2012 BCCA 7 R. v. Horner

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	R. v. Horner,
	2012 BCCA 7

Date: 20120110

Docket: CA037127

Between:

Regina

Appellant

And

Jason James Horner

Respondent

Before:	The Honourable Madam Justice Ryan
	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Lowry

On appeal from the Supreme court of British Columbia, April 23, 2009 (R. v. Horner, Vancouver Registry, Docket Number 2476301)

Counsel for the Appellant:	W.P. Riley
Counsel for the Respondent:	B.A. Martland M. Scott
Place and Date of Hearing:	Vancouver, British Columbia November 9 & 10, 2010
Place and Date of Judgment:	Vancouver, British Columbia January 10, 2012

Written Reasons by:

The Honourable Madam Justice Ryan

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Lowry

Reasons for Judgment of the Honourable Madam Justice Ryan

Introduction

[1] This is a Crown appeal from the order of Mr. Justice Leask, pronounced April 23, 2009, staying proceedings against Jason James Horner after finding a breach of his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). The reasons in this case are being released concurrently with R. v. Poloni, 2012 BCCA 8, a second Crown appeal relating to Mr. Horner’s co-accused, who was granted a stay of proceedings for similar reasons by Mr. Justice Leask on June 9, 2009.

[2] Justice Leask’s order was made on the basis of an estimated 62.5-month delay between the laying of charges against Mr. Horner in October of 2004 and the projected conclusion of his trial at the end of December 2009.

[3] In this case, the Crown appellant raises two overarching grounds of appeal. First, the Crown says that the Supreme Court Justice erred in characterizing and categorizing the delay. Second, the Crown submits that the Supreme Court Justice erred in his overall assessment of the reasonableness of the delay and in assessing the prejudice to the respondents caused by the delay.

Factual Background

[4] The Crown alleges the following underlying facts. Mr. Horner was stopped along with another man on September 29, 2004 in a vehicle on the highway near Chilliwack. A search produced 20 kilograms of cocaine from hidden compartments in the vehicle. As the police investigation was ongoing, Mr. Horner was released without being immediately charged.

[5] The police investigation ended just over two weeks after Mr. Horner’s release. It culminated in the arrest of five other men on October 15, 2004. On the same day, Mr. Horner and the others were charged on a four-count Information, each count accusing different groupings of the men of various conspiracies to import cocaine (from the United States) or to traffic in cocaine or marihuana. The conspiracies were alleged to have occurred between January 1 and October 14, 2004. Specifically, Mr. Horner was charged with Robert Della Penna, Robert Muoio, Robert Poloni and James Micklewright that they:

Count 2:

Between the 1^st of June, 2004 and the 30^th of September, 2004 at or near the cities of Burnaby and Vancouver, British Columbia and elsewhere in the Province of British Columbia and in Toronto, Ontario and elsewhere in the Province of Ontario did unlawfully conspire together, the one with the other or others of them, and with Casey WELLS, Liaqat KHAN, Amaran TYAB, Clint FARRELL, Ernest POLONI, Micro PASTRO and Robert FRIEDMAN and with a person or with persons unknown, to commit the indictable offence of trafficking in a controlled substance, to wit: Cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act and did thereby commit an offence contrary to section 465(1) of the Criminal Code of Canada.

[6] As Mr. Riley has summarized in the Crown’s factum, the allegations were that Robert Della Penna and his associates, based in British Columbia, agreed to supply wholesale quantities of cocaine to James Micklewright and others, based in Ontario. The conspiracy was ongoing and entailed at least three specific drug shipments for a total of 38 kilograms of cocaine, all of which was seized by the police. Robert Poloni, who was alleged to have a continuing drug trafficking relationship with Robert Della Penna, was the supplier for the last of the three shipments. James Horner, an associate of Mr. Micklewright, was directly implicated in two of the three shipments.

[7] The allegation was that the first of the three specific transactions took place on June 19, 2004, when Mr. Horner obtained ten kilograms of cocaine from Mr. Della Penna at a Burnaby apartment and then stayed overnight in a hotel room booked by Mr. Della Penna. Mr. Horner then boarded a plane from Vancouver to Toronto, checking a suitcase which the police subsequently seized using a general warrant, recovering the ten kilograms of cocaine.

[8] The second transaction alleged by the Crown, in which neither Mr. Poloni nor Mr. Horner had any direct involvement, took place on June 29, 2004 and involved a further eight kilograms of cocaine, once again seized by the police from a bag checked as luggage on a flight from Vancouver to Toronto.

[9] The third transaction allegedly took place in late September 2004. In the days leading up to this transaction, Robert Della Penna had numerous telephone conversations with Robert Poloni, in which Mr. Poloni agreed to obtain 20 kilograms of cocaine for Mr. Della Penna at a price of $26,000 per kilogram, to be sold to James Micklewright at a price of $27,000 per kilogram. On September 28, 2004, a meeting took place at a house in Burnaby in which Mr. Della Penna provided the 20 kilograms of cocaine to Mr. Micklewright and several associates including Mr. Horner, who subsequently concealed the drugs in the undercarriage of a vehicle with the intention of driving it back to Toronto. It was those drugs that were seized from Mr. Horner’s car when he was stopped by the police on September 29, 2004.

[10] The Crown’s case consisted largely of wiretap evidence derived from a series of six wiretap authorizations granted under Part VI of the Criminal Code. Two of the authorizations were one-party consents permitting the recording of conversations between undercover agents and Mr. Della Penna. The others were conventional wiretap authorizations leading to the interception of communications between Mr. Della Penna and the other accused persons. The Crown’s case against Mr. Horner also included conventional surveillance and drug seizures. The wiretap evidence was a crucial part of the Crown’s case, and much of the litigation comprised defence challenges to its admissibility.

The History of the Proceedings

[11] As noted earlier, Mr. Horner was charged on October 15, 2004. After learning that there was a warrant for his arrest, he turned himself in on November 7, 2004. He was granted bail the following day with a $40,000 cash deposit and subject to conditions that he report to a bail supervisor, continue to reside at his current address, and refrain from applying for a passport, leaving the country or communicating with certain potential witnesses.

[12] By virtue of Rule 6 of the Provincial Court Criminal Caseflow Management Rules, the respondent’s first appearance triggered the Crown’s duty to begin disclosing its case. The record demonstrates that the Crown began complying with the Rule accordingly.

[13] Rule 8 of the Criminal Caseflow Management Rules requires that the Crown and defence attend an arraignment hearing prior to setting a trial or preliminary hearing date. Rule 8(2) provides:

(2) At an arraignment hearing, the judge may

(a) call on the accused to make an election or enter a plea to the charges;

(b) make inquiries to

i. assist in making an informed and accurate estimate about the length of a trial or preliminary inquiry into the matter, or

ii. facilitate the trial or preliminary inquiry, or simplify or dispose of issues;

(d) if there is no trial scheduler for that Court registry, set the time for the trial or preliminary inquiry;

(e) make any order or give any direction that the judge considers necessary to achieve the purpose of these Rules, to facilitate the trial or preliminary inquiry or to simplify or dispose of issues;

(f) adjourn the arraignment hearing to enable compliance with any order made or direction given under paragraph (e);

(g) adjourn the arraignment hearing and refer the accused, if not represented by legal counsel, to consult with duty counsel or other legal counsel of the accused's choice; and

(h) hear one or more applications made in respect of the case, if it is convenient and practicable to the Court and all parties. [Emphasis added.]

