



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Farewell,







2008 
          BCCA 9



Date: 20080114

Docket: CA034769

Between:

Regina

Respondent

And

Robert 
    Kelly Farewell

Appellant




Before:


The 
          Honourable Mr. Justice Smith




The 
          Honourable Mr. Justice Thackray




The 
          Honourable Mr. Justice Lowry








D.M. 
          Rosenberg and
K. Gounden


Counsel for the Appellant




P.W. 
          Hogg


Counsel for the Respondent (Crown)




Place 
          and Date of Hearing:


Vancouver, British Columbia




16 October 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




14 January 2008








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Thackray




Concurred 
          in by:




The 
          Honourable Mr. Justice Smith

The 
          Honourable Mr. Justice Lowry



Reasons 
    for Judgment of the Honourable Mr. Justice Thackray:

[1]

This appeal by Mr. Farewell is from his conviction for possessing and 
    producing marijuana in an amount exceeding three kilograms for the purpose 
    of trafficking contrary to ss. 5(2) and 7(1) of the
Controlled Drugs 
    and Substances Act
, R.S.C. 1996, c. 19.  His conviction was pronounced 
    on 10 January 2007 following a trial before Madam Justice Humphries.  Tamara 
    Lynne Farewell was also found guilty on both counts, but this appeal is only 
    by Mr. Farewell.

[2]

Mr. and Ms. Farewell were convicted after police seized marijuana plants 
    from their property pursuant to a search warrant obtained by way of a telecommunication 
    rather than by personal appearance before a Judicial Justice of the Peace 
    (JJP).

[3]

The trial commenced with a
voir dire
to determine whether section 
    8
Charter
rights had been breached by an illegal search and 
    seizure and, if so, whether the seized evidence was admissible pursuant to 
    section 24(2) of the
Charter
.  The judge held that the search 
    was conducted in violation of section 8 rights, but the administration of 
    justice would not be brought into disrepute by the admission of the evidence 
    obtained by the search.  Her reasons for judgment on the
voir dire
can be found at 2006 BCSC 372.

[4]

Following the decision on the
voir dire
, the accused alleged 
    that their rights to trial without delay pursuant to s. 11(b) of the
Charter
had been infringed and applied for a stay of proceedings.  The judge held 
    that the accused had not met their burden of establishing that their right 
    to trial within a reasonable time had been breached by Crown and/or institutional 
    delay, had not established that the delay itself was unreasonable and had 
    not suffered prejudice from the delay to such a degree that a stay of proceedings 
    was justified.  Her reasons for judgment on the s. 11(b) application can be 
    found at 2006 BCSC 1658.

Issues on Appeal

[5]

The appellant sets out the following grounds of appeal:

1.       
    The learned trial judge erred in admitting the evidence obtained from a warrantless 
    and unreasonable search.  In so doing, she failed to properly apply established 
    legal principles and made unreasonable findings which were not supported by 
    the evidence.

2.       
    The Learned Trial Judge erred in refusing to stay the proceedings as a result 
    of the violation of the Appellant's right to trial within a reasonable time.  
    In so doing, she confused the onus of proof on the application and made findings 
    of fact unsupported by the evidence.

3.       
    The Learned Trial Judge reached conclusions of fact without any evidentiary 
    basis and took judicial notice of facts which were controversial and in issue.

Appeal on the
Voir Dire

1.         Background

[6]

The appellant accepts the findings of fact made by the judge with respect 
    to the
voir dire
.  I will therefore summarize the relevant findings 
    of fact as they emerge from the judges reasons for judgment.  The Information 
    to Obtain a Search Warrant by Telecommunication was completed by Constable 
    Sheri McAuley of the Trail detachment of the RCMP.  The first paragraph 
    reads:

This 
    is the information of Cst. Sheri McAuley, a peace officer of the City of Trail, 
    in the Province of British Columbia, (the informant), submitted before a 
    justice by telecommunication that produces a writing because it is impracticable 
    for the informant to appear personally because: there are no Judicial Justices 
    of the Peace or Judges available.

