



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Ferris,









2013 BCCA 30




Date: 20130125

Docket:  CA039002

Between:

Regina

Respondent

And

Daniel Carl Ferris

Appellant




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Frankel





The Honourable Madam Justice Garson




On appeal from: 
Provincial Court of British Columbia, February 14, 2011
(
R. v. Ferris
, 2011 BCPC 52, Port Coquitlam Information No. 83926-3C)




Counsel for the Appellant:



B.V. Bagnall





Counsel for the Respondent:



T.C. Gerhart





Place and Date of Hearing:



Vancouver, British
  Columbia

September 11, 2012





Further Material Received:



November 7 and 21,
  2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January
  25, 2013





Written Reasons by:





The Honourable Mr. Justice Frankel





Concurred in by:





The Honourable Madam Justice Newbury
The Honourable Madam Justice Garson








Reasons for
Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

Daniel Carl Ferris was convicted by Judge Dyer of the Provincial Court of
British Columbia on charges of production of marihuana and possession of
marihuana for the purpose of trafficking.  He appeals those convictions solely
on the basis that the trial judge erred in dismissing his application for a
stay of proceedings.  In that application Mr. Ferris asserted that his
rights had been violated because he was not charged immediately following his
arrest but, rather, some 12 months later.  His position was, and remains, that
the police and Crown deliberately held back proceeding against him in British
Columbia until a charge in New Brunswick had been dealt with, and that by doing
so, they deprived him of the opportunity to have the charges here resolved sooner.

[2]

For the reasons that follow, I would dismiss this appeal.

General Background

[3]

On April 8, 2009, members of the Royal Canadian Mounted Police Coquitlam
Drug Section executed a search warrant at a residence in Coquitlam.  Mr. Ferris,
who was the only person in the residence, was arrested.  During the search of
the residence the police discovered a marihuana grow-operation in excess of 1500
plants, two firearms, and some money suspected to be counterfeit.

[4]

Shortly after his arrest, Mr. Ferris told the police that a warrant
for his arrest had been issued in New Brunswick.  The police determined that
the warrant related to an outstanding charge of aggravated assault.

[5]

On April 9, 2009, Mr. Ferris appeared before a Provincial Court
judge and was remanded in custody to await transportation to New Brunswick.  He
returned to New Brunswick on April 14, 2009.

[6]

Constable Mick White, the lead investigator on the drug investigation,
began preparing a Report to Crown Counsel on April 8, 2009.  In early June, he
received certificates of analysis confirming that the plants in the residence
were marihuana.

[7]

On June 9, 2009, Mr. Ferris was committed to stand trial in New
Brunswick following a preliminary inquiry.

[8]

On July 6, 2009, Constable White requested an analysis of the firearms and
on July 29th he submitted the suspected counterfeit money for analysis.  He
delivered the firearms to the laboratory on August 6th.

[9]

Constable White was transferred to another investigative section in
early September 2009, but retained responsibility for preparing the Report to
Crown Counsel with respect to Mr. Ferris.

[10]

Also in September 2009, counsel then acting for Mr. Ferris twice wrote
to a lawyer at a law firm that acts as an agent for federal prosecutions in the
Coquitlam area, expressing his concern with respect to the fact that the police
had yet to forward a report to the Crown for the purpose of charge approval. 
He stated that he believed the police were delaying submitting a report to
await the outcome of the matter in New Brunswick.  He further indicated that if
charges were laid in British Columbia, he intended to argue that such
pre-charge delay amounts to an abuse of process.  Constable White received
copies of those letters.

[11]

On October 7, 2009, Constable White gave his report to Corporal Raymond
Stanford for review, even though he had not received any information with
respect to the examination of the firearms and suspected counterfeit money.  On
October 18th, that report was forwarded to the federal prosecution agent for
charge approval.

[12]

The police received a firearms report on November 11, 2009.  No report
was ever received with respect to the suspected counterfeit money.

[13]

In November and December of 2009, the federal agent sent the police a
number of requests for additional information.  The record is silent as to the
nature of those requests or how the police responded to them.

[14]

In February 2010, Mr. Ferriss trial before a jury in New Brunswick
ended in a mistrial.  Also that month, Mr. Ferriss Coquitlam file was
transferred to another law firm that acts as an agent for federal prosecutions. 
On March 17th, a lawyer with that firm had discussions with the police to
obtain information about the file.  The record is silent as to the specific
nature of those discussions.

