Date: 19981211 Docket: CA023968 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: REGINA APPELLANT AND: RENE JOSEPH FAGAN RESPONDENT Before: The Honourable Mr. Justice Esson The Honourable Madam Justice Prowse The Honourable Madam Justice Huddart Valerie L. Hartney Counsel for the Appellant (Crown) Sidney B. Simons Counsel for the Respondent Place and Date of Hearing Vancouver, British Columbia October 21, 1998 Place and Date of Judgment Vancouver, British Columbia December 11, 1998 Written Reasons by: The Honourable Mr. Justice Esson Concurring Written Reasons by: p. 37, para. 57 The Honourable Madam Justice Prowse Concurred in by: The Honourable Madam Justice Huddart Reasons for Judgment of the Honourable Mr. Justice Esson: [1] The Crown appeals against an order made at the opening of trial granting a judicial stay on the ground that there had been a breach of the right of the accused under s.11(b) of the Charter to be tried within a reasonable time. The charge was one of being in possession of cocaine for the purpose of trafficking. CHRONOLOGY OF EVENTS - FROM ARREST TO SETTING FOR TRIAL [2] The chronology of events from March 12, 1995, to June 26, 1996 is as follows: March 12, 1995 Mr. Fagan was arrested and then released on a promise to appear in court on May 5, 1995, at Terrace, B.C. May 3, 1995 Information 17409 was sworn charging him with possession of cocaine for the purposes of traf- ficking. May 5, 1995 On his first appearance, the matter was adjourned to May 19, 1995 to allow him to obtain counsel. May 19, 1995 Mr. Fagan appeared. He had not yet obtained counsel because, he said, he had not yet been given all the evidence against him. The matter was adjourned to June 2, 1995. June 2, 1995 By this time, Mr. Simons had been retained as counsel and had written to Crown counsel re- questing particulars and copies of documents and requesting that the matter be adjourned from June 2 to June 30, "for election and the setting of a date". The matter was accordingly adjourned to June 30. June 30, 1995 Crown counsel appeared and advised the court that it had been agreed that a preliminary hear- ing should be set for January 22 and 23, 1996. Dec. 14, 1995 The Crown applied for an adjournment of the preliminary hearing from January 22 to May 21 and 22, 1996, because one of its police witnesses was unavailable. In a letter of November 23, 1995, Mr. Simons agreed to that adjournment. The letter reads: RE: R. vs. Fagan - January 22 and 23, 1996 This will confirm our telephone con- versation of November 22, 1995, and your advice that Constable Talvio is not available on the above dates. As is well known, my purpose in life is to make life easier for the Courts, Crown Counsel and the R.C.M.P. I also have a profound dread of watching Crown Counsel grovel and prostrate themselves seeking adjournments so I am constrained to agree to the adjournment sought. I understand the Court in Terrace is set- ting trial dates in April 1996 or later. My secretary will be pleased to provide available dates and arrange a trial date with the Trial Coordinator. Please do not construe this as a consent or acquiescence in any delay of the Trial, but I reserve all "Askov" rights. May 22, 1996 Mr. Fagan was committed to stand trial at the conclusion of the preliminary hearing, which had begun on May 21, 1996. June 17, 1996 After discussions between Crown and defence counsel regarding trial dates, it was agreed that the trial would be set for hearing on Sep- tember 2, 1997. Crown counsel's note of his discussion with Mr. Simons states: [T. p. 35] ... Sid Simons called. He'll go with Sep- tember 97 date even after I offered earlier dates. He'll waive Askov rights and won't make a squawk in that regard. He'll get his client to come in and sign Notice of Trial. June 26, 1996 Crown counsel wrote to Mr. Simons: This is to confirm that the trial date in this matter, in Supreme Court, will be September 2, 1997. Estimated trial length is 3 days. Please find enclosed a copy of the Notice of Trial, signed by your client, Rene Fagan. This is to confirm that prior to setting this trial date, I made some inquiries and had some discussions with you. I offered you an earlier trial date, in Smithers, for March, 1997. I also offered you earlier trial dates in Prince Rupert which were available anywhere between January and April, 1997. I also offered you trial dates in Terrace for April and June, 1997. In choosing the September, 1997 trial date, you agreed to waive all "Askov" rights. I trust that this letter accurately summar- izes our agreement and accurately summar- izes the state of affairs as it exists between us. If you have any further ques- tions or concerns, please contact the writer. No response was made to that letter. It is not suggested that it was not received. [3] There then ensued a rather unusual series of events. Before setting them out, it may be useful to explain some of the institutional and geographical facts which form part of the background. [4] The alleged crime, the arrest of Mr. Fagan, and the court proceedings all took place in Terrace which has a population within municipal boundaries of something over 10,000 and which serves an area outside its boundaries which has a somewhat larger population. It is one of the few communities of sub- stantial size in the vast area of British Columbia which lies north of the lower mainland, south of the Yukon, east of the Pacific Ocean and the Alaskan panhandle and west of the Fraser River and the Rocky Mountains. There are no resident judges of the Supreme Court between Prince Rupert which lies 75 kilo- metres to the west and Prince George which lies some 650 kilometres to the east. Most sittings of the court in Terrace are conducted by judges resident in Vancouver. The closest community to the east in which the court sits is Smithers which lies over 200 kilometres away by road. The usual mode of travel between Terrace and Vancouver is by air. Mr. Simons, who acted for Mr. Fagan throughout, lives and practises in Victoria and so to reach Terrace must make a long and expensive flight involving a change of planes in Vancouver. For that reason, reasonably enough, he did not appear on any of the hearings in this case other than the preliminary inquiry and trial. [5] By June 1996, there was a significant backlog of cases in Terrace and it had become obvious that the scheduled number of sitting weeks was proving inadequate. As a