[7]

This was Constable McAuleys second involvement with a warrant application.  
    Her understanding was that within the Trail detachment it was common knowledge 
    that there were no Judicial Justices of the Peace available in the Trail area.  
    The detachment therefore used faxed applications to the Judicial Justice Centre 
    to obtain telewarrants.

[8]

Constable McAuley made a draft of the Information to Obtain and had 
    it reviewed by senior officers.  It was then faxed to the Judicial Justice 
    Centre and the warrant was issued.  The preamble to the warrant begins 
    with these words:

WHEREAS 
    it appears on the oath/affirmation of Cst. Sheri McAULEY, a peace officer 
    in the City of Trail, Province of British Columbia, that there are reasonable 
    grounds for dispensing with an information presented personally and in writing; 
    []

The 
    warrant goes on to state that a controlled substance is to be found in the 
    outbuildings of Tammy and Kelly Farewell and authorizes entry between 4:30 
    p.m. and 8:00 p.m. on 11 February 2004.

[9]

Directives from the Chief Judge of the Provincial Court state that 
    an inquiry is to be made as to the availability of a JJP if the application 
    for a warrant is made during court hours.  Constable McAuley did not do so 
    even though the final draft of the Information to Obtain was completed at 
    approximately 3:00 p.m.  She knew a JJP occasionally sat in traffic court 
    in Rossland, the registry nearest to the Trail detachment, but she thought 
    traffic court only convened once every two months.

[10]

Having obtained a warrant, Constable McAuley proceeded to the Farewell 
    residence and knocked on the door.  While speaking to a boy who answered Constable 
    McAuley received a radio communication from other officers that the accused 
    had been located in an outbuilding.  She went there and served the warrant.  
    A search of the outbuilding resulted in the seizure of 74 two-foot plants, 
    633 four-inch plants and assorted paraphernalia associated with what is commonly 
    called a grow-op.

[11]

The
Criminal Code
provides as follows:

487.1 
    (1)          Where a peace officer believes that an indictable offence has 
    been committed and that it would be impracticable to appear personally before 
    a justice to make application for a warrant in accordance with section 256 
    or 487, the peace officer may submit an information on oath by telephone or 
    other means of telecommunication to a justice designated for the purpose by 
    the chief judge of the provincial court having jurisdiction in the matter.



(4)        
    An information submitted by telephone or other means of   telecommunication 
    shall include

(a)        
    a statement of the circumstances that make it impracticable for the peace 
    officer to appear personally before a justice.

[12]

The judge held:

[30] 
     The warrant is deficient because, on the amplified review, it is clear that 
    the officer did not have sufficient grounds to believe that it was impracticable 
    to appear personally before a justice of the peace, and the
Code
requirements 
    have not been met.

[31]      
    The warrant is quashed, and the search was therefore conducted in violation 
    of the rights of the accused pursuant to s. 8 of the
Charter
.

[13]

At paragraphs 32 to 41 the judge summarized information contained in 
    the appendix to the Information to Obtain.  She noted that it contained references 
    to five confidential sources of varying reliability who reported having 
    knowledge of a grow-op on the Farewell property over a period of one year.  
    The judge commented that Constable McAuley admitted there was no urgency to 
    the search.

[14]

The judge observed that Constable McAuley struck her as inexperienced 
    and naïve in legal matters, but straightforward and anxious to learn and improve. 
    She noted that Constable McAuley inserted a paragraph in the Information to 
    Obtain that any information she received from others she believed to be true.  
    However, the judge added it appeared Constable McAuley did not understand 
    the difference between direct knowledge and information which she gained from 
    others.  The judge added:

[36]      
     In my view, not much turns on her inability to describe the difference between 
    the two under cross-examination.  In the body of the Appendix she did state 
    for each paragraph the source of her information and in separate paragraphs 
    she described her own activities.  In practical terms, she differentiated 
    clearly between her own knowledge and activities, and information gained from 
    others.