[15]

On March 29, 2010, the federal agent approved two drug-related charges, five
firearms-related charges, a charge of theft of electricity, and a charge of
possession of counterfeit money.  An information charging Mr. Ferris with
those offences was sworn on April 6th and a warrant issued for his arrest.

[16]

On June 7, 2010, Mr. Ferris was acquitted in New Brunswick.  He was
then arrested on the British Columbia warrant.  He was transported here on June
11th.  At a bail hearing on July 22nd, a Provincial Court judge ordered him
detained in custody.

[17]

Mr. Ferriss case came on for trial on November 22, 2010.  At the
outset of the proceedings, Crown counsel directed stays of proceedings with
respect to the theft of electricity and counterfeit money charges and Mr. Ferris
pleaded not guilty to the remaining seven charges.

[18]

Counsel for Mr. Ferris then advised the trial judge that Mr. Ferris
was seeking a judicial stay for abuse of process.  After hearing extensive
submissions from both Mr. Ferriss counsel and Crown counsel, the trial
judge decided that the entirety of the Crowns case would be called on a
voir
dire
and that during that
voir dire
the witnesses called by the
Crown could be cross-examined with respect to the stay application.  Mr. Ferris
was entitled to call evidence on the
voir dire
in support of his stay
application.  During the
voir dire
an issue arose as to the
admissibility of a statement made by Mr. Ferris and the trial judge agreed
to determine that issue as well without conducting a separate
voir dire
.

[19]

The Crown called several police officers to give evidence directed to
proving the charges.  During cross-examination of some of those officersin
particular, Constable White and Corporal StanfordMr. Ferriss counsel
sought to elicit evidence in support of the abuse of process application.  In
addition, the Crown presented for cross-examination an officer who had been
involved in arranging for Mr. Ferris to be brought back from New
Brunswick.  Mr. Ferris did not call evidence on the
voir dire
.

[20]

On December 21, 2010, the trial judge dismissed the abuse of process
application.  His reasons are indexed as 2010 BCPC 365.  On February 14, 2011,
the judge convicted Mr. Ferris on the drug-related charges but acquitted him
on the firearms-related charges.  Those reasons are indexed as 2011 BCPC 52.

[21]

Mr. Ferris was sentenced on April 6, 2011.  After determining that 14
months on each charge (concurrent) would be a fit custodial sentence, the trial
judge turned to the issue of what credit should be given for pre-sentence
custody.  He held that in the peculiar, unusual and unique circumstances of
[the] case the starting date for that credit should be May 1, 2010 (i.e.,
approximately six weeks before Mr. Ferris was arrested on the British
Columbia warrant).  Calculating pre-sentence custody on a 1.5:1 basis, the
judge credited Mr. Ferris with 17 months in custody.  As that credit
exceeded 14 months, the trial judge sentenced Mr. Ferris to one day in
custody to be followed by probation for one year.

Voir Dire
Ruling

[22]

The trial judge began his reasons with an extensive review of the
evidence relating to how Mr. Ferriss file had been dealt with up to and
including when he was brought back from New Brunswick.  He referred to evidence
given by Constable White that it was the intention of the police to await
developments in New Brunswick before deciding what to do with potential charges
in British Columbia.  The judge noted, however, that Constable White
acknowledged that a decision whether to proceed here was not his to make.  The
judge also referred to testimony from Constable White to the effect that Mr. Ferris
would have been charged sooner in British Columbia had there been no charge
outstanding in New Brunswick and that he could have submitted his report for
charge approval sooner than he did, albeit with some information missing.

[23]

After reviewing the evidence, the trial judge discussed the legal
principles applicable to abuse of process both at common law and under the
Canadian
Charter of Rights and Freedoms
, Part I of the
Constitution Act
,
1982, being Schedule B to the
Canada Act 1982
(U.K.), 1982,
c. 11.  In the course of that review he referred to the fact that in
British Columbia, unlike in some other Canadian jurisdictions, the Crown must
approve charges before they can be laid by the police.  He noted that there was
no evidence before him to suggest that the charge-approval process followed
with respect to Mr. Ferriss file was other than routine, or that anything
done by the police or the Crown had been unnecessary or unwarranted.  After
stating that he would have found such evidence helpful, the judge continued:

[110]    Where the conduct of
certainly the Crown and I expect the RCMP is called into question as in this
case, evidence as to whether alternative courses of action can be and are
regularly or ordinarily followed in B.C. courts or in the process leading up to
trials could give a yardstick of sorts against which to consider the conduct in
issue.