[14] On December 30, 2004, a “pre-trial conference” (which I take to be, in effect, an “arraignment hearing” under Rule 8), was set for all accused for February 3, 2005. Because one of the other accused had difficulty retaining counsel, the pre-trial conference was not conducted until April 4, 2005. By that date, Judge Warren had been assigned as trial judge. Mr. Poloni had retained Mr. Rubin to act for him. Mr. Horner had retained Mr. Kayfetz. All six accused elected before Judge Warren to be tried in the Provincial Court. As for time estimates, counsel were agreed that they required two days for applications to cross-examine Crown witnesses on affidavits, one month for voir dires to be held with respect to the admissibility of wiretap evidence, and two months for the Crown’s case to be heard. Judge Warren adjourned the matter to the judicial case manager (known in the Rules as the “trial scheduler”) to book court time accordingly.

[15] Subrules (6) and (7) of Rule 8 provide:

(6) If the judge presiding at the arraignment hearing refers the matter to a trial scheduler for scheduling, the trial scheduler shall

(a) set a time for the trial or preliminary inquiry, as the case may be, or for the hearing of any applications in respect of the case, in accordance with

i. the time estimate determined by the judge, and

ii. any direction given by the judge; and

(b) set a time for the accused's trial confirmation hearing, which time shall not be less than 30 days before the time set for the trial or preliminary inquiry under paragraph (a).

(7) The trial scheduler may, before setting a time under subrule (6), refer any scheduling difficulties that arise to the judge who presided at the arraignment hearing, providing the judge with information about those difficulties.

[16] During the April 4, 2005 pre-trial conference, counsel told Judge Warren that they expected to take a break after the voir dires, and then take the two months required for the trial. There is no explanation on the record as to why counsel wished to break between the voir dires and the main trial. I take it to now be common practice to take such a break so that counsel can assess the case for the Crown on the basis of the evidence the judge has ruled admissible.

[17] Regrettably, there is no record of what took place before the judicial case manager. However, the record shows that before the pre-trial conference of April 4, 2005, Ms. Devlin of the Crown office had written to counsel for Messrs. Muoio, Della Penna, Poloni, Horner and Micklewright:

Further to my letter sent earlier today, I now have had an opportunity to discuss this matter with Mr. Rubin and we have some suggestions in regards to scheduling. Keeping in mind that Mr. Wells does not yet have counsel, we suggest that this matter be scheduled in two parts. In anticipation of Charter challenges, we suggest a 4 week period be set aside for the voir dire followed by another 4-6 weeks for the trial a month or two later. I understand from Mr. Rubin that the Provincial Court Registry has indicated we are looking at scheduling time in early 2006. With respect to Mr. Wells, when he obtains counsel we can deal with any scheduling problems that may arise. ... [Emphasis added.]

[18] On March 9, 2006, defence counsel for Mr. Poloni and Mr. Della Penna appeared before Judge Warren seeking an adjournment of their application to cross-examine on the affidavits underlying the wiretap authorizations, which had been set by the judicial case managers for March 14 and 15, 2006. Counsel informed Judge Warren that four weeks, beginning April 10, 2006, had been set aside for the voir dires and that the application to cross examine could be safely accommodated in those four weeks. Counsel blamed the necessity for the adjournment on the failure of the Crown to make timely disclosure. In reluctantly consenting to the application, counsel for the Crown noted in passing that the trial proper was scheduled to begin in October or November of 2006. (In its factum, the Crown states that the trial proper was set to run from October 4 to November 30, 2006.) Without assigning blame to anyone, the trial judge adjourned the matter to April 10.

[19] On April 10, 2006, several defence counsel continued to complain about disclosure and asked that the matter be put over a week. Counsel for Mr. Della Penna was not ready to proceed. The Crown not only rejected the suggestion that it was failing in its duty to disclose but also suggested that the disclosure had nothing to do with the applications to cross-examine on the affidavits. In the end, Mr. Rubin advised the court that “we’re sort of in agreement that there’s some merit to [Crown counsel’s] suggestion that we put it over and let [counsel for Mr. Della Penna] start off on the leave application when he is better able to do so”. The parties dealt with other matters, such as whether some of the accused would be excused from the proceedings at certain times, and the matter was adjourned to April 18, 2006.

[20] The applications continued on April 18, 2006. The trial judge ruled that the defence could cross-examine a police officer who had sworn affidavits relating to several of the wiretaps. The cross-examination of the police officer on the first wiretap began on April 25 and was continuing on May 10, 2006 when the time that had been set aside for the voir dires expired.

[21] On May 10, 2006, the trial judge and counsel did not consider simply carrying on with the voir dire, but proceeded on the premise that the case would need to be adjourned to find further court time to complete it. The trial judge asked counsel to consider how much time would be necessary to complete cross-examination on the affidavit. She said:

THE COURT: And can we not accomplish anything this afternoon in that regard [referring to defence counsel’s suggestion that a conference with the judge seemed necessary] with respect to finding out or trying to determine or nail down how much time is going to be necessary for various further applications to cross-examine the affiant on other authorizations, and how much time might be -- I certainly would like to hear from counsel, but it seems to me that it might be done in parts rather than having it all done in one fell swoop so that there’s some time for people to gather their thoughts and so forth, including the court. [Emphasis added.]

[22] In the ensuing discussion, it was clear that counsel for Mr. Della Penna was of the view that he would not know how much longer he would need for cross-examination of the affiant on subsequent authorizations before obtaining a ruling on the first. Again, the trial judge sent counsel to the judicial case manager:

THE COURT: ... And so do try to address your minds, at least in some way, over the noon break about what this all might look like in the future, and whether [discrete], you know, times can be set aside because obviously it’s also much easier for the Judicial Case Manager to find [discrete] blocks of time, or days at a time or so forth, or two days and whatever, with respect to various applications to be made. [Emphasis added.]

[23] Later, when counsel for the Crown expressed concern with how long the cross-examination had taken to this point, the trial judge stated that she was expecting that the continuation of the cross-examination would advance “in chunks” before the trial proper was scheduled to continue. It was then that Mr. Rubin advised the court:

MR. RUBIN: I was thinking that we should get, like, say about 10 days or a week in June of next year which is probably the earliest we could get a chunk, and then maybe a chunk in July.

[24] Counsel for the Crown then noted that Mr. Rubin had written to the judicial case managers and had been told that there were “no appreciable chunks of time” until the summer of 2007.

[25] After the lunch break, counsel for the Crown was able to advise the trial judge that two days, July 26 and July 28, 2006, had been obtained for the purpose of argument with respect to the admissibility of evidence obtained from one of the wiretaps.

[26] Counsel for the Crown advised the trial judge that counsel did not press the judicial case manager for two days but rather for “week-long blocks” for further cross-examination in the summer of 2006:

[CROWN COUNSEL]: And I was advised [by the judicial case manager] that to be booking you would be, in some cases, double or triple booking. So there’s no significant block of time in that period.

[27] Since two months were already booked for trial in October and November 2006, it was agreed that this time would be used for cross-examination on the affidavits. Having learned that there was no significant court time available until June of 2007 for the continuation of the trial, counsel agreed to go to the judicial case manager and (allowing for vacation time of counsel) find some time at the end of May, two weeks or so in June and also time in September and October 2007 for completion of the trial.

