, to
February 20, 2013, - 5 1/2 months.

[112]     A third portion of inherent time is from February 22, 2013, to September 3, 2013, - 7 months.

[113]     A fourth portion of inherent time is from October 25, 2013, to December 2, 2013, - 1 1/2 months.

[114]     A fifth portion of inherent time is from December 3, 2013, to March 3, 2014, when a decision on the trial could likely have been rendered - 3 months.

[115]     I reject the submissions of the Crown that all of the delays in concluding the trial that arose after the initial two days in April/May 2012 should be attributed to the Defendant.

[116]     Both the Crown and Defence counsel are Queen's Counsel with, respectively, 37 and 38 years’ experience at the Bar.

[117]     The Court should be able to reasonably expect that counsel with such experience would have an intimate knowledge of the nature of their own case and at least some anticipation of the nature of the other party’s case.

[118]     The Crown initially anticipated calling eight witnesses and optimistically estimated two days for trial.  When the Crown’s case was called there were 4 witnesses and their evidence took 5 days.  There was not any unnecessary or prolix cross examination by Defence counsel although the cross examination was thorough.

[119]     The Defence is responsible for a further 5 days of trial time, 2 days at the beginning pursuing the Vukelich application and a further 3 days for the Defendant’s evidence.  The Crown’s cross examination of the Defendant was detailed but appropriate given the topics that had to be covered.

[120]     A further cumulative 4 days of the trial were occupied by counsel’s submissions and the Court’s various decisions and rulings.

[121]     When all the time is considered this trial took almost 5 times the longest estimate of counsel.  Furthermore, once the trial got underway counsel underestimated the remaining time needed on three separate occasions.

[122]     One of those occasions was the realization by counsel that some aspects of the report and evidence of Cpl. Louie took them down an unexpected path.  Although that sense of surprise might be reasonable of Defence counsel, given the volume of disclosure, it should not have surprised the Crown given it was presented by their witness and was in existence for a considerable time.

[123]     It is clear from the case law that I am duty bound to assess many of the periods I have just described as inherent time and I will do so.  However, to anyone outside the court system looking in it might appear that both the Crown and Defence counsel should bear some responsibility for the inaccurate time allocation.

[124]     There are two time periods that do not amount to a waiver but are attributable to the actions of Defence counsel. The first of these occurred when Defence counsel fell ill on February 29, 2012, resulting in the commencement of the trial being adjourned
April 30, 2012, - 2 months.

[125]     The second was the time taken at the beginning of the trial to hear and decide the Defendant's Vukelich application from April 30, 2012, to May 30, 2012, - 1 month.  That matter should reasonably have been in the contemplation of experienced Defence counsel and incorporated into the trial time estimate.

[126]     The Crown acknowledges that it is responsible for the delay occasioned by the late disclosure of the technical reports which required an adjournment of the trial from January 26, and 27, 2011, to  May 9, 10, and 11, 2011 – 3 ½ months

[127]     However, the Crown delayed in providing full disclosure to the Defendant for 10 months after advising both Defence counsel and the Court in January 2010 that disclosure was complete.

[128]     There can be little fault attributed to the RCMP for taking no further steps in analysing the Defendant’s computer from the time it was seized until they were sure the case would be contested.  Given the number of cases that are resolved without a trial and the sheer volume of cases being investigated such a decision is a prudent use of resources.

[129]     However, once a case is set for trial the investigation should spring into action to get the necessary technical analyses done and the reports prepared so the Crown can meet the obligations for disclosure required of it as described in R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

[130]     Acting in such a fashion would have a number of possible salutary effects; including but not limited to:

[131]     If full disclosure had been made in April or even May 2010 the trial could have commenced in January 2011 instead of having to be adjourned.  The January trial dates were scheduled before the full time sitting local Quesnel judge, whose schedule would have had many more available days than mine, to accommodate any continuations of the trial.

[132]     In fact, during the same time period that judge was able to deal with a very similar case, with the same Defence counsel and similar Crown disclosure issues in 37 months total time.

[133]     It is impossible at this time to calculate the overall cumulative effect of the Crown’s late disclosure on the conduct of the trial but it is reasonable to conclude it had some ripple effect on the pace of proceedings to the trial’s conclusion.  Any suggestion by the Crown to the contrary is not convincing.

[134]     The Crown’s submission that the late disclosure was fully remedied by the 3½ month adjournment of the trial from January to May 2011 is analogous to someone inadvertently setting into motion a long line of upright dominos and then claiming that they are only responsible for tipping over the first one.

[135]      Between December 1, 2010, and April 1, 2013, my availability to proceed with this matter was curtailed by my appointment as an Associate Chief Judge of the Provincial Court. From April 1, 2013, to the present my availability was also curtailed by my duties as the Regional Administrative Judge for the Northern Region of the Provincial Court.