result, Dohm A.C.J. sat in Terrace on July 31, 1996, had all the cases awaiting trial called before him, and ordered that all existing trial dates be vacated. He went on to advise the assembled counsel and parties that a judge would be scheduled to sit in Terrace continuously from September 1996 until all trials were heard. He fixed new trial dates for each of the cases without regard to the wishes of counsel. The date fixed for trial in this case was February 10, 1997, some seven months earlier than the date which had been set by agreement. CHRONOLOGY OF EVENTS - FROM RE-SETTING TRIAL TO TRIAL [6] The chronology of events from July 31, 1996 to November 4, 1997, is: July 31, 1996 R. v. Fagan was set for trial for February 10, 1997. Aug. 2, 1996 Crown counsel wrote to Mr. Simons to advise him of what had taken place and of the new date. There appears to have been no response. Jan. 17, 1997 Crown counsel wrote to Mr. Simons as follows: Further to our telephone conversation of January 15, 1997, this is to confirm our agreement to adjourn the trial of the above-noted matter, previously scheduled for February 10, 1997 in Terrace Supreme Court. As I told you, the reason for the adjourn- ment is that one of the Crown's required police witnesses, Cst. Daley, while involved in police duties in Ottawa, got bucked off a horse and broke his back in December, 1996. I am informed that he is currently in total bed rest in Newfoundland and is in a complete body brace. I am informed that he will not be able to go back to work until at least April, 1997. I have spoken to Irene Blackstone of the Court Registry, and she advised me that she will be calling you up to canvass possible future dates with you. After a date suit- able to everybody has been selected, there will then be a court appearance in Supreme Court to confirm the adjournment and the new date. Ms. Blackstone said that would likely be February 10, 1997, but this court appearance and confirmation date is some- thing you should confirm with her. If you have any further questions, please contact the writer. Feb. 10, 1997 Crown counsel appeared. Neither the accused nor anyone on his behalf appeared when the case was first called and so a warrant was issued. Later in the day, Mr. Fagan appeared. In his pres- ence, and with his agreement, the case was adjourned to October 27, 1997, for trial, and the warrant was cancelled. March 1997 Mr. Fagan, who had been free on interim release to that point, was incarcerated. Although the record is unclear, this appears to have been on the basis that he breached his conditions of release, the breach involving a further alleged offence. June 4, 1997 The trial coordinator in Terrace sent this writ- ten message to Mr. Simons with a copy to Crown counsel: Re: Rene Fagan #17409 According to my records Fagan has been detained in custody with a previously set trial date of October 27, 1997. To date I have received no application for an earlier trial date. If I move this trial ahead would you be ready to proceed? I could make time available the end of June or September. It does not appear that any response was made to that message. Mr. Fagan was released after a bail review on June 16. Oct. 27, 1997 Counsel appeared for the Crown and advised the presiding judge that the trial was to be adjourned "by consent" to November 3. That presumably was necessary because of other cases running over. Nov. 4, 1997 The trial began. At least one Crown witness was called. Sometime during the morning Mr. Simons, without prior notice to the Crown, advised the court that he was making an "Askov application". The hearing of that application began at 2:00 p.m. and ended about 3:30 p.m. The judge then put the matter over until the following morning when he delivered brief oral reasons allowing the application. THE LAW [7] Section 11(b) has been considered in innumerable cases, several by the Supreme Court of Canada, including: R. v. Mills, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Kalanj, [1989] 1 S.C.R. 1594; R. v. Askov, [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449; and R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1. Criteria for the application of s.11(b) were set out in Mills, Rahey and Conway. In Smith, the court, in the words of Sopinka J. in Morin (at C.C.C. 11) "distilled the jurisprudence" in those cases into four basic criteria: (1) the length of the delay; (2) the reason for the delay; (3) waiver of time periods; and (4) prejudice. [8] In Smith and the cases which preceded it, the criteria were considered with relation to the facts of the particular case and only to a limited extent did they lay down rules or principles applicable to all cases. Those cases were dealt with on the basis of the rule, well established by that time, that, in an application under s.24(1) of the Charter, the accused has the ultimate or legal burden of proof throughout with the Crown having a secondary or evidentiary burden of putting forth evidence or argument, a burden which may shift depending on the circumstances of each case. [9] In Askov, a much broader approach was taken in the major- ity reasons of Cory J. In those reasons, great emphasis was laid on the view that "the burden always rests with the Crown to bring the case to trial". The burden upon the accused on the hearing appeared to be reduced to one to bring an applica- tion and point to a period of time which, on its face, seemed excessive. The conventional view of the decision in Askov was that, where the delay appears prima facie to be excessive, the onus is on the Crown to justify the delay. See, for instance, the decision of the Ontario Court of Appeal in R. v. Franklin (1991), 66 C.C.C. (3d) 114, per Griffiths J.A. at p. 121, and the majority decision of the New Brunswick Court of Appeal in R. v. Augustine (1992), 70 C.C.C. (3d) 318, per Hoyt J.A. at p. 330. In the latter case, a seven month lapse of time from plea to trial on a charge of "over 80" was held to constitute a breach of s.11(b). The accused relied solely on that lapse of time and made no attempt to show any other prejudice. [10] The decision in Askov was pronounced on October 18, 1990. The Supreme Court of Canada's decision in Morin was pronounced on March 26, 1992. That case, interestingly enough, arose out of the same type of charge as in Augustine and was almost indistinguishable on the facts save that the lapse of time was 14 months from charge to