[28] The voir dires continued with submissions of counsel on July 26 and 28, 2006. On October 3, 2006, the trial judge delivered a 64-page judgment rejecting the defence application that the first of the authorizations for wiretap be set aside.

[29] On October 4, 2006, the proceedings resumed and carried on for a further month with additional cross-examination of the police officer who swore the affidavit in support of the other wiretaps.

[30] On November 6, 2006, the trial judge made a ruling with respect to further Crown disclosure relating to the material on which one of the wiretap authorizations was made. On November 7, 2006, submissions on the validity of another of the wiretap authorizations were put over to November 15, 2006. During the course of that discussion, counsel for the Crown expressed his concern about the length of time the issues with respect to the validity of the authorizations were taking and mentioned that the court had suggested looking into whether time was available in November of 2007. Mr. Rubin, speaking on behalf of Mr. Horner and Mr. Poloni, suggested waiting until the court had made its ruling on the wiretap authorizations (this ruling was scheduled by the court for December 8, 2006) before determining whether more time would be needed.

[31] Counsel returned to court on November 15 for argument on the validity of certain wiretap authorizations. On November 16, this discussion took place between counsel for the Crown and Judge Warren:

[CROWN COUNSEL]: Your Honour sent us away last week to inquire about November, and just so Your Honour knows, we were advised that there were -- you were assigned two long trials ... November 13 to 21^st, and then November 27^th to December 3^rd. And certainly not without Your Honour doing anything we won’t be able to budge the case manager in terms of setting -- having those reassigned and having the court time free up. I have no idea whether there’s court time generally speaking so that another judge can be assigned those trials and whether there’s a courtroom available, but I just raise that because that was the answer we got with respect to November.

THE COURT: Right.

[CROWN COUNSEL]: And if Your Honour wants to do something about that, that’s up to you. But I just raise it as -- in answer to the inquiry as to the availability of next November.

THE COURT: Right. I hesitate to interfere too much with the judicial case managers, who already have a very difficult job.

[CROWN COUNSEL]: Right.

THE COURT: And particularly because there’s a new policy now where ten judges from Robson Square and ten judges from Main Street are going to be interchanged on three-month rotations, and that, of course, will additionally make a very difficult job --

[CROWN COUNSEL]: Scheduling.

THE COURT: -- scheduling for the judicial case managers.

[CROWN COUNSEL]: Right.

THE COURT: Amongst other people.

[CROWN COUNSEL]: Right. No, I suspected that would -- but I wanted to let you know that that’s the inquiry we made, and that was what -- the result, and that we’re powerless to do anything about that, I think.

THE COURT: Right.

[CROWN COUNSEL]: The other thing is that Mr. Rubin mentioned yesterday January of --

THE COURT: 2008.

...

[CROWN COUNSEL]: And when we were looking at setting November, I think the one month addition was my -- was my view, a starting point.

THE COURT: Right.

[CROWN COUNSEL]: Of course my concern being that we’ll see where we’re at in June, and then if at that time it looks like we may need more time, well, we’re not going to get February of ’08. It’s going to be later and later and later. … I’m suggesting that we set actually longer than one month. In fact I’m going to suggest, certainly something unusual in the provincial court, that we sit until we finish, starting in January ’08.

Or, I know that that will cause the judicial case managers all sorts of conniptions, but -- but or we set a significant block of time in which we can later assess, and perhaps agree to give up a couple of weeks so that we sit in chunks over the course of six months, perhaps. And I say that in part because of the experience of this, that we sat, I didn’t count it up, but I would say perhaps two thirds of the dates that we actually had scheduled. And I’m not being critical, because in a long trial sometimes it is more productive not to sit for certain periods of time --

THE COURT: Right.

[CROWN COUNSEL]: -- to continue on in the most expeditious manner possible. So that’s why I say that that might be a way to deal with it.

So I’ll leave that with you, and I’ll try and remember to raise it tomorrow when Mr. Rubin’s here, and I appreciate of course he’s not here when I say this, but – and then the last thing about scheduling is that the next dates are June, and I’m suggesting that there be perhaps a pre-trial conference sometime before June, perhaps two months in advance, or so, so that it’s clear what those dates will be used for, and so that if there are disclosure requests or applications, they be made maybe in advance, if possible. Or at least we know that the first week or days will be used for that rather than the course of a witness’s testimony and interrupting that kind of flow.

So those are my suggestions as to how to best use the time we have, and with respect to whatever additional time we may ultimately require.

...

[COUNSEL FOR MR. DELLA PENNA]: And I don’t know if my friend has turned his mind to the thought of maybe transferring the case to Ontario where they have those special microphones and judicial appointments who can make blocks of time for rulings and all kinds of things. Because we’re just not moving at a good enough pace here in poor old British Columbia.

[32] Submissions on the authorization then under scrutiny continued the next day, November 17, 2006. Before adjourning, Judge Warren raised with defence counsel the Crown’s suggestion from the previous day that the trial resume in January of 2008 and “just keep going until it’s done”. Mr. Rubin said that he was unavailable in February and insisted that they would have a better idea of how long the trial would take once the rulings on the remaining wiretap authorizations were obtained. Judge Warren sent counsel to the judicial case managers to fix a time for a pre-trial conference and adjourned to December 8, on which date she anticipated giving her ruling. On December 15, Judge Warren delivered her judgment on the challenged authorization after a one-week adjournment initiated by the court.

[33] On January 9, 2007, the parties appeared before the trial judge to discuss how the remaining voir dires might be conducted. The trial was adjourned to June 5, 2007. Counsel advised the court that the hearing dates would be June 5-8; June 12-15, and the week of June 25, 2007.

[34] The voir dires resumed in June and continued on the designated days. The trial judge issued reasons for judgment on August 17, 2007.

[35] The trial continued on September 10, 2007 with an application for further disclosure by the defence, which was refused by the trial judge on September 11. On the same day, Mr. Horner advised the court that he was seeking new counsel. The voir dires continued on September 13, 18, 19, and 20. On September 19, Ms. Gaffar confirmed that she had been retained by Mr. Horner.

[36] By September of 2007, the trial judge had set limits for defence counsel with respect to the time they would be given for cross-examination. Nonetheless, concerns again arose about the length of time the voir dires were taking and how the time allotted might be used efficiently. On September 19, during the course of such a discussion in which it was suggested that the trial judge take a day from the time allotted to consider a ruling, the trial judge said:

THE COURT: ...The difficulty is you see, I don’t -- I need the time to think and the thinking time is put on top of my sitting list. When I don’t sit on this matter, it’s not as though I go into my chambers and get to read all this stuff. Another case comes, bingo, it’s ready to go. We’re over booked.

[37] In response to this problem, counsel for the Crown later suggested that perhaps all counsel might approach the administrative judge to ask him to consider allowing the trial judge to work on the case during the time assigned for it without being assigned other cases in the same timeslot. As he put it:

[CROWN COUNSEL]: … It’s our time that’s been -- and I realize of course they’re booked up, but we need Your Honour to be able to look at the material in a timely fashion and give us responses.

[38] The trial judge responded:

THE COURT: ... the problem with that is, is that everything that I don’t do is a burden on my colleagues, and they are quadruple booking every single court every single day in this building and it’s just -- there’s just a -- there’s a lot of factors to be considered.

[39] She continued:

THE COURT: And I’ve had maybe two days out since April 2006 to write and I may have another two in the next four months, but it’s not going to be more than that.