[136]     Although every effort was made by me and the JCM to free up time for the continuation of the trial as required there were a number of periods of time that could not be made available which collectively I estimate at 4 months institutional or systemic delay.

[137]     The calculation of time in an Askov application is from the swearing of the Information until the conclusion of the trial.  The Crown contends that there is an inference of unseemliness in the Defendant waiting until the trial is almost at its end before bringing the Askov application.  It is true that such an application could have been brought at earlier points in the trial but the Crown did not suggest when that might be.

[138]     The Crown suggestion that if the Defendant was suffering serious prejudice an earlier application may have been warranted to alleviate the prejudice is worthy of careful consideration.  What is difficult to determine, based on the evidence presented and the history of the case, is when the prejudice goes from being what is normally expected by any accused person to that of being serious.  That can only be resolved by examining the length of the delay, the nature of the prejudice complained of, the effect of the prejudice on the Defendant and whether the prejudice can reasonably be determined to be serious.  That can only be accomplished when the end of the trial is ascertainable.

[139]     A summary of the total delay in this matter includes the following constituent components:

[140]     The Defendant was not on any bail conditions since his arrest so there were no liberty interests interfered with.

[141]     The Defendant listed several factors that interfered with his ability to defend himself due to a combination of circumstances.  They included his loss of a clear memory due to the passage of time, several medical conditions he suffers from and a variety of emotional or mental health issues including anxiety, depression and stress.

[142]     The Defendant also described his difficulties in bringing himself to review the disclosure as a result of his various conditions which further impinged upon his ability to explain his actions.

[143]     The Crown takes exception to those assertions pointing out:

[144]     Even in circumstances where there are aids to memory available to any witness the memory of most people degrades over time and the more time that passes the less complete recollections remain.  I have no doubt that there has been some degradation of the Defendant’s memory which has been exacerbated by the inordinate length of time this case has taken.  However, whether or not such degradation is due, even in part, to the Defendant’s health issues has not been bolstered by independent medical evidence.  Without that information the Defendant’s assertions concerning his memory problems and inability to get properly prepared for his testimony must be very carefully considered and may be no different than any other witness’ ability to recall events that occurred far in the past.

[145]     The Crown pointed out that the Defendant did not bring those concerns to the Court’s attention until the end of the trial and did not present evidence of any steps to have those issues diagnosed or treated.

[146]     However, it was clear throughout the course of the trial that the Defendant was suffering from some medical conditions that affected his mobility and caused him either extreme discomfort or outright pain which appeared to be chronic and enduring. It was not necessary to have independent medical information to observe that the Defendant's medical situation appeared to considerably interfere with his overall general physical well-being which could effect his emotional and mental status.

[147]     In Mills, at page 919, Lamer, J., in commenting on the issue of prejudice and security of the person said:

[148]     The Defendant listed several factors which have prejudiced him which can be considered under security of the person.  Matters of stress and anxiety have been already addressed.

[149]     The Defendant contended that he was unable to seek employment due to the ongoing nature of the trial and both his need to be available for any continuations as scheduled and his unwillingness to place any employer in the position of hiring him only to lose his services if he was convicted at the conclusion of the trial.

[150]     The Crown submitted that the Defendant was largely unemployable due to his medical conditions that restrict his mobility and as such his claims surrounding his employment situation were not sustainable.

[151]     I am unable to conclude that the Defendant is unemployable given that he did find employment of a less rigorous nature after leaving his physically demanding position. Furthermore, the Defendant found himself in one of those situations where, for the valid reasons he suggested, it might not be prudent to seek employment if the case was going to be concluded within a reasonable time. As the trial lurched from one adjournment to the next the Defendant extended his decision to remain out of the work force.  In the circumstances of this case I cannot conclude that was an unreasonable course of action given the uncertainty of the outcome and possible sanctions.

[152]     The Defendant also described his reason for resigning from his last position as being related to the delays that have been encountered in concluding the trial. On that point I agree with the Crown that the Defendant’s decision was the result of the charges he was facing long before the delays began to mount up.

[153]     I do not accept the Crown's contention that the Defendant's impoverished financial situation is without foundation and is more related to the unanticipated underestimate of the trial time then the overall delay. There were litigation decisions made by Defence counsel which increased the length of time the trial took.  The Crown is also responsible for the underestimation of the trial time.  Those decisions  forced both the Defendant and his counsel to prepare and re-prepare for his evidence as the timeline expanded.  Such additional preparation requires more time and the commensurate increase in expense.