trial. In the result, the Supreme Court of Canada found the delay not to have been unreasonable. The reason why the court embarked on a review of the subject matter less than 18 months after its decision in Askov was explained thus by Sopinka J. in the first paragraph of his majority reasons in Morin: 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 lan- guage 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 case-load. We are asked in this appeal to re-examine the problem in light of the effect on the administration of justice of our decision in R. v. Askov (1990), 59 C.C.C. (3d) 449, 74 D.L.R. (4th) 355, [1990] 2 S.C.R. 1199. Evidence presented to us indicates that between October 22, 1990, and September 6, 1991, over 47,000 charges have been stayed or withdrawn in Ontario alone. The reaction to this has been mixed. On the one hand, many applaud the result which has in their view unclogged the system of much dead wood in the form of charges that should not have been laid or, having been laid, ought to have been dropped. This, they say, will enable the system to more quick- ly accommodate cases that are more pressing and lessen the period during which alleged criminals are free to roam the streets while awaiting trial. On the other hand, many others deprecate what in their opinion amounts to an amnesty for criminals, some of whom were charged with very serious crimes. They assert that accused persons are discharged when they have suffered no prejudice to the complete dismay of victims who have suffered, in some cases, tragic losses. It seems clear that the majority accepted the view summarized in the last two sentences as the better one. [11] The decision in Morin effectively overruled much of what had been decided in earlier cases and reduced the decision in Askov to a matter of largely historical interest. That is so, notwithstanding that the court confirmed the four criteria identified in Smith, supra, and endorsed in Askov. Sopinka J., at p. 13 C.C.C., said: ... it is now accepted that the factors to be con- sidered in analyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (a) inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources, and (e) other reasons for delay, and 4. prejudice to the accused. [12] Although the factors remained the same, their content was, in major respects, fundamentally altered from what had been laid down in Askov. The only change expressly identified in the reasons was in relation to the factor of prejudice. On that ground, Lamer C.J.C. dissented. After pointing out that the reasons of Cory J. in Askov had placed on the Crown the onus to demonstrate that the delay caused no prejudice to the accused, and that he had dissented from the judgment of Cory J. in Askov to the extent that the latter placed an onus on the accused as regards prejudice only when he seeks a remedy additional to a stay, Lamer C.J.C. went on to say, at p. 6 C.C.C.: Both of my colleagues in their reasons, McLachlin J. somewhat more so than Sopinka J., place the onus on the accused to prove prejudice. This is a fundamental change to the position that this court has taken. While I have never changed my mind as regards my dissenting position, I will, as I should, apply Askov to the facts of this case. Leaving the onus on the Crown, it has shown that Ms. Morin's liberty and fair trial interests have not been affected. But it has not even attempted to show that her security interests have not been affected; by that I mean the kind of prejudice I described in Mills, supra, at p. 539, "stigmatization of the accused, loss of privacy, stress and anxiety result- ing from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction". I conclude that this kind of prejudice has been suffered beyond the length of time that can be legitimately supported on the basis of limited insti- tutional resources. [13] The Askov rule on onus effectively created a presumption of prejudice in relation to "security interest". In practice, it placed on the Crown a burden which in most cases was imposs- ible of being discharged. Only the accused and those close to him can know whether and to what intent he suffered stigmatization, loss of privacy, stress and anxiety, etcetera. Only if the accused must adduce evidence of such matters, is it possible for the Crown to come to grips with the issue. As became apparent shortly after the decision in Morin, placing the onus back on the accused and treating prejudice as an issue of paramount importance was the most significant aspect of the decision. [14] The reversion in Morin to established principles on the burden of proof, affected the content of the four factors in other significant ways. Sopinka J., at p. 14, repeated what he said in speaking for the court in Smith, i.e. that the accused has the ultimate or legal burden of proof throughout. Although Askov had not expressly repudiated or overruled that statement of the law, it effectively did so by holding that the burden was on the Crown once the accused demonstrated a prima facie excessive delay. Morin returned the law on that to the pre- Askov position. [15] Morin also effectively overruled Askov on the first of the four factors, the length of the delay. In Askov, Cory J. had said at p. 490 (C.C.C.) speaking of the period from committal to trial, that: ... "a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable" .... As Sopinka J. said at p. 12 in Morin: It is the interpretation and application of this statement that resulted in the large number of stays and withdrawals to which I have referred. [16] The interpretation and application to which he referred was to effectively treat the six to eight months period as a limitation period. In Morin, Sopinka J. explained the error made by those who so defined and applied Askov in this para- graph at pp. 14-15 C.C.C.: An inquiry into unreasonable delay is triggered by an application under s. 24(1) of the Charter. The applicant has the legal burden of establishing a Charter violation. The inquiry, which can be complex (as may be illustrated by the proceedings in the Court of Appeal in this case), should only be under- taken if the period is of sufficient length to raise an issue as to its reasonableness. If the length of the delay is unexceptional, no inquiry is warranted and no explanation for the delay is called for unless the applicant is able to raise the issue of reason- ableness of the period by reference to other