[CROWN COUNSEL]: And I’m certainly not trying to step on Your Honour’s toes in any way. … Just when we don’t finish, we end up taking up more court time too because we didn’t have to book extra days.

THE COURT: I understand.

[CROWN COUNSEL]: And I certainly realize the triple booking in these courtrooms and --

THE COURT: And the case goes on and on and on.

[CROWN COUNSEL]: Yes.

THE COURT: And we’re now January 2008, and is it going to be finished in January 2008, not likely.

[CROWN COUNSEL]: And the only reason I raise it, Your Honour, is I know there is a directive from the Chief Judge’s office that lengthy cases are now to continue so that they’re to be given consideration, and I don’t know if that directive is actually being regularly put into place but --

THE COURT: No, they’re not able to put it in place, unfortunately.

[40] The voir dires continued on September 20 and October 1, 2007. On October 1, Ms. Gaffar, whom Mr. Horner had just retained in place of Mr. Kayfetz, sought and obtained a one-week adjournment so that she could become familiar with the case. The proceedings continued on October 9 and sporadically thereafter until October 24, on which date they were adjourned to January 8, 2008. In the meantime, on November 2, 2007, the trial judge issued her reasons for judgment on the validity of another wiretap authorization.

[41] The proceedings resumed on January 8, 2008. At the beginning of the day, the trial judge referred to the necessity to take special measures in order to finish the trial in a timely fashion. She said:

THE COURT: Yes. All right. It started in 2006. I’ve told the administrative judge, and the judicial case managers that I am to be freed up, whenever counsel have got the time, and someone else is going to take over my rota, things that are settled, other than -- and matters are going to be -- have to be adjourned. I may have to not sit at the Robson Square, whatever. I am going to count on counsel to adjourn other matters. If this were in another court, I know you would be coming to me and saying I have to adjourn this because I have a matter involving seven, eight counsel, six accused, and it has -- the court has ordered that it has to go ahead, and that’s what I’m saying.

[42] Mr. Rubin noted that the case now needed three or four months to conclude and remarked that it would be difficult for him to adjourn other matters scheduled in those three or four months.

[43] During the discussions with respect to trial scheduling, counsel for the Crown said this:

[CROWN COUNSEL]: ... And I think the biggest hurdle is simply getting the six week block of time for Your Honour in this courthouse. I mean, I know that counsel all have busy calendars, but --

THE COURT: Yes.

[CROWN COUNSEL]: -- it’s very difficult to get time in the courthouse --

THE COURT: That’s right.

[CROWN COUNSEL]: -- and so if we know we can get a six week time period --

MR. RUBIN: I gather that the court is saying that the problem of getting Your Honour freed up is now solved and it’s --

THE COURT: I wouldn’t say it’s solved, but it’s -- they have a heads up, they have --

MR. RUBIN: Okay.

THE COURT: -- a red flag, if there is going to be a problem it can be sorted out.

[44] By this time, however, Mr. Rubin had booked time off in July 2008, and the judge had booked a leave of absence based on the expectation that the trial would be finished by the end of January 2008. It was agreed that all counsel would sit down with their calendars to organize a schedule for the completion of the trial.

[45] On January 14, 2008, the court convened to deal with the matter of setting down the continuation of the trial, now expected to take 90 more days. At this point, the obvious problem surfaced ‒ counsel’s calendars were by then filled with other trials and booked vacations. However, on January 16, 2008, counsel confirmed they had obtained six weeks for the trial proper, which would begin November 17, 2008 and continue, in two-week segments, concluding by January 19, 2009.

[46] The voir dires continued after January 14 for four days, after which judgment was reserved. On February 22, 2008, the trial judge issued another ruling with respect to another wiretap authorization.

[47] The voir dires resumed on June 26, 2008 for further submissions, and the matter was put over to October 10 for decision. In the meantime, on July 25, 2008, the trial judge issued reasons for judgment on a s. 24(2) Charter application to exclude evidence earlier found to have been obtained in contravention of the accused’s rights.

[48] On September 30, 2008, counsel received notification that Judge Warren had fallen ill and would not be able to continue as trial judge. On October 10, 2008, the proceedings resumed before Judge Howard.

[49] Argument ensued on October 10, 2008 as to whether Judge Howard could continue the proceedings under s. 669.2 of the Criminal Code, or whether the Code required that they be recommenced. On October 28, Judge Howard ruled that the proceedings must start from the beginning.

[50] On November 12, 2008, the Crown did the only sensible thing it could do in face of the countless delays already encountered in the Provincial Court. It filed a direct indictment in the Supreme Court of British Columbia.

[51] Mr. Horner made his first appearance in Supreme Court on November 17, 2008. He appeared on December 3, 2008 to fix a date for trial. Thereafter, Mr. Horner appeared before Justice Leask a number of times with regard to trial scheduling. It was agreed that dates in March and April would be set for pre-trial motions including Mr. Horner’s application to stay proceedings pursuant to s. 11(b) of the Charter. A voir dire was set to transpire from May 19 through to July 2009, and the trial itself from October 1 to December 31, 2009.

[52] On April 23, 2009, Mr. Justice Leask issued reasons for judgment in chambers staying the proceedings against Mr. Horner.

Supreme Court Reasons for Judgment

[53] As I mentioned earlier in these reasons, the parties were agreed before Justice Leask that the estimated time from the laying of the charges to the anticipated completion of the Supreme Court trial was 62.5 months.

[54] The Supreme Court Justice began by assessing the inherent time requirements of the case to be 12 months. Of this time, he calculated that 5½ months were required for “intake” and six months for trial. The six months would consist of two months of voir dires followed by four months of trial.

[55] In determining the length of delay to be attributed to the actions of the accused, the Supreme Court Justice said this about Mr. Horner:

[21] Neither the accused nor his two counsel have been a significant cause of delay in this case. When Mr. Horner’s current counsel took over his case in September 2007, she asked for a one-week adjournment to allow herself to become familiar with the proceedings to date. This was a clear manifestation of a desire by Mr. Horner and his lawyer to proceed expeditiously. Most trial judges would have been prepared to allow counsel at least one month to read the voluminous materials involve in this case. Taking into account the one week adjournment request, and any other very minor delays associated with this accused, I am prepared to find that this accused was responsible for 2 weeks or ½ of 1 month’s delay to these proceedings.

[56] The Supreme Court Justice found that the Crown and the defence were equally responsible for the delay in failing to realistically estimate the time requirements necessary for the defence challenges to the admissibility of the wiretap evidence. Justice Leask said:

[24] In this case, I find that the underestimate of the time required for the voir dire was jointly attributable to the Crown and the defence. In a case such as this, where the bulk of the Crown evidence comes from intercepted communications, it is too simplistic to treat the length of the voir dire as purely a matter for the defence. The Crown’s responsibility to manage the case includes a responsibility to make realistic estimates of the time required for the “wire” voir dire. Having said that, in this case, I believe the main cause of delay in the Provincial Court was the limits on institutional resources and the under-estimate of the time required for the voir dire did not add significantly to the delay. [Emphasis added.]

