R. v. Williams, 2017 BCPC 242 (CanLII)
Citation: R. v. Williams Date: 20170816
2017 BCPC 242 File No: 17073-1
Registry: Sechelt
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
SABINE RUTH WILLIAMS
RULING ON AN APPLICATION FOR A
JUDICIAL STAY OF PROCEEDINGS
OF THE
HONOURABLE JUDGE S.M. MERRICK
Counsel for the Crown: Trevor Cockfield
Counsel for the Defendant: Brian Mickelson
Place of Hearing: Sechelt, B.C.
Date of Hearing: August 8, 2017
Date of Judgment: August 16, 2017
[1] Sabine Ruth Williams is charged that on or about the 20th day of December 2015, at or near Roberts Creek, in the Province of British Columbia, while her ability to operate a motor vehicle was impaired by alcohol or a drug, she had the care and control of a motor vehicle. She is also charged that on that same date at or near Roberts Creek, having consumed alcohol in such quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, had the care and control of a motor vehicle.
[2] This is an application by Ms. Williams for a judicial stay of proceedings of the charges against her on the ground that her Charter rights under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time has been infringed.
[3] Crown and defence agree that the amount of delay in this case is 18 months and 12 days and therefore exceeds the presumptive ceiling referred to in R. v. Jordan, 2016 SCC 27.
[4] Crown counsel concedes that there are no exceptional circumstances to rebut the presumption that the delay in this case is unreasonable. Crown counsel submits however that since this case commenced prior to the decision in Jordan, a transitional exceptional circumstance applies.
THE CASE LAW
[5] For cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of the Jordan decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment sensitive to the manner in which the previous framework applied and the fact that the parties’ behaviour cannot be judged strictly, against the standard for which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role on whether delay was unreasonable under the previous framework. For cases currently in the system, such as this case, these considerations can therefore inform whether the parties’ reliance on the previous state of law was reasonable. Of course, if the parties had time following the release of the Jordan decision to correct their behaviour, and the system has had some time to adapt, I must take this into account (see R. v. Jordan at para. 96).
BREAKDOWN OF TIME FROM SWEARING OF THE INFORMATION TO THE DATE OF HEARING OF THE APPLICATION
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Information sworn: |
January 27, 2016 |
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First appearance: |
February 17, 2016 |
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Second appearance: |
March 16, 2016 |
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Third appearance: |
March 30, 2016 |
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Fourth appearance: |
April 3, 2016 |
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Fifth appearance awaiting particulars: |
May 11, 2016 |
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Sixth appearance awaiting particulars: |
May 25, 2016 |
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Seventh appearance: |
July 20, 2016 |
Substantial disclosure provided. |
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Eight appearance: |
August 17, 2016 |
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Ninth appearance: |
September 14, 2016 |
Trial date set for February 8 and 9, 2017. |
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Tenth appearance: |
October 12, 2016 |
Crown application for adjournment granted. New trial date: March 21 and 22, 2017. |
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Eleventh appearance: |
December 7, 2016 |
March 21 to 22, 2017 trial date canceled due to expected lack of court time. |
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Twelfth appearance: Third trial date and date of hearing of this application |
August 8, 2017 |
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ANALYSIS
[6] Crown counsel submits that relying on the Morin framework, there was an intake period which would be deducted from the overall delay. Crown counsel suggests in this case that would be approximately two months, which would reduce the delay below the presumptive ceiling. Crown counsel further submits that considering that factor and the absence of prejudice in this case, the transitional exception has been established. While I agree with Crown counsel that the defence has not shown prejudice in this case, I disagree that the Crown has established a transitional exception for the following reasons:
1. It took five months for the Crown to provide substantial disclosure to Ms. Williams – an unexplained and an excessive amount of time.
2. I appreciate the practice of not setting dates until the rota was published has been subject to much criticism. I further take into account that that practice was not used this year. However, a decision was made by the scheduler after the release of the Jordan decision in July 2016 not to set trial dates for 2017 until September 2016 so that she could review all cases that needed to be set and respond to the Jordan decision. The result in this case was a February 2017 trial date – approximately 12 ½ months after the date the Information was sworn and therefore responsive to the Jordan decision.
3. While I find no fault with the Crown applying for an adjournment of the February 2017 trial date to accommodate a police officer’s need to attend a training program, by that time the Crown was aware of the Jordan principles.
4. When this case needed to be rescheduled in December 2016 because the March 2017 dates were not available due to an expected lack of court time, the Jordan ceiling was discussed. In what I would characterize as a misstep, Crown counsel advised the court that the proposed August 8th trial date would “bump up” but not exceed the 18-month presumptive ceiling. That of course was incorrect.
5. While I recognize change takes time, change occurred in March and April of 2017 in Sechelt respecting the setting of trial dates. A significant number of court dates were added to the Sechelt Court calendar and a new approach was adopted regarding scheduling in Sechelt. Crown counsel was aware of this. In this case, Crown counsel made no effort to seek an earlier trial date despite the additional days being added to the Sechelt trial calendar.
6. While I appreciate hindsight is 20/20, there actually was time available within the 18-month ceiling for this case to be heard because of the additional days that were added. (Points 2, 5 and 6 are based on my knowledge of this registry.)
7. While there is no way of knowing whether that additional time would have been used for this case, the point is, the Crown never inquired. I characterize that as a mistake. This is a small registry. The Crown is required to contact the scheduler in Sechelt and make inquiries regarding the ever-changing trial schedule.
[7] As noted by the Supreme Court of Canada, the presumptive ceiling will not permit the parties or the courts to operate business as usual. The ceiling is designed to encourage conduct and the allocation of resources that promote timely trials (see R. v. Jordan, para. 107).
[8] In this case, it is my judgment that the Crown had time following the release of Jordan to change its behaviour and the system had time to adapt and did adapt.
[9] That said, the requirement for Crown counsel to make inquiries with the scheduler is actually not new. The onus is on Crown counsel to bring Ms. Williams to trial (see R. v. Askov, [1992] S.C.R. 1199). Moreover this court has required Crown counsel to be in contact with the scheduler about cases when delay is an issue (see R. v. Flumerfelt, 2011 BCPC 389 (CanLII), 2011 BCPC 0389, at para. 23).
[10] For the seven points that I have referred to, I am not satisfied that the Crown has shown that the time this case has taken is justified based on a reasonable reliance on the law as it previously existed. Accordingly, this application is granted. Both counts are stayed.
_______________________________
The Honourable Judge S.M. Merrick
Provincial Court of British Columbia