factors such as prejudice. If, for example, the applicant is in custody, a shorter period of delay will raise the issue. At pp. 19-20 Sopinka J. said: The purpose of the suggested period was not therefore that it was to be treated as a limitation period and inflexible. The purpose in expressing a guideline is twofold. First, as I have already indicated, it is to recognize that there is a limit to the delay that can be tolerated on account of resource limitations. Secondly, it is to avoid each application pursuant to s. 11(b) being turned into a trial of the budgetary policy of the government as it relates to the administration of justice. The fla- vour of such a proceeding can be appreciated by a perusal of the voluminous record before the court in this case. Sopinka J. went on, at p. 20, to explain that, in Askov, the court had in some respects misunderstood and misapplied some of the statistical evidence placed before it. At pp. 21-22, he said: Based on the foregoing, it is appropriate for this court to suggest a period of institutional delay of between eight and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of six to eight months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay. * * * These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances. The Court of Appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions and problems of dif- ferent regions in the province. [17] Another important change in approach was the decision to give realistic effect to the fact, not seriously contested by anyone, that, as Sopinka J. put it at p. 23: ... in many cases an accused person is not interested in a speedy trial and that delay works to the advan- tage of the accused. In Askov, Cory J., in discussing the question whether there is a societal aspect to s.11(b), acknowledged that fact at p. 476 C.C.C.. In support of that view, he quoted this comment by the Honourable T. G. Zuber in his Report of the Ontario Courts Inquiry (1987) at p. 73: It is, however, the observation of this Inquiry that those accused of crime and their counsel are often disinterested in trial within a reasonable time. Delay is perceived not as a factor which will impair the ability of the accused to present a defence but rather a factor which will erode the case for the prosecution. He also quoted the comments of Doherty J. (now J.A.) in a paper delivered by him in 1989 in which he said: 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 the accused toward his 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. Following that quote, Cory J. concluded his discussion of that point at p. 476 by noting that those comments indicate that: ... the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused. [18] As was recognized in Morin, the unintended result of the decision in Askov was to allow the right to be, in many cases, an offensive weapon in the hands of the accused. After refer- ring to the comments of Doherty J. and the observation of Cory J. which I have quoted, Sopinka J. went on to say at p. 24 C.C.C.: Action or non-action by the accused which is incon- sistent with a desire for a timely trial is something that the court must consider. [19] To summarize the consequences of the decision in Morin, I adopt the words of Professor Stuart in his one page annotation to R. v. Collins (1995), 40 C.R. (4th) 277. On that appeal as of right from a decision of the Court of Appeal for Ontario reversing the judgment of a trial judge staying the prosecution by reason of unreasonable delay, the Supreme Court of Canada, by a three-two majority, allowed the appeal and restored the stay. In the annotation, Professor Stuart, with customary crispness, said: The record is clear that the torrent of success- ful s. 11(b) challenges under R. v. Askov ... has become a trickle under R. v. Morin.... The right has been substantially curtailed. [Citations omitted.] Reported case law since Morin makes it clear that successful s. 11(b) challenges are now rare and highly unlikely to succeed unless the accused demon- strates serious prejudice. [20] As to the significance of R. v. Collins in relation to s.11(b) applications generally, Professor Stuart said: It is doubtful that this Collins ruling by three justices can be applied further than its facts. It does send a strong message of the consequences for Crown who do not disclose. I agree with that assessment. [21] Since that decision, the only decision of the Supreme Court of Canada on s.11(b) appears to be one drawn to our attention and relied upon by Mr. Simons: R. v. Maracle, [1998] 1 S.C.R. 86, 122 C.C.C. (3d) 97 (S.C.C.). I will refer to that case again at a later point in these reasons. THE HEARING AND THE RULING [22] I noted earlier that the application was brought at trial without prior notice to the Crown and was heard on the after- noon of the first day of trial. The hearing was confused and disorderly. Mr. Simons produced nothing in writing except for copies of some of the letters between counsel. The Crown produced copies of other written communications. Apart from the letters, the facts had to be gleaned from the representa- tions of counsel. After Mr. Simons completed his submissions, Mr. Roth for the Crown submitted that the application should be dismissed because of the failure to give notice. When the trial judge inquired of Mr. Roth whether he was seeking an adjournment, he responded to the effect that an adjournment "with no prejudice to the Crown" would be appropriate but that before applying to adjourn, he wished to speak to his "peace officers" before deciding whether to do so. Asked by the judge if he had anything more to say, he said that he wished to speak to the merits of the obligation and nothing further was said on the subject of adjournment. He did not clearly take issue with Mr. Simons' assertion that R. v. Askov was the "leading case". He drew the court's attention to R. v. Morin through a copy of the headnote which he said "may be of some assistance". Mr. Simons intervened at that point to say: I should say My Lord, I'm - I offer my profound and abject apologies to the Court and my friend for not having had this available in advance but I left it behind. [23] At the conclusion of the submissions the judge adjourned to the following morning and then gave his reasons for granting the stay. His outline of the facts as he saw them include this passage: The most obvious reasons for the delay would be as follows: One, Crown sought and was granted adjourn- ment of the preliminary inquiry date because one of the Crown's witnesses was not able to give evidence at the preliminary. He was scheduled to give evi- dence in a matter before the Supreme Court of British Columbia on the same dates. The preliminary inquiry originally set to proceed on the 21st and 22nd of January, 1996 was rescheduled to the 21st of May, 1996, and was held on the 21st and 22nd May, 1996. Secondly, because of the backlog of cases waiting to be heard in Terrace, Associate Chief Justice Dohm of the Supreme Court of British Columbia, in July of 1996, rescheduled a number of criminal trials in an attempt to clear the backlog. The Fagan trial was rescheduled for February the 10th, 1997. Three, the Crown sought and received an adjournment of the trial because one of the Crown's witnesses had suffered a serious injury and would not be able to give evidence on the adjourned date. The date for trial was set for the 3rd or 4th of November, 1997, at which time the trial commenced. [24] That recital of the facts makes no reference to the fact that counsel for the accused had, on June 17, 1996, held out for a trial date in September 1997, rejected available dates in the period January to June in 1997, and expressly agreed to waive all Askov rights. I also note that the inclusion of the rescheduling of the case by Dohm A.C.J. was included as a cause of delay, although its effect was to advance the trial date by almost six months. In my view, the quoted passage indicates a significant misapprehension of the facts. [25] The trial judge went on to outline the four factors identified in R. v. Smith. On the length of delay, he observed that a delay of two years and six months from charge to trial is prima facie unreasonable. The Crown takes no issue with that conclusion. [26] He then turned to the question of waiver and said that it was not clear whether the accused waived his rights to be tried within a reasonable time. After referring to the conversation with Crown counsel on June 17, 1996 in which Mr. Simons said that he would "go with" the September 19, 1997 date and to the confirming letter of June 26, 1996, he said: It is clear to me that the period of waiver relates to any unreasonable delay between the actual trial date of the 4th of November, 1997, and the last available date in Terrace of June 1997, a period of four months. This is, in my view, not an unreason- able delay. He went on to note the objection by Crown counsel to the absence of notice and said: [9] In the case at bar, it is my view that Crown was not taken by surprise by the Charter challenge. The reservation of Askov rights in November of 1995 should have indicated to Crown that the issue was a live issue at that time. Although the note of Crown counsel indicates a limited waiver, that should not and could not be interpreted by Crown counsel as a waiver of fundamental rights of the accused. To constitute waiver, the words must be clear and un- equivocal. That is not the case here. Conduct of the accused here falls short of waiver. [27] The ruling that the conversation of June 17, 1996, was not an express waiver was, in my view, clearly in error. The exchange was in casual but unambiguous language. It was between experienced counsel who obviously understood what was at stake. The accused did not wish to proceed on the earlier dates which were available. In order to secure the Crown's agreement to a trial date more than 14 months in the future, the accused agreed to "waive all Askov rights". That could only mean that, if the trial proceeded in September 1997, the accused would not assert a breach of his rights under s.11(b). [28] The case for Mr. Fagan in this Court, as I understand it, is that the court's action in vacating that trial date and fixing an earlier date caused the express waiver to cease to have any significance, particularly as subsequent events for which the accused was not responsible resulted in the trial commencing two months later than the date fixed in June, 1996. I see no merit in that contention. Had there been no interven- tion by the court, and had the case proceeded to trial in September of 1997, the accused could not have successfully complained that his s.11(b) rights had been breached. After that intervention, the accused took no position which reduced the force of his counsel's representation in June, 1996 that he preferred a later rather than an early date for trial. [29] In R. v. Morin, Sopinka J., under the heading "Prejudice to the accused", at p. 28 C.C.C., noted that the Crown attorney in that case had made a similar offer (much less definite in its terms) in which he offered to "try to locate an earlier date". Sopinka J. said: It may be unrealistic to suggest that a trial set for approximately two months from the date of this letter could have been significantly moved up but we will never know what would have happened as the accused did not request any action. While the accused was not required to do anything to expedite her trial, her inaction can be taken into account in assessing prejudice. I conclude for this reason that the accused was content with the pace with which things were proceeding and that therefore there was little or no prejudice occasioned by the delay. This accused was not merely content with the pace with which things were proceeding. He agreed without reservation to the adjournment from March 10 to October 27, he ignored the trial coordinator's offer of an earlier date, and he consented to the final brief adjournment from October 27 to November 3. There was a clear waiver, partly expressed and partly implied, to the whole of the delay period in the Supreme Court. [30] The accused did not attempt to show that he suffered prejudice of the kind referred to by Sopinka J. at p. 24 of Morin when he said: Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation". His counsel, however, asserted that the delay had prejudiced the ability of the accused to make full answer and defence: In some cases, and this is one, there is some con- siderable prejudice in the delay. You have heard, My Lord, that the accused has two daughters and a son, and the fact is that his son is now deceased as of about three months ago and it would become signifi- cant when you do look at these documents that the Crown has latterly introduced, because at least one of them is signed by Daniel Fagan and I think