[57] Next, the Supreme Court Justice considered limits on institutional resources as a cause of delay. He concluded that, of the 62.5 months between the laying of the charge against Mr. Horner and the end of the scheduled Supreme Court trial, over half of it (32 months) was attributable to scheduling delays. He said this:

[26] A principal [cause] of the delay in this case was the difficulty of scheduling time in the Provincial Court. When the intake period was complete on April 4, 2005, the court scheduled the commencement of the voir dires for April 10, 2006, a delay of 12 months. On May 11, when counsel sought to book extra time for this matter, they were given three weeks in June 2007 ‒ 13 months away ‒ and eight weeks in September and October 2007 ‒ an additional 2 months in the future. Between the end of the hearing on May 10, 2006 to the re-commencement of proceedings on October 4, 2006 there was a 5-month gap. On November 17, 2006, when the Crown suggested that the trial should begin in January 2008 and continue until it was concluded, the court booked January 8-31, 2008 ‒ 14 months into the future. Altogether, provincial court scheduling delays equalled 32 months. [Emphasis added.]

[58] In this paragraph, the Supreme Court Justice has added up the amount of time that passed between each court appearance. I am not sure why he concluded that the delay was 32 months. By my calculation, the total is 46 months.

[59] Having looked at the time that passed between court dates, the Supreme Court Justice then examined the length of time actually taken up by the trial itself. He observed that 5½ months had been consumed by the voir dire. He found that the voir dire should have taken three months to complete. Rejecting the submission that the extra 2½ months resulted from “thorough defence applications” that ought to be attributed to the actions of the co-accused, Justice Leask attributed two months of the delay to the co-accused and two weeks to the Crown. He said:

[31] ... The proceedings in Provincial Court in this case took 88 court days. The Provincial Court sits four days per week. The time spent in court was the equivalent of 22 weeks or roughly 5½ months. Considering the nature of the Crown’s evidence in this case, the inherent requirements of the case involve a substantial allocation of time for challenges to the admissibility of the wire tap evidence. My estimate is that this case required approximately 3 months of court time for wire tap challenges. The extra 2½ months represents part of the delay in this case. From the submissions I have heard and the transcripts I have reviewed, I believe the Crown was responsible for 20% of the extra time spent in the voir dires. Consequently, I attribute one half of a month to the Crown and 2 months to the actions of the co-accused. On these facts I follow the ruling in Farewell and treat those 2 months as neutral.

[60] The Supreme Court Justice found that Mr. Horner waived very little of the time that had elapsed. He accepted that Mr. Horner had waived six months between January 2007 and November 2008 on account of his counsel’s unavailability.

[61] The Supreme Court Justice accepted as a neutral factor the illness of the Provincial Court judge, which necessitated that the proceedings recommence from the beginning. Curiously, he concluded that the Crown had contributed to the delay by six months in preferring the direct indictment. In defending its decision to prefer the indictment, the Crown made this telling submission (reproduced by the Supreme Court Justice at para. 32):

[32] The Crown’s position is:

... that any delay caused by the illness of the trial judge is neutral and cannot be laid at the feet of the Crown. In any event, it has not caused significant delay to date. It is speculative to conclude that had the trial judge not been ill, the trial would have concluded in the time allotted ... Moreover, given the difficulty obtaining additional time in Provincial Court it is not at all certain that the trial would have ended any sooner than it is now scheduled to end. [Emphasis added.]

[62] The Supreme Court Justice rejected this submission, finding that given the illness of the trial judge, “the Provincial Court would have given preferred treatment to the scheduling of this case …” (para. 33). He attributed six months’ delay to the Crown for its decision to directly indict:

[33] ... However, even if the Crown’s speculation is accurate and the end of the trial in Provincial Court would be on the same day as the projected end of the Supreme Court trial, then the applicant here would be entitled to treat the “extra” 6 months as institutional delay caused by limits on institutional resources. In s. 11(b) terms, such institutional delay is chargeable to the Crown. However the issue is examined, it would appear that 6 months’ delay must be attributed to the Crown.

[63] Lastly, the Supreme Court Justice labelled neutral the 3½ months that Judge Howard estimated the wiretap voir dires would take.

[64] Turning his mind to the prejudice suffered by Mr. Horner, Justice Leask felt compelled to infer prejudice as the delay had been sufficiently lengthy. Justice Leask also found actual prejudice, accepting that Mr. Horner’s access privileges to and relationship with his young daughter had suffered on account of the pending charges, that the outstanding charges had produced strain and stagnation in his relationship with his fiancée, and that he had had difficulty healing from a serious workplace injury because of the stress of the outstanding charges and the delays in securing specialist appointments due to ongoing court proceedings.

[65] In reaching his final conclusions about the effect of the trial delay, Justice Leask said this:

[47] In this case, the total delay is 62½ months. I have found that the accused waived 6 months of the time period and was responsible for one-half month of delay. I have accepted the submissions of counsel that the inherent time requirements of this case were 12 months. I have found two other time periods to be neutral in terms of s. 11(b) ‒ 2 months of delay caused by the actions of the co-accused and 3½ months caused by the illness of the trial judge. Altogether, these time periods total 24 months. The remaining 38½ months involve 6½ months of delay attributable to the Crown and 32 months caused by limited resources provided to these litigants by the Provincial Court of B.C. I find that a 38½ month period of delay caused by shortage of institutional resources and action of the Crown occurring within a 62½ month total period of delay to be excessive.

[66] Finally, the Supreme Court Justice referred to the reasons of the late Chief Judge Stansfield in R. v. Fleetwood Forest Products Ltd., 2006 BCPC 548, who said, in allowing a similar application in similar circumstances:

[21] ... the crucial factor in this case is ... that because of the operation of sec. 669.2(3) of the Criminal Code that the defendant now must re-try this case ab initio, whether literally beginning again and being placed back where the parties were on the first day of trial on January 19, 2004, or by securing agreement to proceed by transcripts.

[22] In the unusual and unfortunate circumstances of this case, it is difficult to imagine how this defendant could perceive that it will ultimately receive a fair trial 4½ years after initially being placed in jeopardy through the original swearing of the Information. The defendant has been subjected to a prolonged and obviously very expensive process already, only to be told it must begin again, for reasons wholly unrelated to any fault of the defendant.

…

[26] Once a trial begins in the Provincial Court of British Columbia, it is our responsibility -- as a constitutionally independent court which controls the scheduling of its cases -- to ensure that the trial continue within a reasonable time …

The Grounds of Appeal

[67] At para. 3 of these reasons, I set out the Crown’s overarching grounds of appeal. More particularly, the Crown says:

I. The learned trial judge erred in his characterization of the reasons for the delay, including errors:

a. in his calculation of the inherent time requirements of the case;

b. in failing to characterize the time required to litigate the Charter issues as “actions of the accused”, and in failing to properly address the implications of time estimates in connection with the defence applications.

c. In failing to properly consider the failure of the defence to request sufficient time for defence applications and the “cascading effect” it had on the scheduling of the trial proper.

II. The trial judge erred in finding that the overall delay was unreasonable within the meaning of s. 11(b) of the Charter:

a. The trial judge’s error in failing to properly characterize the reasons for delay caused him to err in assessing the overall reasonableness of the delay under s. 11(b) of the Charter.

b. The trial judge overemphasized the prejudice to the appellants.

c. The trial judge placed too little emphasis on society’s interest in obtaining a trial on the merits.

The Standard of Review

[68] The legal framework applicable to an analysis under s. 11(b) of the Charter was set out by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771 (“Morin”). The question whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) is designed to protect: R. v. Godin, [2009] 2 S.C.R. 3 at para. 18.