[24]

The judge then summarized the positions of the parties.  In the course
of reviewing the submissions made by Mr. Ferriss counsel that his client could
and should have been charged immediately following his arrest, the trial judge said
this:

[142]    Constable White said the Report to Crown Counsel in
such cases usually takes three to four months.  The evidence on the
voir
dire
suggests this is the first step in B.C. for the laying of charges,
namely, the preparation of a comprehensive Report to Crown Counsel.  The next
step is having the charges reviewed and approved, as occurred here, by federal
Crown counsel engaged by the federal government in drug prosecutions.  The
evidence in this case is that this is the ordinary course for a grow op drug
prosecution.

[143]
I find that the procedure the police used in this
case at bar relating both to their investigation and seeking charge approval is
what they typically do in the ordinary course of their business relating to
grow operation prosecutions.
They did not follow some special or different
procedure.  I think in essence Mr. Bagnalls argument below in paras. 60
to 63 might be seen as a proposal that Mr. Ferris ought to have been due
to his circumstances treated differently by the police and that their
investigation should have been done in some extraordinary way.

[Emphasis added.]

[25]

Later, under the heading Discussion, the trial judge found that there
had been no undue delay in processing Mr. Ferriss file.  He said, in
part:

[172]    I find that this Report to Crown Counsel, which I
have not seen but which has been described to me in the evidence at the
voir
dire
, was a reasonably detailed and sophisticated piece of work which would
have taken some time to author and indeed review.  White said it was created
over a number of months and of course had to be done when he was not engaged in
performing other police duties.

[173]
All in all, I do not find that there was any
unreasonable delay in the preparation of this Report to Crown Counsel
including the wait from early August to early October 2009 when White was
awaiting two reports and no doubt performing other police duties on other cases.
 Nor do I find the short period of time that Corporal Stanford had this report
during the above review process to have been a delay at all and certainly not
an unreasonable one.  Two dates were given by White as to when the Report to
Crown Counsel first got to Ms. Seto namely on October 18th or 20th, 2009.

[174]    I do not find in the circumstances of this case that
there was an inordinate delay unreasonably caused by Corporal Stanford in his
review or one of unreasonable duration.  I assume review of the Ferris Report
to Crown Counsel was not the only task with which this police officer concerned
himself within the period of time October 7th to 20th, 2009.

[175]    It was suggested by Mr. Bagnall in argument
that the police might have been negligent in for example failing to get the
exhibits to the appropriate location for analysis (see para. 53 of his
written argument).  Implicit in this argument is that there was such delay as
to amount to neglect of his duties as an investigator in so doing.

[176]    I am not prepared to make this finding of fact in
the circumstances of this case nor accede to this argument substantially for
the reasons above set out.

[Emphasis added.]

[26]

The judge further found that there was no undue delay attributable to
the Crowns handling of the file.  He noted there was no evidence before him
with respect to the content of the communications that took place between the
Crown and the police after Mr. Ferriss file was forwarded for
charge-approval consideration:  paras. 181  184.  However, he did find that
after the information was sworn on April 6, 2010, steps could have been taken
to serve that warrant on Mr. Ferris in New Brunswick before June 7th.  The
judge opined that the warrant could have been served by May 1st, which would have
brought the charges to Mr. Ferriss attention as of that date:  para. 190.

[27]

The trial judge rejected Mr. Ferriss argument that the police and
Crown deliberately delayed charging him in British Columbiawhat Mr. Ferris
referred to as gatingand found that his ability to make full answer and
defence had not been prejudiced by any delay:

[192]
I do not find that either the Crown or the police
in the period of time from April 8th, 2009 to June 7th, 2010 acted in such a
way so as to deliberately delay or create delay so as to prejudice or deprive Mr. Ferris
of his rights in any way, including his right to make full answer and defence
to the charges before me or to have a fair trial.

[193]
I do not find in this period either that the
Crown or police acted with some ulterior or improper motive.
On the
contrary, unlike the situation in some cases placed before me, for example,
R.
v. Joudrey
[2010 NSSC 230, 211 C.R.R. (2d) 298],
I do not find their
actions have prejudiced Mr. Ferriss ability to make full answer and
defence to these charges at trial.
There is no evidence offered or
argument made for example that as a result of the effluxion of time due to
their actions alone, a witness for example has died or gone missing, or that
evidence is lost.  In this sense, the fairness of Mr. Ferriss trial has
not been prejudiced in this fashion.