Humphries 
    J. noted that Constable McAuley admitted several of her paragraphs gave a 
    misleading impression  some inadvertent and a matter of unclear drafting, 
    but others consciously selective.  The judge concluded that any misleading 
    impression was not made intentionally.  On a matter dealing with an associate 
    of the Farewells, Constable McAuley admitted she did not include information 
    that the person did not have a criminal record.  She testified she did 
    not intend to present a selective picture, but could see how the JJP might 
    be misled.  Humphries J. noted that Constable McAuley would do it differently 
    now and include all the information she obtained.

[15]

Madam Justice Humphries observed at paragraph 41 of her reasons that 
    the appellant did not argue that the warrant would not have been issued had 
    the offending sections been expunged.

[16]

There is no appeal of the finding that the search was in breach of 
    the appellants constitutional rights and that the warrant was quashed.  However, 
    the findings of fact on that issue are relevant to the issue under appeal, 
    namely the admissibility of the evidence found as a result of the warrantless 
    search pursuant to s. 24(2) of the
Charter
.

2.         Standard of review

[17]

I am of the opinion that the standard of review to be applied is that 
    of reasonableness.  In paragraph 43 of
R. v. Buhay
, 2003 SCC 
    30, [2003] 1 S.C.R. 631, Madam Justice Arbour, writing for the Court, noted 
    that at page 283 of
R. v. Collins
, [1987] 1 S.C.R. 265, Mr. 
    Justice Lamer:

reminded trial judges that their discretion [on whether admission of evidence 
    would bring the administration of justice into disrepute] is grounded in community 
    values and that it would not be interfered with on appeal unless it is exercised 
    in an unreasonable manner.

At 
    paragraph 44 of
Buhay
Arbour J. added:

It 
    was recently recalled by this Court in
Law, supra
, at para 32:

While the 
    decision to exclude must be a reasonable one, a reviewing court will not interfere 
    with a trial judges conclusion on s. 24(2) absent an apparent error as to 
    the applicable principles or rules of law or an unreasonable finding  
    .

[18]

At paragraph 48 Arbour J. found the trial judges conclusions were 
    neither unreasonable nor based upon an error or a misapprehension of the 
    applicable law and thereby found no basis to overrule his findings.  Toward 
    the end of her reasons she added as follows:

[72]      
     An appellate court must determine if, all factors considered, the trial 
    judges conclusion to exclude the evidence, based on her or his finding that 
    its admission would bring the administration of justice into disrepute, was 
    reasonable.

[19]

In the case at bar there is no challenge to the judges findings as 
    to the legal principles applicable to this issue.  It is the application of 
    the principles to those facts that grounds this appeal.  As such, the question 
    to be answered by this Court is whether her decision to admit the evidence 
    is within the limits of reasonableness.

3.         Section 24(2): Background

[20]

Section 24(2) is engaged when section 8 of the
Charter
is violated.  In such circumstances courts must undertake an analysis to determine 
    if the evidence produced in the unconstitutional search or seizure should 
    nevertheless be admitted.  Section 24 reads as follows:

24 
    (1)   Anyone whose rights or freedoms, as guaranteed by this Charter, have 
    been infringed or denied may apply to a court of competent jurisdiction to 
    obtain such remedy as the court considers appropriate and just in the circumstances.

(2)        
    Where, in proceedings under subsection (1), a court concludes that evidence 
    was obtained in a manner that infringed or denied any rights or freedoms guaranteed 
    by this Charter, the evidence shall be excluded if it is established that, 
    having regard to all the circumstances, the admission of it in the proceedings 
    would bring the administration of justice into disrepute.

[21]

In the case at bar the judge reached the following conclusion with 
    respect to section 24(2):

[59]      
     In the circumstances of this case, I am of the view that the administration 
    of justice would not be brought into disrepute by the admission of this evidence 
    pursuant to s. 24(2) of the
Charter
.

[22]

As stated above, the appellant alleges that the judge erred in admitting 
    the evidence from a warrantless search and in so doing failed to properly 
    apply established legal principles and made unreasonable findings which were 
    not supported by the evidence.  I will first analyze the judges application 
    of the legal principles associated with s. 24(2) before turning to the claim 
    that the judge made unreasonable findings that were not supported by the evidence.

