



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. Horners co-accused, who was
granted a stay of proceedings for similar reasons by Mr. Justice Leask on June
9, 2009.

[2]

Justice Leasks 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.
Horners 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 Crowns 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. Horners car when he was
stopped by the police on September 29, 2004.

[10]

The Crowns 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
Crowns case against Mr. Horner also included conventional surveillance
and drug seizures.  The wiretap evidence was a crucial part of the Crowns 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 respondents first appearance triggered the Crowns
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;

(c)        give
directions to the trial scheduler about the time to be set for the trial or
preliminary inquiry;

(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 Crowns 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 were sort of in
agreement that theres some merit to [Crown counsels] 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 dire
s
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
counsels 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 theres 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 its 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 theres 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 wont 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 theres court time generally speaking so that
another judge can be assigned those trials and whether theres 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, thats 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 theres 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 thats the inquiry we made, and that was what
-- the result, and that were 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 well
see where were at in June, and then if at that time it looks like we may need
more time, well, were not going to get February of 08.  Its going to be
later and later and later.   Im suggesting that we set actually longer than
one month.  In fact Im 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 didnt
count it up, but I would say perhaps two thirds of the dates that we actually
had scheduled.  And Im 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 thats why I say that that might be a way to
deal with it.

So Ill leave that with you, and Ill try
and remember to raise it tomorrow when Mr. Rubins here, and I appreciate of
course hes not here when I say this, but  and then the last thing about
scheduling is that the next dates are June, and Im suggesting that there be
perhaps a pre-trial conference sometime before June, perhaps two months in
advance, or so, so that its 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 witnesss 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 dont 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 were 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 Crowns suggestion from the previous day that the trial resume in
January of 2008 and just keep going until its 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 dont -- I need the time to think and the thinking time is put on
top of my sitting list.  When I dont sit on this matter, its not as though I
go into my chambers and get to read all this stuff.  Another case comes, bingo,
its ready to go.  Were 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]:  Its our
time thats been -- and I realize of course theyre 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 dont do is a burden on my colleagues,
and they are quadruple booking every single court every single day in this
building and its just -- theres just a -- theres a lot of factors to be
considered.

[39]

She continued:

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

[CROWN COUNSEL]: And Im certainly not trying to step on
Your Honours toes in any way.  Just when we dont finish, we end up taking up
more court time too because we didnt 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 were 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 Judges office that
lengthy cases are now to continue so that theyre to be given consideration,
and I dont know if that directive is actually being regularly put into place
but --

THE COURT: No, theyre 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.  Ive 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 thats what Im 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]: -- its very difficult to get time in
the courthouse --

THE COURT: Thats 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 its --

THE COURT: I wouldnt say its solved, but its -- 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 ‒ counsels 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 accuseds 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. Horners 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 dire
s 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.
Horners 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 months 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 Crowns 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 Crowns 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 counsels 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 Crowns 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 Crowns 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. Horners
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 Crowns 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 judges 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 societys 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 judges 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 judges 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 refd [2011] S.C.C.A. No. 195 (QL);
R. v.
Schertzer
, 2009 ONCA 742 at para. 71, leave to appeal refd [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 Justices 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,

(c)      actions of the Crown,

(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 trials 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
Crowns 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 Crowns 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, affd [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 judges
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 Judges office with respect to lengthy
cases, which, in counsels words, are now to continue so that theyre given
consideration.  The trial judge responded, theyre 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]
Charter
Charter
[109]

I
have the Crowns 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 accuseds 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 communitys
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 Justices 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 accuseds 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 Crowns 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]
[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]
Code
(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.

[2]
http://www.provincialcourt.bc.ca/reportsofthecourt/index.html