there is a second where he purports to be the shipper. I'll have to check that from the originals. The suggestion, of course, was that Daniel Fagan was a poten- tial defence witness. I note that his death, if it occurred three months before the trial began, was during the period of the express waiver made in June, 1996. The vaguely worded sub- mission which I have quoted, unsupported by any evidence or meaningful particulars, was the whole of the case put forward on prejudice. The judge concluded that "no significant measur- able prejudice to the accused resulted from the delay". I see no error in that conclusion. But having made that finding, he went on to say: In summary, the examination of the four factors and the balancing of these factors leads me to the conclusion that the Charter rights of the accused have been violated and a stay of proceedings must be entered, and I so order. CONCLUSION [31] In considering the several factors, the trial judge, in my respectful view, erred in failing to find that almost all of the period of delay after committal for trial was the subject of an express waiver by the accused and the balance was the subject of an implied waiver. The judge also gave excessive weight to the reservation of Askov rights with respect to the four month delay caused by the Crown's application to adjourn the preliminary hearing and, on the other hand, gave no weight to the overall course of conduct of the accused which conveyed the message that he was content, if not desirous, of putting the trial off as long as possible. In this regard, he gave no weight to the principle stated by Sopinka J. in Morin at p. 24 (C.C.C.) that: Action or non-action by the accused which is incon- sistent with a desire for a timely trial is something that the court must consider. In this case, the only reasonable inference from the primary facts is, to again quote from Sopinka J. in Morin at p. 24, (C.C.C.) that this accused was "... in the majority group who do not want an early trial ...". [32] The judge began his analysis by holding a delay of 30 months from charge to trial, to be prima facie excessive in this case. I will note here that the position of Mr. Simons at trial and in this court was that the relevant period was 32 months. He based that on the fact that the accused was arrested two months before he was charged, was released on a notice to appear and thus was "under the thumb of the law" for two months before charge. That view of the matter was laid to rest by the Supreme Court of Canada in R. v. Kalanj, [1987] 1 S.C.R. 588. See also the decision of this court in R. v. Mackintosh (1988), 26 B.C.L.R. (2d) 1 in which it was held that a one year period from the giving of notice to appear to the actual laying of the charge should not be taken into account. [33] However, no issue can reasonably be taken with the view that a 30 month period is too long for a case of this kind. On the law as laid down in Askov, that might well have been a proper foundation for a stay. But the law which must now be applied is that laid down in Morin. On that law, the decision to stay is in my view insupportable [34] That brings me back to R. v. Maracle, supra, by which Mr. Simons sought to support the decision. The decisions of all three courts are reported at the citations given. In that case, the trial judge granted a stay where there had been a delay of 23 and 1/2 months from committal to trial. The Ontario Court of Appeal reversed that decision in a brief endorsement and the Supreme Court restored the stay in brief oral reasons which in their entirety read: L'HEUREUX-DUB J.:-- The majority of Cory, McLachlin and Major JJ. would allow the appeal. In their view, the trial judge carefully considered all the relevant factors referred to by this Court in Askov [reported 59 C.C.C. (3d) 449] and Morin [reported 71 C.C.C. (3d) 1] and made no error in the manner in which he exercised his discretion, L'Heureux-Dub and Iacobucci JJ. dissenting for the following reasons. In their view, the Ontario Court of Appeal was cor- rect in finding error in the trial judge's dealing with the period of delay and the matter of prejudice to the appellant. Balancing all of the relevant guidelines from Askov and Morin, the Court of Appeal properly reversed the stay ordered by the trial judge and so they would accordingly dismiss the appeal. [35] The basis on which the Court of Appeal had set aside the stay was that the trial judge had attributed to the accused responsibility for only a portion of a 10 and 1/2 month period of delay resulting from an adjournment which came about because the accused had retained new counsel who applied for an ad- journment on the eve of trial. As to that, the trial judge said in these passages of his reasons at pp. 99-100: The 10 1/2 month segment from the first trial date to the second is in part the responsibility of the accused. He changed counsel. His new counsel sought an adjournment. But the fully-booked schedule of the Court for so many months was a factor and the system therefore, bears some responsibility for that segment as a further cause of delay. * * * The Crown contends that any accused who changes to a counsel who then seeks an adjournment is demonstrat- ing a lack of desire for an early trial date. That may be so, but when the existing system permits such an adjournment, that system needs the flexibility to make the adjournment for a relatively short period. Trial date bookings at this judicial centre at the time the first trial date was adjourned had a time- -lag of almost eight months before any multi-day trial could be accommodated. We did not have the needed flexibility. It would not be appropriate, therefore, to consider that the request for an ad- journment was a form of implicit waiver of that entire segment of the delay. [36] The trial judge held there was no express or implied waiver for any portion of the delay and also found that the accused had suffered: ... real prejudice in his family life and in his employment. He has also suffered a significant degree of stigmatization and some degree of business loss, both of which can constitute real prejudice. [37] The decision of the Supreme Court of Canada in R. v. Maracle, supra, in my respectful view, stands for nothing more than that, on the particular facts of the case, the trial judge made no error in the exercise of his discretion. As is clear from his reasons, he gave very substantial