4.         Section 24(2): Legal Principles

[23]

A section 24(2) analysis requires an examination of three factors outlined 
    in
Collins
.  Those factors are most clearly articulated in
R. 
    v. Law
, 2002 SCC 10, [2002] 1 S.C.R. 227 at paragraph 33:

[33]      
    In
Collins, supra
, this Court grouped the circumstances to be considered 
    under s. 24(2) into three categories: (1) the effect of admitting the evidence 
    on the fairness of the subsequent trial, (2) the seriousness of the polices 
    conduct, and (3) the effects of excluding the evidence on the administration 
    of justice.

Humphries 
    J. analyzed this issue under those three categories.  I will do likewise.

(i)         The effect of admitting the evidence on the fairness of the 
    trial

[24]

The principal considerations in this part of the
Collins

test are the nature of the evidence obtained and the nature of the right 
    that has been violated:
Law
, at paragraph 34.  The concept of 
    trial fairness is ultimately focused on avoiding the continued and unconstitutional 
    self-incrimination of the accused.  In practice, therefore, this stage is 
    primarily concerned with whether the evidence is conscriptive i.e. self-incriminating.  
    Conscriptive evidence is often found to affect the fairness of the trial and 
    is generally excluded.  Humphries J. said this:

[43]      
    Under the analysis of the effect on trial fairness, the first consideration 
    is whether the evidence is conscriptive or non-conscriptive.  In this 
    case, we are dealing with non-conscriptive evidence.  Generally trial 
    fairness is not compromised by the admission of non-conscriptive evidence.

[25]

Her conclusion is fully supported in
R. v. Stillman
, 
    [1997] 1 S.C.R. 607, where the Court said:

[75]      
    If the accused was not compelled to participate in the creation or discovery 
    of the evidence (i.e., the evidence existed independently of the
Charter
breach in a form useable by the state), the evidence will be classified as 
    non‑conscriptive.  The admission of evidence which falls into this 
    category will, as stated in
Collins
,
supra
, rarely operate to 
    render the trial unfair.  If the evidence has been classified as non- 
    conscriptive the court should move on to consider the second and third of 
    the
Collins
factors, namely, the seriousness of the
Charter

violation and the effect of exclusion on the repute of the administration 
    of justice.

[26]

Following the direction in
Stillman
, Humphries J. immediately 
    turned to the second of the
Collins
factors:

(ii)        The seriousness of the police conduct

[27]

Madam Justice Humphries dealt with this factor at significant length:

[44]      
    The most significant analysis, then, is the seriousness of the violation.  
    Within this inquiry such factors are relevant as whether the actions underlying 
    the
Charter
breach were done in good faith, inadvertently, or 
    through an error in judgment as opposed to deliberately, wilfully, flagrantly 
    or in bad faith; was the breach isolated or part of a larger pattern of disregard 
    for
Charter
or other statutory rights; were other investigatory techniques 
    available; was the
Charter
infringement a significant departure from 
    the
Charter
standard, and is any justification asserted for it; did 
    the police rely on earlier judicial precedent; was there urgency or danger 
    involved.

[45]      
    The accused say it is significant that the method employed to get a telewarrant 
    in this case is the method always employed by the Trail detachment  their 
    policy

is never to check about the availability of judicial justices 
    of the peace, but instead to use the Justice Centre.  This shows that 
    Cst. McAuleys actions were part of a larger pattern of disregard for both
Charter
and statutory rights.  The policy of the Trail detachment 
    was not only not authorized by statute or case law, but was in direct contravention 
    of the directive sent out by the Chief Judge.  There was no urgency or 
    danger which might mitigate the approach taken by the police.  They say 
    the evidence should be excluded.

[46]      
    The Crown says the evidence should be admitted.  It is non-conscriptive.  
    The premises, an outbuilding rather than a residence, were searched only after 
    a warrant had been obtained in the usual course.  The Crown also says 
    if there are deficiencies it is because of Cst. McAuleys inexperience, 
    and she has now changed her method of applying for warrants.  There is 
    no larger pattern of abuse of
Charter
rights in the circumstances of 
    this case, this is a technical breach and there is no bad faith on the part 
    of the police.