[69] The ultimate question is whether the overall delay is unreasonable, considering the causes of the delay, the prejudice, and the interests at stake: R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.) at para. 24.

[70] With respect to a judge’s analysis of the Morin factors, including his or her characterization and allocation of various periods of time, the standard of appellate review is correctness. However, I agree with the Ontario Court of Appeal that a judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error: R. v. Khan, 2011 ONCA 173 at para. 18, leave to appeal ref’d [2011] S.C.C.A. No. 195 (QL); R. v. Schertzer, 2009 ONCA 742 at para. 71, leave to appeal ref’d [2010] S.C.C.A. No. 3 (QL).

Discussion

The First Ground of Appeal ‒ the Characterization of the Reasons for the Delay

[71] As mentioned earlier, Justice Leask calculated the length of time required to conclude the case to be 62.5 months. All parties to this appeal agree with this assessment.

[72] The central issue pursued by the Crown on this appeal is the Supreme Court Justice’s identification and characterization of the reasons for this delay.

[73] Morin specifically directs (at 787) courts scrutinizing reasons for delay to examine the:

(a) inherent time requirements of the case,

(b) actions of the accused,

(d) limits on institutional resources, and

(e) other reasons for delay.

[74] The Crown says that the trial judge erred in his evaluation of each category.

The Inherent Time Requirements of the Case

[75] The Supreme Court Justice assessed the “inherent time requirements” of the case to be 12 months. The Crown submits that he arrived at this conclusion by adding the time required for intake procedures ‒ such as bail hearings, disclosure facilitation, and retention of counsel ‒ to the length of actual court time counsel estimated conduct of the trial to require. As Justice Leask put it:

[20] … Counsel before me are agreed that the period between October 15, 2004 to April 4, 2005 should be categorized as the intake period and that the 5½ months involved are a portion of the inherent time requirements of this case. There is no substantial disagreement between counsel that the voir dire and trial should take approximately 6 months. In total, I find the inherent time requirements of the case, as it is now presented to this court, to be 12 months.

[76] Noting that the parties appeared on April 4, 2005 and set trial dates commencing approximately one year later, on April 10, 2006, the Crown submits that the Supreme Court Justice must have attributed this one-year period solely to limitations on institutional resources.

[77] The Crown says that this approach fails to account for the fact that there were four counts of conspiracy and six accused. It argues that, had the Supreme Court Justice appreciated the complexity of this trial, he would have ascribed more time after the trial date was set to trial preparation as part of the trial’s inherent time requirements. I agree that some of the one-year wait after the 5½-month intake period should be attributed to trial preparation, but no more than one month. I say this because the first part of the trial was to consist of voir dires to determine the admissibility of five wiretap authorizations, and admissibility turned on the cross-examination of one police officer who swore the affidavits used in obtaining the authorizations to intercept all of the communications.

[78] Counsel for the Crown also submitted that the time allotted to the trial itself must be longer than six months as all counsel were agreed that there should be a hiatus between the voir dires and the trial proper, which would allow counsel to prepare for trial with full knowledge of the admissible evidence. I agree that the Supreme Court Justice did not account for this hiatus, nor did he include the time that the trial judge would require to consider the evidence and make her rulings as to admissibility.

[79] When all of these matters ‒ more time for trial preparation, time for the trial judge to consider the applications to exclude evidence, and the planned interval between the voir dires and the trial proper – are considered, a more realistic assessment of the “inherent time requirements” of the trial would be 18 months.

Actions of the Accused

[80] Next, the Crown submits that the Supreme Court Justice erred in failing to attribute actions voluntarily undertaken by the respondents as “actions of the accused”. Justice Leask characterized the time taken for challenges to the wiretap authorization as part of the “inherent trial requirements” rather than as the actions of the accused.

[81] Crown counsel recognizes that the assessment of delay under s. 11(b) is not an exercise in assigning fault or blame for each step in the process, and that all delay that is not waived falls to be considered in the final assessment of reasonableness. The Crown says, however, that different degrees of weight will be attached to the delay depending upon to whom or to what it is attributed: R. v. Ghavami, 2010 BCCA 126, at paras. 44, 52-3, 72.

[82] The Crown submits that had the Supreme Court Justice properly applied settled law, he would have appreciated that a large portion of the delay in this case was the product of defence applications. The voir dires, originally scheduled to begin in Provincial Court on March 14, 2006, eventually concluded on June 26, 2008. Adding this 26.5 months to the four months scheduled for the voir dires in Supreme Court, the Crown says that, of the 62.5 months required to take this case to completion, 30.5 months are attributable to actions of the defence.

[83] The Crown cites Morin in support of its position that the challenges to the wiretap authorizations should be classified as actions of the accused rather than as part of the inherent requirements of the case. Speaking for the majority, Sopinka J. said this about “the actions of the accused” at 793-94:

This aspect of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

An example of such actions is provided by Conway, supra. In Conway, the accused made a number of requests which led to the proceedings being delayed. Those requests included a change of venue motion, changes of solicitor and a request that the accused be allowed to re-elect trial by judge alone. A further example is provided in Bennett, supra, where the accused made an election at his scheduled Provincial Court trial to be tried in the then District Court. This converted a scheduled trial into a preliminary inquiry. While the type of action of the accused in both these cases was unquestionably bona fide, each action contributed to the delay and must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable.

[84] I agree with the Crown that, strictly speaking, the voir dires were not part of the inherent requirements of the trial, but rather attributable to “actions of the accused”. However, in a trial where the Crown’s case is based on evidence obtained from wiretaps, unless a guilty plea is entered, it might be said to be inevitable that the wiretap evidence will be challenged. The applications in the case at bar were not considered by the trial judge to be frivolous. When the dust settled, she ruled invalid two of five authorizations before her illness precluded hearing submissions on the sixth. In my view, the amount of court time taken to complete the voir dires, while attributable to the defence, is not much more than a neutral factor in this case.

Actions of the Crown

[85] That said, Justice Leask did note that counsel underestimated the time required to complete the voir dires by 2½ months, and that two months of that time should be attributed to the accused and two weeks to the Crown.

[86] I agree with Crown counsel that it is erroneous to attribute two weeks of that underestimation to the Crown. The voir dires were initiated by the defence. Defence counsel knew who and what they wished to attack on the application. They were not obliged to disclose their case on the voir dires to the Crown. Without collaboration, such as an agreed statement of facts or outline of legal argument presented by the defence, the Crown had only the defence to rely upon for an estimation of time.

[87] However, to whom the extra time in conducting the voir dires should be attributed is not the Crown’s central point on this appeal. Eighty-eight days were spent on the voir dires ‒ two months longer than anticipated. In a period of just over five years, the two week delay wrongly attributed to the Crown is a quibble.

Institutional Delay and Limits on Institutional Resources

[88] The primary submission of the Crown on these appeals is that 30.5 months of delay should be, but was not, attributed to the defence. This is the amount of time it would have taken to complete the voir dires, including court time and the length of the intervening adjournments.

[89] The Crown submits all of this time can be attributed to the defence because their failure to accurately estimate time required for their applications had a cascading effect on trial scheduling.