weight to the particular difficulties which were being experienced in the Central South region of the court at the relevant time. I see nothing in the case which supports the respondent's position. ABSENCE OF NOTICE [38] Although the Crown did not put forward the lack of notice of the stay application as a ground of appeal, something more should be said about it. The errors of the judge were a natural result of the unsatisfactory nature of the hearing which, in turn, resulted from Crown counsel and the court having had no notice of the intention of the accused to apply for a stay. [39] The trial was scheduled for three days. The Crown had its witnesses ready. The case, although involving a serious charge, was not one of special importance. Understandably, Crown counsel was reluctant to seek an adjournment and so he devoted much of his submission to arguing that the application should be dismissed for failure to give notice. He referred to one authority: R. v. Franklin (1991), 66 C.C.C. (3d) 114 in which the Court of Appeal of Ontario expressed the view that an accused who intends to bring a stay application should give notice to the Crown indicating the nature and grounds of the application and setting out evidence in the form of an affida- vit. [40] The case does not, however, support the view that the remedy for failure to do so is to refuse to hear the applica- tion. Indeed, in the end, the court upheld the order for a stay and I know of no case in which want of notice has led, at least after appeal, to a dismissal of the application. The trial judge therefore cannot be faulted for having refused to dismiss the application on that ground although I cannot agree with the stated ground that: "The reservation of Askov rights in November of 1995 should have indicated to Crown that the issue was a live issue at that time." The somewhat ritualistic reservation of rights in November, 1995 was a fact or circum- stance to be considered in deciding whether to allow the application. But, with all respect, it cannot be taken as notice of an intention to make an application, the success or failure of which necessarily depended upon the somewhat complex series of events in the ensuing two years. [41] The transcript makes clear that Crown counsel was caught off guard and that the applicant thereby gained an advantage. Crown counsel did not put forward his submission on want of notice or say anything on the subject of an adjournment until defence counsel had completed his submission which, making no reference to R. v. Morin, emphasized that Askov was the leading case. Well on in his submissions, Crown counsel referred to Morin but did not develop the all important points made in that case. [42] Neither at trial nor in this court did defence counsel offer any explanation for the lack of notice. It is clear that all of the facts relevant to the stay application were known long before trial. [43] The Askov application has not in this Province been a regular feature of criminal cases. The flood which engulfed the Ontario Court system was here, while at times beyond a trickle, at worst a modest intermittent flow. Many judges have had to deal with such applications rarely if at all, particu- larly in the last six years since the law was settled in Morin. Recently, however, there have been indications that their fre- quency is increasing. It may therefore be useful to refer to the decided cases which have dealt with the question of notice. [44] In the first wave of Charter cases in 1983, there was great uncertainty as to the procedure which should be followed where an accused person asserts a Charter remedy. The most frequent type of application was for exclusion of evidence. For a time, it was common for defence counsel to make the application after the evidence had been admitted and the Crown had closed its case. Before long, however, it was established by decisions that the application had to be made before or at the time the evidence was tendered and that, in respect of Charter applications generally, there had to be a reasonable degree of procedural regularity to reflect the principle that both the initial and ultimate burden of establishing a Charter violation rested on the accused. R. v. Hamill (1984), 14 C.C.C. (3d) 338 at pp. 365- 367 (B.C.C.A.) R. v. Collins, [1987] 1 S.C.R. 265; 3 C.C.C. (3d) 1 at pp. 13-14 R. v. Kutynec(1992), 70 C.C.C. (3d) 289 at pp. 295 [45] At least in this province, there is reluctance on the part of both bench and bar to impose strict rules which all too often lead to time wasting procedural technicality. But it has been well understood for many years that some reasonable notice, however informal, should be given to the Crown and that, where necessary, evidence should be in affidavit form. The length of notice and the necessity or otherwise of written evidence, of course, varies depending on the type of applica- tion and the circumstances of the case. The application for a stay based on delay, having regard to the serious consequences and the necessity to impose order on a trail of facts usually extending over two or more years, is one which generally requires a substantial period of notice and written evidence. [46] The earliest reported cases dealing with the question of notice of a stay application appear to have arisen in the period after Askov and before Morin. The first two were decisions of the Ontario Court of Appeal: R. v. M.(G.C.) (1991), 65 C.C.C. (3d) 232 (Ont. C.A.). R. v. Franklin (1991), 66 C.C.C. (3d) 114 In R. v. M.(G.C.), Osborne J.A. for the court said at p. 246: Generally s.11(b) applications are matters for the trial court. For it to succeed, there must be an evidentiary foundation for the application. Absent evidence, the alleged violation cannot be found. In many cases, the history of the proceedings will best be dealt with by an agreed statement of fact. Notice should be given to the Crown. I do not think rigid rules should be established by this court concerning the amount of notice required. It should, at least, be reasonable that is, sufficient to give the Crown an opportunity to respond. [47] In R. v. Franklin Griffiths J.A. for the court said much the same thing, with the added comment that: "Transcripts of the hearings relevant to the application should certainly be delivered and filed." [48] Shortly thereafter the point was touched on in R. v. Augustine, supra. Hoyt J.A., after expressing disagreement with the statements in R. v. M.