[47]      
    The Court of Appeal discussed the meaning of good faith and bad faith in [
R. 
    v.
]
Smith

[2005 BCCA 334,199 C.C.C. (3d) 404]
.
Actions done in good faith arise from an honest belief reasonably held.  
    An honest belief, if not reasonably held, will not lead to a finding of good 
    faith, but in order to find bad faith, actions must be knowingly or intentionally 
    wrong.  The absence of good faith may be neutral or enhancing, depending 
    on all the circumstances.

[48]      
    In the circumstances here, it is difficult to apply a good faith/bad faith 
    analysis.  The officers decision to write the words she did was a reflection 
    of her unquestioning and uninformed acceptance of what she understood to be 
    detachment policy.  In that sense it was deliberate.  However, she 
    did not write the words with the intention of misleading the JJP.  Her 
    reliance on the detachment policy was not a wilful or flagrant disregard of
Charter
rights, given that, despite having failed to check with the 
    Registry, she understood a JJP came through Rossland very infrequently - only 
    once every two months for a day to handle traffic court.

[49]      
    In all the circumstances, I am unable to find that the officer acted in bad 
    faith; however, given the officers failure to sufficiently inform herself 
    with respect to the statutory prerequisite under s. 487.1, there is an absence 
    of good faith.  Within the
Smith
analysis, this is a neutral factor.

[50]      
    Defence argues that the detachment policy to go straight to the Justice Centre 
    without making inquires is part of a larger pattern of disregard of
Charter
rights and therefore supports the exclusion of the evidence obtained from 
    the search.  The Crown takes a narrower view of the words, applying them 
    only to the circumstances of this case and arguing that there are no other
Charter
violations apparent on the evidence.  Both approaches 
    are relevant.

[51]      
    According to Cst. Oelke, the JJP came for half a day only and then went on 
    to Castlegar for the afternoon, and he had learned later that the JJP had 
    come through Rossland in February, although he thought it was the week after 
    this, that is February 16th.  Even allowing for the lack of certainty 
    in his evidence, I note that the Information to Obtain in this case was completed 
    at 4:00 p.m.  The directive from the Chief Judge, which seems to be directed 
    at locales where JJPs are more than a fleeting presence, was to the effect 
    that officers must check for the availability of a traffic JJP, but the JJPs 
    were not to do warrants on their breaks or after court hours, and not until 
    all other court duties were completed.  How this can be applied to a 
    situation where a JJP comes through a Registry for half a day every two months 
    is not clear.  The detachment policy must be considered within that context 
    and, while wrong, is not an egregious indication of a deliberate decision 
    to disregard
Charter
rights.

[52]      
    As for other violations in the execution of this particular search, defence 
    cross-examined Cst. McAuley extensively on the timing of the search, given 
    that the search warrant was requested for a search by day but in fact took 
    place at 6:00 p.m. when it was dark, and on her decision to knock at the door 
    of the residence before going to the outbuilding.  The search did take 
    place during the day, according to the definition in the
Criminal Code
and the hours specified on the face of the warrant, and the decision to go 
    to the residence as well is safer than having the residents become aware of 
    unknown people walking about in their yard without notice.  I accept 
    Cst. McAuleys uncontradicted evidence that she did not enter the residence 
    itself.  There are no other violations apparent on the evidence.

[53]      
    There was no suggestion that other investigative measures might be an adequate 
    replacement for a search of the premises.

[28]

The appellant submits the judge erred in her analysis in paragraphs 
    44 through 48 and in her conclusion in paragraph 49 that she was unable to 
    find Constable McAuley had acted in bad faith.  He asserts the judge failed 
    to consider the practice of the Trail Detachment and instead focused entirely 
    on the conduct of the naïve and inexperienced police officer.  He submits 
    this is a particularly egregious case because an entire police detachment 
    was following an illegal policy that was contrary to the specific provisions 
    contained in the
Criminal Code
.