[90] Relying on the words of Doherty J.A. in R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.) (“Allen”) at 348, aff’d [1997] 3 S.C.R. 700, the Crown submits that the length of an adjournment made necessary to find additional court time when initial time estimates prove inaccurate must be included as part of the inherent time requirements of a case. And, as Doherty J.A. said at 348:

... The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[91] In Allen, a trial scheduled to complete in four weeks in fact required a further five weeks to finish. The trial did not resume again for six months. Doherty J.A. found that a 3½-month delay would have been acceptable in the circumstances. He concluded that, for different reasons, the Crown and defence were responsible for the rest of the delay.

[92] There is no question that most of the delays in this case were initiated by the failure of defence counsel to properly estimate the time required for the voir dires. Once the time initially scheduled for the voir dires had been used up, counsel could have expected delays of several months before obtaining a continuation date owing the number of defence counsel involved and the busy court calendar. The fact is, however, that these delays were significantly compounded by the paucity of judicial resources.

[93] In detailing the procedural history of this case, I have reproduced much of the discussion between the bench and counsel relating to difficulties encountered in scheduling additional court time for the voir dires. The leading motif running throughout the discussions is not the unavailability of counsel, but rather the inability of the court to find any time, let alone blocks of time beyond two-week segments, to carry on with the trial.

[94] Allusions to scarcity of institutional resources emerge early in these proceedings. As Ms. Devlin noted in her February 28, 2005 letter to counsel, “… the Provincial Court Registry has indicated we are looking at scheduling time in early 2006”, a year into the future. The next time the record discloses significant problems in finding available court time was on May 10, 2006, when the time scheduled for the voir dires concluded and the Crown suggested that two-to-three more months be scheduled. The trial judge suggested continuing the trial in parts so that there would be time for all to gather their thoughts.

[95] Bearing in mind that time for the trial proper was already scheduled for October and November of 2006, Mr. Rubin mentioned that he was thinking that they might find some time, a week or ten days, in June or July of 2007. While this seems a strange request at first, the record indicates that Mr. Rubin had written to the judicial case managers and had been told that there were “no appreciable chunks of time until the summer of 2007.” There were obviously neither “chunks of time” nor any continuous period of time available to finish the voir dires before the scheduled trial dates. The record also reveals that if the parties had insisted on booking time in the summer of 2006, they would be double or triple-booking the trial judge’s calendar.

[96] As a result, the decision was made to use the time scheduled for trial in October and November 2006 for the voir dires, and to find some time in the summer or fall of 2007 to complete the trial. Mr. Rubin had been told by the judicial case managers that only “chunks of time” were available in the summer of 2007 and not a continuous two-month period of time still thought required to complete the trial.

[97] When the case continued in October and November of 2006, time had not been scheduled yet for the trial proper. On November 15, 2006, counsel dealt again with the issue of a trial date. The trial judge had earlier sent counsel to the judicial case managers to find time in November 2007, a year away. On November 16, it became clear that nothing was available until January of 2008, 14 months away.

[98] It was then that Crown counsel suggested that “they do something unusual in the Provincial Court”: beginning in January 2008, they sit until finished. Alternatively, Crown counsel suggested that the court might set “a significant block of time in which we can later assess, and perhaps agree to give up a couple of weeks so that we sit in chunks over the course of six months, perhaps”.

[99] Counsel for Mr. Della Penna then made his cryptic remark about moving the trial to Ontario “where they have those special microphones and judicial appointments who can make blocks of time for rulings and all kinds of things”. While I am not quite sure what counsel meant by that, it appears that he was voicing some concern about the state of judicial resources in the Provincial Court.

[100] The voir dires carried on by fits and starts through 2007. By September of 2007, counsel for the Crown raised with the trial judge the existence of a directive that had been issued by the Chief Judge’s office with respect to lengthy cases, which, in counsel’s words, “are now to continue so that they’re given consideration”. The trial judge responded, “they’re not able to put it into place, unfortunately”.

[101] By January 8, 2008, the date set for trial, the voir dires were still not complete. At this point, the trial judge raised concerns about the time it was taking to complete the voir dires. She said she had taken special measures by insisting on being freed up to carry on with this case. In the course of those discussions, Mr. Rubin mentioned that he had trials booked that would be difficult to adjourn. Tellingly, however, Crown counsel noted that “the biggest hurdle is simply getting the six week block of time for Your Honour in this courthouse”.

[102] When the matter was raised again on January 14, 2008, it was clear that counsel would not be available that summer. Given the scheduling difficulties already encountered, it seems safe to say that no court time would be available in any event. Counsel went to visit the judicial case managers and, upon returning, confirmed that they had set down six weeks for trial to begin November 17, 2008, and to continue in two-week segments until January 19, 2009. Although counsel had earlier been of the view that three more months were required for trial, counsel for Mr. Poloni assured the court that, if the Crown provided them with “the package” of information concerning surveillance evidence, six weeks would be more than enough time.

[103] As I mentioned earlier, the trial judge fell ill in September 2008. Judge Howard had all counsel before her on October 10 to determine the next steps to take in the matter.

[104] To sum up, on every occasion when more time was required, the case was adjourned for at least a year before any time to continue it could be found. While counsel are accountable for inabilities to properly predict the time they would take to complete the trial, I am of the view that Justice Leask was correct in concluding that the delays in this case were largely institutional.

[105] Perhaps the most disturbing aspect of this case is that once it was apparent that counsel had underestimated the length of the time required to challenge the wiretap evidence, it was impossible to reschedule the trial so that it could take place continuously. Instead, the parties staggered through it in bits and pieces.

[106] It is true that after it was first determined that more time would be needed for the voir dires, it was the trial judge who suggested that they try it “in parts”, but it quickly became clear that, because of scheduling problems, the trial would have to be conducted in this manner in any event.

[107] Even after the trial judge expressed her exasperation in January 2008 with the stunted way in which the trial was proceeding, counsel were only able to obtain six weeks of time starting in November 2008 to carry on in two-week segments until January 2009.

[108] The phenomenon of adjourning trials for later continuation is a relatively recent development. In cases tried before a judge and jury, it was thought necessary to specifically provide for it in the Criminal Code.[1] Of course, with more sophisticated means of collecting evidence, the advent of the Charter, and other developments, trials now take a much longer time to prosecute and defend than they did a few short years ago. It is obviously acceptable to weave a hiatus into a trial schedule after the conclusion of Charter applications to allow counsel to assess their positions on what is then apparently the case for the Crown. It is also sensible to take short breaks of a day or even a week or so in the course of a trial scheduled, as this one was, for three months or so. These measures are meant to give counsel time to shore up their arguments, and, in the end, save court time.

[109] I have the Crown’s point that, when counsel underestimate the time that they need to pursue their applications, they can hardly expect to have further court time provided to them at their earliest convenience. Other cases in the system must not be casually pushed aside to instantaneously cure a poor assessment of time. But nothing like that occurred in the case at bar. Here, the voir dires were often adjourned for a year or more because of the lack of time available. Not only were the gaps between the hearings exceptionally long, but once the original time allotted was consumed, the court was usually unable to provide more than a few days at a time for the continuation.

[110] It is hardly a sensible use of time to conduct a trial in a piecemeal fashion. It creates significant problems to have to pick up a voir dire or trial after a year-long break in the proceedings. The accused person must wait for a year before his or her case resumes. Counsel must spend time reacquainting themselves with the case and the evidence, adding extra costs for the client. Witnesses must refresh their memories to the limited extent the passage of time allows. The trial judge winds up ordering transcripts of the evidence previously taken if he or she is to truly appreciate it. Time is wasted in court getting back up to speed, as the record in this case clearly demonstrates. In these circumstances, victims, accused persons, and members of the public are certainly entitled to ask how a trial judge is expected to arrive at a fair conclusion.