(G.C.) and R. v. Franklin that an accused "should" give reasonable notice, went on to say at p. 329: The above caveat is only relevant if the use of the word "should" makes the suggested procedure mandatory. I would have no disagreement if the use of the word "should" means only that it is preferable for some sort of notice to be given and if the fail- ure to give advance notice does not prevent the motion from being made and considered. I make the distinction because in all three decisions, "should" is used. [49] R. v. Loewen (1997), 122 C.C.C. (3d) 198 is a decision of the Manitoba Court of Appeal allowing the appeal of an accused against conviction, the ground of setting aside the conviction being that the trial judge had refused to hear an Askov appli- cation because insufficient notice had been given. The deci- sion on appeal was unusual in that the disposition made was to appoint a judge of the trial court as a special commissioner under s.683(1)(e) of the Criminal Code to inquire into the merits of the Charter application. [50] The reasons of Helper J.A., for the court, include an extensive review of earlier authorities. At p. 205 she found, adopting the language of Doherty J.A. in R. v. Loveman, (1992) 71 C.C.C. (3d) 123 (Ont. C.A.) that, in a proper case, a trial judge may refuse to entertain a Charter motion where no notice or inadequate notice has been given. In Loveman, the trial judge had refused to hear an application to exclude the results of a breathalyser test because no notice of the application had been given until the commencement of the trial. The Court of Appeal allowed the appeal and ordered a new trial. [51] In Loewen, Helper J.A. also found the case not to be a proper one for exercising the power to refuse to hear the application. At p. 207 she said: Ideally, an Askov application should be made to the trial judge well in advance of the scheduled trial. The early hearing of the application will allow reserve time for the decision, if required, and will also allow valuable trial time to be used effi- ciently in the event of a decision in the accused's favour. That is precisely why the Queen's Bench Rules require notice of pending Charter applications at the first possible opportunity and preferably at the pre-trial conference, prior to trial dates being set. However, the Rules are not rigid and must remain capable of dealing with issues as they arise. * * * Ultimately, procedural requirements must give way to constitutional rights. On the same page, Helper J.A. expressed the view that failure to give reasonable notice might properly be interpreted by the trial judge as demonstrating absence of pressure or waiver of rights but that such a conclusion could only have been reached on a consideration of the merits of the application. [52] The only British Columbia decision touching on the point which has come to my attention is R. v. MacPherson (13 July 1998), Vancouver Registry No. CC960826. Bennett J. gave lengthy reasons for granting the stay, the application for which was made on inadequate notice requiring an adjournment to permit counsel to get their materials in order. At para. 5 of her reasons Bennett J. said: For the assistance of applications of this type in the future, the minimum material required is an affidavit setting out the chronology and the reasons for the delays and transcripts of every appearance before a court. It is common practice for courts or counsel to address the issue of delay at interim appearances. Unless the judge hearing the application has full information in order to consider the most drastic of remedies available, that is a stay of the proceedings, it is unlikely that these applications will be given consideration. [53] From this review of the cases I distill the following: (1) An accused should give reasonable notice of an intended application for a stay and should provide the Crown and the court with appropriate written material of the kind referred to in R. v. MacPherson. (2) Because of the nature of the application, reasonable notice will often be a period measured in weeks rather than days. (3) The application should, if possible, be made before the day set for trial. I would add that it would seem generally to be preferable that the application be heard by a judge who will not be conducting the trial if the application is refused. In many cases there may be facts relevant only to the application which would be prejudicial to the accused at trial. (4) In some cases, the failure to give proper notice will justify a refusal to hear the motion. (5) In most cases, the only practical remedy for inad- equate notice will be an adjournment of the trial. (6) If an adjournment is granted, it may and generally should be on terms that the accused agree that it be without prejudice to the Crown. [54] Finally, I will add that adjournments of trials resulting from last minute applications are all too frequent. To the extent they could have been avoided, they are a blot on the system, one which brings it into public disrepute. In some cases, of course, late applications are unavoidable. Most often, with a modicum of foresight, they can be avoided. Counsel have, in my view, an obligation to do what they can to avoid causing unnecessary adjournments with their attendant cost in time and money, and creation of disrepute. [55] I emphasize that, because no issue was raised in this court on the absence of notice, what I have said on that subject does not even rank as obiter dicta in the ordinary sense. It is a matter of collecting some authorities and expressing some thoughts which may be of assistance to trial judges and counsel confronted with these problems. In doing that, I speak only for myself. [56] For the reasons set out in paras. 1-37 I would allow the appeal and remit the case for trial. "THE HONOURABLE MR. JUSTICE ESSON" Reasons for Judgment of the Honourable Madam Justice Prowse: [57] I have had the privilege of reading, in draft form, the reasons for judgment of Mr. Justice Esson. With respect, I agree with what he has stated in paragraphs 1 to 37, inclusive. I would prefer not to express an opinion on the issue of notice, commencing at para. 38 of his reasons, until such time as the issue is fully argued before this Court. [58] In the result, I, too, would allow the appeal. "The Honourable Madam Justice Prowse" I AGREE: "The Honourable Madam Justice Huddart"