[154]     In addition, it is clear that as a retired person on a fixed income that the length of time the trial took would result in more serious financial implications for the Defendant than if it had been completed in a timely fashion

[155]     The extra costs and hence prejudice to the Defendant were as a result of both the underestimation by both counsel of the total length of the trial and the delay occasioned by those mis-estimates.

[156]     The Crown also discounted the Defendant's embarrassment arising from the local media coverage suggesting that any embarrassment would be largely due to the nature of the charges and not the delay. It is a reality that in most cases a person charged with child pornography offences becomes a pariah among most who are made aware of the charges. In a larger community one can largely be anonymous and the reporting of such events in the media although embarrassing, would be limited to those who know the person.

[157]     In a small community like Quesnel where a person is known by a large component of the community, either personally or by name, having the media (which in many small towns follows court cases quite closely) report on a case every time it appears before the Court would have a much more embarrassing impact than in a large city.  Each time the case is delayed and that fact is reported it can re-establish in the public's eye the Defendant's status as an alleged child pornographer, prolonging the social prejudice.

[158]     Although the term “balancing” is used frequently in the case law it is not meant to be a direct comparison of one factor or factors against another.  Rather, the cases adopt an approach of considering all the factors to come to a conclusion on whether an accused’s   s. 11(b) Charter rights have interfered with to the point that  judicial intervention is required.

[159]     Any charges involving child pornography are serious although Parliament has recognized varying levels of seriousness by dividing such offences from least to most serious among accessing, possessing, distributing and producing provisions of the Criminal Code.

[160]     The community also treats such offences with abhorrence and revulsion because child pornography crimes prey on the most vulnerable of our society, children, and because the victims are re-victimized over and over again by the distribution of the offending material, primarily to anonymous consumers on the Internet all over the world.

[161]     The investigation of such crimes often suffers from inadequate resources. It is also further impeded by the ubiquitous nature of the Internet and the ever evolving and readily accessible software designed to both enable ready access to the material and cloak such access from the authorities.

[162]     The Court must consider those community concerns by examining the term child pornography not in the general sense but within the confines of the specific charges the Defendant faces in this case and how those charges fit into the continuum of less serious to most serious crimes.

[163]     In doing so and when considering the case law the Court must determine the seriousness of these charges as compared to other less serious and more serious charges described in  Askov application cases ranging from impaired driving to drug conspiracies and trafficking to aggravated assault to sexual assault.

[164]     The case law is clear that the less serious and more straightforward a charge is considered the less tolerance the courts and the community will have in delay in having the matter resolved.  Cases that are more serious and more complex may require more time to conclude something the community and the courts are prepared to accept to ensure that cases are, whenever possible, resolved on the merits.

[165]     There is also the factor of public safety to be considered as a case makes its way through the system.  Those who are considered by the Crown and the Court to be of grave risk to the community are often detained pending trial, those who are of moderate but manageable risk are released on bail with conditions, those considered to be of little risk to reoffend are released without conditions.

[166]     Finally, there remains the paramount consideration that a person charged with an offence is presumed innocent until proven guilty and that there is both an overriding community interest and a duty on the Crown to ensure that the determination of a person’s innocence or guilt does not take so long to decide that it breaches their rights under s. 11(b) of the Charter.

[167]     The community's concerns to have matters resolved on the merits of the case in a timely fashion must be examined in conjunction with the delay and prejudice suffered by the Defendant. Actual prejudice must be serious in nature and can be discounted if the Defendant is responsible for a good proportion of the delay. Inferred prejudice can be found even if actual prejudice is not present if there is a very long and unreasonable delay.

[168]     I have considered all the constituent components and the total amount delay occasioned by the prosecution of the Defendant in this case.

[169]     I have also carefully reviewed the evidence of the Defendant concerning the prejudice he alleges and I have considered that evidence in light counsel’s submissions on the topic and the case law. 

[170]     The nature, type and duration of any prejudice has to be considered in light of an individual Defendant’s unique circumstances and then balanced accordingly with the delay and reasons for it and the interest of the community to have cases resolved in a timely fashion and on the merits.

[171]     In this case, I am satisfied, on a balance of probabilities, that the Defendant has adequately demonstrated that overall he has suffered sufficient, specific prejudice of the type, nature and duration to be considered serious and to require judicial intervention on that basis.

[172]     However, even if the specific prejudice complained of was not present in the type, nature and duration necessary to be described as serious, the inherent prejudice of a 54 month total delay, even after discounting the time waived by the Defendant, to the conclusion of this matter requires consideration.

[173]     Such a delay, either when looked at in segments or in total, and when considered within the factors described by Sopinka J., leads me to the conclusion that the Defendant is entitled to the judicial intervention  described in Godin and Morin. 

[174]     As such, it is necessary to grant the Defendant a Judicial Stay of Proceedings on the Information.