[194]
I am not of the view that it has been shown on
the
voir dire
that what the police and Crown counsel did either alone or
acting in concert was done with a view to gating the accused
or to
purposely evade a responsibility to bring charges laid to his attention in a
timely way so that all such known charges could be disposed of in a timely way
(see
R. v. Parisien
[(1971), 3 C.C.C. (2d) 433 (B.C.C.A.)], at p. 437).

[Emphasis added.]

[28]

Lastly, the trial judge held that even if Mr. Ferris had been able
to establish an abuse of process, either at common law or by reason of a breach
of the
Charter
, he would not have found a stay to be an appropriate
remedy:  paras. 200  202.

Analysis

[29]

Mr. Ferris does not contend that either the police or the Crown
acted with
mala fides
towards him or that they deliberately attempted to
interfere with his rights.  Rather, he submits that because of the New
Brunswick charge, the police and the Crown made a conscious decision to delay processing
his file in British Columbia.  He says that he was prejudiced by that delay because
it precluded him from dealing with the charges here sooner.  For example, he
says that he was deprived of the opportunity to serve his sentence on the
British Columbia charges while awaiting trial on the New Brunswick charge.

[30]

Mr. Ferris points to extracts of the evidence, particularly that of
Constable White, which he says support his position.  In response, the Crown
points to other extracts.  No useful purpose would be served by setting out
that evidence in detail.  Suffice it to say that the evidence can be parsed in
ways favourable to each party.

[31]

My principal difficulty with Mr. Ferriss argument is that he is
asking this Court to review and reassess the evidence and to make findings of
fact that the trial judge was not prepared to make.  In particular, he is
asking this Court to find facts which he bears the burden of proving on a
balance of probabilities.

[32]

A trial judges findings of fact and the inferences drawn from those
findings are entitled to considerable deference on appeal.  The standard of
review is a high one.  I had occasion to discuss that standard in
R. v.
Caron
, 2011 BCCA 56, 269 C.C.C. (3d) 15:

[26]      In both the
Charter
and non-
Charter
contexts a trial judges findings of fact are entitled to considerable
deference on appeal.  As Chief Justice McLachlin and Madam Justice Charron
stated in [
R.v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353], in considering
whether evidence has been properly admitted under s. 24(2), the trial
judges underlying factual findings must be respected, absent palpable and
overriding error:  para. 129.  In discussing this restraint on appellate
intervention, Mr. Justice Fish summarized the governing principles in
R.
v. Clark
, 2005 SCC 2, [2005] 1 S.C.R. 6:

9          ... Appellate courts may not interfere with the
findings of fact made and the factual inferences drawn by the trial judge,
unless they are clearly wrong, unsupported by the evidence or otherwise
unreasonable.  The imputed error must, moreover, be plainly identified.  And it
must be shown to have affected the result. ...

[33]

In the case at bar, the trial judge heard from the police officers with
respect to how they processed Mr. Ferriss file and why they did what they
did.  However, there was no specific evidence with respect to Crown counsels
involvement in the charge-approval process.  In particular, there was no
evidence concerning the additional information Crown counsel required before
approving charges against Mr. Ferris.

[34]

Also absent is any evidence to support Mr. Ferriss contention that,
in the normal course of how matters of this nature are handled, the charges would
have been approved earlier than they were, i.e., what the trial judge referred
to in para. 110 of his reasons as evidence establishing a yardstick.  In
other words, Mr. Ferris did not call evidence to establish that the police
could and should have forwarded a report to the Crown prior to October 18, 2009,
or that the Crown could and should have approved charges prior to March 29, 2010.

[35]

Based on the evidentiary record before him, it was open to the trial
judge to make the findings that he did.  It is, therefore, not open to this
Court to come to a different conclusion with respect to how and why events
unfolded.  The facts as found by the judge fully support his conclusion that Mr. Ferriss
file was not deliberately held back because of the charge outstanding in New
Brunswick.

Disposition

[36]

I would dismiss this appeal.

The Honourable Mr. Justice Frankel

I agree:

The
Honourable Madam Justice Newbury

I agree:

The Honourable Madam Justice
Garson