[111] In November 2008, when the Crown decided to directly indict to the Supreme Court four years after the charges were laid, only 88 days of voir dire hearings had taken place in the Provincial Court. I cannot say that Justice Leask was wrong in concluding that much of the accumulated and further anticipated delay in this case was attributable to the lack of institutional resources, with the rest owing in large part to neutral causes.

The Application of the Test ‒ Was the Overall Delay Unreasonable

[112] Mr. Riley has nicely summarized the test the Supreme Court Justice was obliged to apply in the case at bar:

84. In the final analysis, the question becomes whether the overall delay in a particular case is reasonable, having regard to the length of the delay, the underlying reasons or causes, the prejudice to the accused’s liberty, security, and fair trial interests, and the societal interests at stake. The reasonableness of the delay is not a function of its length alone, but also its underlying causes, its effects on the accused, and the public interest, which includes the collective interest in seeing cases proceed expeditiously, and the community’s interest in ensuring that alleged transgressions of the criminal law are ultimately determined on their merits [citations omitted]. This balancing of interests is case specific and the factors may be given different weight depending on the circumstances [citations omitted].

[113] The Crown submits that mischaracterization of the reasons for the delay led the Supreme Court Justice to place emphasis on institutional delay where it did not belong. This portion of its argument must fail. While I disagree with aspects of the Supreme Court Justice’s characterization of the delay, correction of those aspects of his analysis would make no difference to the outcome of the case. The central concern of the Supreme Court Justice was institutional delay. For the reasons I have given, the Supreme Court Justice was right in placing the emphasis that he did upon that delay.

[114] In Ghavami, Justices Donald and Huddart said this at para. 52:

[52] In our view, balancing makes sense only if weight is attributed to the causes of delay. Inherent time requirements should receive little if any weight, because they are not attributable to either the state or the accused, and because some delay is inevitable. Actual or inferred prejudice to the accused will be accorded a certain weight, but it may be counter-balanced by delay caused or contributed to by the deliberate actions of the defence. Correspondingly, if the organs of state – Crown, justice system, or judiciary – are responsible for some part of the delay, then the public interest will be entitled to less weight when balanced against the accused’s right to a timely trial, because the protectors of the public interest have failed to live up to the standard expected of them. However, institutional and judicial delays will be accorded less weight than delays actually within the scope of the Crown’s ability to expedite proceedings, because they are not the result of voluntary Crown action. [Emphasis added.]

[115] In the case at bar, the conduct of Crown counsel cannot be faulted. The Crown did everything in its power to move this case along. Unfortunately, the record reveals that the Crown too faced a stone wall when it came to finding time to continue the proceedings. While the Crown should not be faulted, the delays in this case caused by the scarcity of institutional resources were significant nonetheless and properly weighted by the Supreme Court Justice.

[116] The Crown also submits that the Supreme Court Justice mistakenly focussed on the stress Mr. Horner suffered caused by the fact of the charges being laid rather than the fact that the trial was prolonged. I do not need to address this issue. It was open to the Supreme Court Justice to attribute the prejudice suffered by Mr. Horner to the prolonged nature of this trial rather than simply to the inevitable stress likely to be suffered by any person charged in similar circumstances.

[117] The Crown also says that the Supreme Court Justice did not give sufficient weight to the seriousness of the offence in determining whether to stay the charges. In my view, the reasons for judgment demonstrate that the Supreme Court Justice fully understood the nature of the offence with which Mr. Horner was charged. As I read the reasons for judgment, the other factors weighed heavier in the balance.

Conclusion

[118] In Morin, Sopinka J. began his reasons for judgment with this observation (779):

The issue in this appeal concerns the right of an accused to be tried within a reasonable time. This right is enshrined in s. 11(b) of the Canadian Charter of Rights and Freedoms which states:

11. Any person charged with an offence has the right

...

(b) to be tried within a reasonable time;

Though beguiling in its simplicity, this language has presented the Court with one of its most difficult challenges in search of an interpretation that respects the right of the individual in an era in which the administration of justice is faced both with dwindling resources and a burgeoning caseload. [Emphasis added.]

[119] I am mindful of the struggle the Chief Judge of the Provincial Court has described in his effort to stretch dwindling resources in the face of an increasing workload (see Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources, September 14, 2010 and the updates of September 30 and December 31, 2011).[2] While its complement of judges has declined, the Provincial Court has, through rule changes and the implementation of a judicial case management system, attempted to reduce delays in its court. This appeal demonstrates that these prudent measures were insufficient to address the problems this case presented.

[120] Unlike the Supreme Court of Canada in Morin, this Court has not been provided with any statistics or information concerning the chronic delays which, as demonstrated by the discussions between the trial judge and counsel on the record, are obviously occurring in the Provincial Court. Since we know nothing of the administrative context, we do not know, and cannot comment upon, what damage would have ensued had the trial judge untethered herself from the judicial case managers, assumed control of her calendar, set down a continuation for a fixed number of continuous days, and pressed this case to a conclusion.

[121] Before concluding, I note that I have not overlooked the reality that many accused persons are only too happy to accept delays of their trials. As observed by Cory J. in R. v. Askov, [1990] 2 S.C.R. 1199, at 1222 (quoting from the remarks of Doherty J.A.):

Many accused do not want to be tried at all, and many embrace any opportunity to delay judgment day. This reluctance to go to trial is no doubt a very human reaction to judgment days of any sort; as well as a reflection of the fact that in many cases delay inures to the benefit of the accused. An accused is often not interested in exercising the right bestowed on him by s. 11(b). His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits. This view may seem harsh but experience supports its validity.

This unique attitude on the part of accused toward this right often puts a court in a position where it perceives itself as being asked to dismiss a charge, not because the accused was denied something which he wanted, and which could have assisted him, but rather, because he got exactly what he wanted, or at least was happy to have ‒ delay. A dismissal of the charge, the only remedy available when s. 11(b) is found to have been violated, sticks in the judicial craw when everyone in the courtroom knows that the last thing the accused wanted was a speedy trial. It hardly enhances the reputation of the administration of justice when an accused escapes a trial on the merits, not because he was wronged in any real sense, but rather because he successfully played the waiting game.

[122] The Crown did not suggest on this appeal, nor did the record support, that the delays in the case at bar were accepted by the respondent or encouraged by him to gain advantage. This may be the finding in other cases, but it was not so in the case at bar.

[123] In the end, in balancing the full 62.5-month length of the delay, the reasons for it, and the ensuing prejudice to the respondent, along with the seriousness of the offence and the public interest in seeing the charges dealt with accordingly, I cannot say that the Supreme Court Justice erred in law in staying the charges against Mr. Horner for breach of his right to be tried within a reasonable time. In the words of Justices Donald and Huddart at para. 52 of Ghavami, “the protectors of the public interest have failed to live up to the standard expected of them”.

[124] I would dismiss the appeal.

“The Honourable Madam Justice Ryan”

I Agree:

“The Honourable Madam Justice Saunders”

I Agree:

“The Honourable Mr. Justice Lowry”

[1] See subsections 645(1) and (2) of the Code, which provide:

(1) The trial of an accused shall proceed continuously subject to adjournment by the court.

(2) The judge may adjourn the trial from time to time in the same sittings.