IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  The accused's application for a judicial stay is granted as his rights to a trial within a reasonable time was violated 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 offences occurred on November 14th and December 5th, 2012, in Bella Coola.  Briefly stated, they involved unsafe hunting for deer during prohibited 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.  The Information was not sworn until October 28th, 2015.  Trial dates of June 22nd and 23rd, 2017, were scheduled in Bella Coola.  More trial time may be required if an Aboriginal rights claim is made, but that is uncertain and no notice has been given.  The total delay is 19 months and 26 days.  Presumptively, this is contrary to the 18-month ceiling set out in R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631.  The Crown acknowledged there are no exceptional circumstances establishing the reasonableness of the delay beyond the ceiling.

[4]           The next part of the analysis turns to whether the defence waived or caused the delay.  In this instance and for context what occurred prior to the charges being formally laid is also outlined.  At the initiative of the conservation officer in December 2012 steps were taken to have this matter referred for alternate measures.  He met with the Nuxalk Band to discuss this prospect.  The Band then attempted to communicate with the defendant, but without success.  As one reviews Appendix A of the defendant's application, it is quite plain 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 have brought the three-year limitation period for this offence within about one-and-a-half months before expiration.  The defendant's first appearance 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 a process that requires the Crown to facilitate the referral.  There is some conflict as to whether it is first made to the Restorative Justice Worker of the Nuxalk Nation and from there to the Crown or the reverse and then to probation.  Regardless of the specific process, it is one that is driven by the Crown and ultimately their approval of any plan that might be recommended.  A review of the progress of the referral establishes that the defence continually asked the Crown the status of the referral over several remand dates, but for whatever reason, 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 officer in Williams Lake, she had received a referral for restorative justice for the defendant and a meeting was set up, but it did not occur.  The date 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 alternative measures.  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 is distinctly different as the Crown must put into place the process for review of possible alternative measures.  Negotiations are not part of the 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 the multiple adjournments confirms her sustained efforts to pursue alternative measures as an option.  This is not a situation of defence inaction 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 the framework of R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, to be considered while keeping in mind R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631, in determining whether the delay was unreasonable.  The type of analysis undertaking at this juncture is instructively set out in R. v. Dass, (2016) B.C.S.C. 1701, with these words at paragraph 80:

[12]        This was further emphasized in R. v. Cody, (2017) S.C.C. 31.  The assessment of transitional exceptions requires one to be mindful of the Morin elements which is to be done contextually; that is, was there prejudice, what is the seriousness of the offence, and are there institutional delays.  All of which is weighed with an evaluation of counsel's diligence in expediting the process to determine whether the delay was unreasonable.

[13]        In Cody, the court, in review of their decision in R. v. Williamson, 2016 SCC 28 (CanLII), [2016] 1 S.C.R. 741, noted that the seriousness of the offence and prejudice is not to be discounted when evaluating the transitional exception.  These words were used in discussing this at paragraph 70:

[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.