[29]

The appellants argument on this issue does not stand up to scrutiny.  
    At paragraph 51 of her reasons Humphries J. said, [t]he detachment policy 
     while wrong, is not an egregious indication of a deliberate decision to 
    disregard
Charter
rights.  Such a finding contradicts the appellants 
    contention that the judge focused entirely on the conduct of the  police 
    officer.

[30]

The judges finding that the 
    policy was not a deliberate decision to disregard
Charter
rights 
    is also significant to the suggestion that the policy was adopted in bad faith.
The appellant relies upon
R. v. 
    Schedel
, 2003 BCCA 364, 175 C.C.C. (3d) 193, in which the Vancouver 
    Police Department had adopted a policy of entering premises by force without 
    any notice.  Mr. Justice Esson described it this way at paragraph 5:

[] 
    They entered through the front door without any previous warning or knock 
    other than the impact of their battering ram, which was used to smash open 
    the front door.

At 
    paragraph 16 Esson J.A. found the manner of entry was the most serious issue.   
    At paragraph 25 he said:

[] 
    The circumstance that the Vancouver Police Department deliberately adopted 
    a policy of ignoring the most fundamental rule protecting citizens from an 
    unreasonable invasion of their dwelling put this violation in my view at the 
    most serious end of the spectrum.

The 
    Court thereby excluded the evidence uncovered by the search.  However, that 
    case was based upon circumstances far removed from those in the case at bar.  
    Contrary to the actions of the Vancouver Police Department in
Schedel
, 
    the judge in this case found Constable McAuleys actions did not demonstrate 
    a willful or flagrant disregard of
Charter
rights.  This finding 
    was reasonable on the basis of the evidence before the judge, i.e. the rare 
    availability of a JJP and the absence of an intention to mislead.  I do not 
    find
Schedel
to be of assistance to the appellant in the case 
    at bar.

[31]

In
R. v. Therens
, 
    [1985] 1 S.C.R. 613, Mr. Justice Le Dain wrote at paragraph 76 that in the 
    context of section 8 breaches the two principal considerations in determining 
    whether the admission of evidence would bring the administration of justice 
    into disrepute are:

[76]      
     [T]he relative seriousness of the constitutional violation and the relative 
    seriousness of the criminal charge.  The relative seriousness of the constitutional 
    violation has been assessed in the light of whether it was committed in good 
    faith, or was inadvertent or of a merely technical nature, or whether it was 
    deliberate, wilful or flagrant.

[32]

In the case at bar there is no finding that the detachment, as a
policy
, 
    was required to obtain warrants by telecommunication.  Indeed, Constable McAuley 
    testified that she had never seen such a direction in writing.  It appears 
    from the record that the word policy was simply adopted to reflect what 
    was commonly done by the detachment.   If this had been analyzed in the trial 
    I expect the judge would have used the word practice to describe what the 
    detachment did, out of necessity, to obtain warrants.

[33]

However, in that the word policy was adopted at trial I will, in 
    order to be consistent, use it in these reasons.  Nevertheless, a finding 
    that the policy was wrong is far from a finding that the policy was deliberately, 
    flagrantly or wilfully adopted to avoid compliance with the
Charter
.

This is in keeping with the conclusion in
R. v. Caslake
, 
    [1998] 1 S.C.R. 51 at paragraph 34 where Chief Justice Lamer said he was influenced 
    in holding that the evidence would be admitted by the fact that 
the 
    search was conducted in good-faith reliance on an RCMP policy that requires 
    the interior of impounded cars be inventoried.

[34]

In
R. v. Smith
, 2005 BCCA 334, 199 C.C.C. (3d) 404, this 
    Court quoted a passage from the reasons of Mr. Justice Sopinka in
R. 
    v. Kokesch
, [1990] 3 S.C.R. 3 and then said:

[60]      
    Thus, Sopinka J. does not equate a lack of good faith with bad faith.  
    It follows from this passage that in order to qualify as "bad faith" 
    the actions of the police must be knowingly or intentionally wrong.

