IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Kristopher Lawrence Nichols is charged with two counts of fishing not under the authority of a licence issued under the Pacific Fishery Regulations, 1993; the Fishery (General) Regulations; or the Aboriginal Communal Fishing License Regulations and two counts of unlawfully possessing prawns caught in contravention of the Fisheries Act or Regulations as a result of fishing activities that occurred between May 2012 and October 2012.

[2]           On January 21, 2015, this Court found it was satisfied beyond a reasonable that Mr. Nichols was fishing as alleged and was in possession of prawns as alleged.  This Court also found that Mr. Nichols had not established a defence to the charges pursuant to Section 78.6(6) of the Fisheries Act and that subject to determination of Mr. Nichols’ rights under Section 35 of the Constitution Act of 1982 (“Section 35”), the charges had been proven beyond a reasonable doubt.

[3]           This is an Application by Mr. Nichols for a stay of proceedings on the charges against him on the ground that his Charter rights under Section 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time has been infringed.  This Application was filed on December 3, 2015.

[4]           The Application was heard on March 7, 2017, May 18, 2017, and June 12, 2017.  This Application is based upon on the delay arising from the time the Information was sworn, on May 22, 2013 to June 12, 2017.  This trial is scheduled to continue April 9, 2018.  The continuation date was set after the commencement of this Application and the time period from June 12, 2017 to the continuation of the trial on April 9, 2018 was not considered in this Application.

[5]           Crown counsel submits that even though it has been approximately four years from the date the Information was sworn to the hearing of this Application, the actual amount of delay falls below the 18-month presumptive ceiling referred to in R. v. Jordan, 2016 SCC 27.  Defence counsel submits that the total delay in this case to June 2, 2017 far exceeds the 18-month presumptive ceiling.

[6]           Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation.  I am not to parse each day or month as has been the common practice to determine whether each step was reasonably required.  Instead I should step back from the minutiae to adopt a bird’s eye view of the case (see R. v. Jordan, at para. 91).

[7]           Adopting a “bird’s eye view approach” during this 20-month time period, the Crown was ready to proceed to trial in a timely fashion.  On November 27, 2013 and February 9, 2014, the defence sought a lengthy adjournment and specifically accepted responsibility for the delay resulting from those adjournments.  On October 2, 2013, Mr. Nichols did not appear in court.  On October 16, 2013, Mr. Nichols requested an adjournment to retain counsel – some three months after his first appearance.  The time from October 2, 2013 to April 30, 2014 shall be subtracted from this 20-month period.  This delay is attributable to Mr. Nichols’ failing to attend court, not retaining counsel, and seeking lengthy adjournments.  When this matter could not proceed to trial on August 27, 2014, the Court offered trial dates of September 24 and October 9, 2014.  Defence counsel was not available on either dates.  While I recognize that the defence cannot be required to be perpetually available, Court resources were available prior to the December 2, 2014 date accepted by the defence.  Accordingly, the defence is responsible for some of that delay.

[8]           It is my judgment that the time period of October 9^th, the second date offered to defence counsel until December 2, 2014 resulted from the defence unavailability and shall be subtracted.  Finally, the time from the conclusion of the trial, to date of decision shall also be subtracted from the total delay.  It is my judgment that although 20 months elapsed from the date of the swearing of the Information to the date of decision, 8 ½ months was defence delay and 1 ½ months was the time required for decision.  That total of 10 months shall be subtracted from the 20-month delay.

[9]           I appreciate that it has been approximately 2 ½ years since the January 2015 decision.  I appreciate that the Crown sought a Vukelich hearing in 2015; that the Vukelich hearing was adjourned in April 2015 for a lack of court time and did not proceed until December 2015.  That said, upon finding the charges had been proven beyond a reasonable doubt, the onus was on the defence to file a proper Notice of Constitutional Question, provide notice to the Crown with respect to any expert witnesses, and provide a trial plan to the Court so that an appropriate amount of time could be set for this case.

[10]        On January 12, 2017, after numerous court appearances, I determined that I was not satisfied that the defence was in a position to proceed with the Section 35 defence and accordingly, the Court was not prepared to set a trial date at that time.  Adopting a bird’s eye view of what occurred in the approximately 2 ½ years following my decision, recognizing that there was no question that there were challenges in securing court dates due to institutional resources, it is my judgment that the delay is attributable to the defence.  The first Notice of Constitutional Question was insufficient resulting in an order that an amended notice be filed.  There were numerous attempts by the Court to determine witnesses and expert availability.  All of that was not forthcoming from the defence in a timely fashion.  The defence was simply not prepared to proceed.  As the transcripts show, it was not until February 15, 2017 that the defence told the Court that they would not be calling an expert.  This is in no way a criticism of the defence.  This is a complicated defence and the defence has limited resources.  However, in the context of a delay application, recognizing that there were challenges obtaining court time, it is my judgment that the overriding reason was not a lack of judicial resources or the Crown being unable to proceed.  It really was the defence not being able or ready to proceed that has caused the delay.  It is my judgment that the total delay in this case is 10 months.  That amount of delay in no way markedly exceeds what was reasonably required in this case.  Accordingly, the application is dismissed.