[61]      
    To sum up, good faith connotes an honest and reasonably held belief.  If the 
    belief is honest, but not reasonably held, it cannot be said to constitute 
    good faith.  But it does not follow that it is therefore bad faith.  To constitute 
    bad faith the actions must be knowingly or intentionally wrong.

[35]

In the case at bar Madam Justice Humphries applied the reasoning in
Smith
and found that she was unable to find bad faith.  There 
    was an absence of good faith which she found to be a neutral factor pursuant 
    to the reasoning outlined above from
Smith
.  The appellant argues 
    that this is an error in law, a proposition with which I cannot agree.  The 
    finding of the judge was entirely in keeping with the concepts of good faith 
    versus bad faith as discussed in
Therens
,
Kokesch
and
Smith
.



[36]

At paragraph 53 the judge said [t]here was no suggestion that other 
    investigative measures might be an adequate replacement for a search of the 
    premises.  The appellant, in his factum, erroneously states that the judge 
    found other investigative techniques
were
available.  He then argues 
    that the judges finding that the police could have properly obtained the 
    search warrant supports the argument that another investigative technique 
    was available (i.e. one which complied with the statutory requirements).  
    The appellant appears to argue that the failure to comply with statutory requirements 
    should automatically exacerbate the seriousness of the
Charter
breach.  This argument conflates the manner in which a particular investigative 
    technique is employed with the availability of another technique altogether 
    and seeks a double benefit from the
Charter
breach.

[37]

The appellant argues that the breach is all the more serious and 
    all the more blatant because the police officers were clearly in breach of 
    statutory authority by proceeding by way of a telewarrant.  In support he 
    cites:

Buhay:

[52]      
     Also relevant is whether the police officer could have obtained the evidence 
    by other means, thus rendering her or his disregard for the
Charter
gratuitous 
    and blatant
: Collins,
supra
,
at p.285;
Law
, at para. 
    37.

Collins:

[38]      
     I should add that the availability of other investigatory techniques and 
    the fact that the evidence could have been obtained without the violation 
    of the
Charter

tend to render the
Charter

violation 
    more serious.  We are considering the actual conduct of the authorities and 
    the evidence must not be admitted on the basis that they could have proceeded 
    otherwise and obtained the evidence properly.  In fact, their failure to proceed 
    properly when that option was open to them tends to indicate a blatant disregard 
    for the
Charter
, which is a factor supporting the exclusion of the 
    evidence.

[38]

The above-noted passages are relevant to the issue of whether some 
    technique other than a search of the premises was available.  A wiretap or 
    a stakeout would constitute other investigative techniques.  A premises 
    search which complies with statutory authority does not constitute another 
    investigative technique.   It is the same investigative technique undertaken 
    in a different manner.  The uncontradicted finding that no investigative measure 
    other than a search of the premises was available mitigates in favour of the 
    introduction of the evidence.

[39]

The appellant also submits that the judges finding at paragraph 56 
    that the police could have proceeded properly and obtained a search warrant 
    enhances the seriousness of the breach because it encouraged police constables 
    to breach constitutional requirements.  In the circumstances of this case 
    the fact that the police could have proceeded properly and obtained the warrant 
    does not, in my opinion, add to the seriousness of the breach.  Rather, it 
    diminishes the seriousness of the breach.

[40]

Whether reasonable and probable grounds for the issuance of a search 
    warrant were present weighs heavily in the determination of the seriousness 
    of the breach.  In the case at bar the Information to Obtain sufficiently 
    identified reasonable and probable grounds for the issuance of a warrant.  
    Counsel for the appellant concedes this to be the case.

[41]

Cory J., speaking for the majority in
R. v. Belnavis
, 
    [1997] 3 S.C.R. 341 said:

[27]      
     [I]n proceeding to the analysis under s. 24(2)  [t]here is both an 
    objective and a subjective component to reasonable and probable grounds, and 
    I believe they were both established.  The reasonable and probable grounds 
    for the search must then inform the assessment of the seriousness of the
Charter
breach, when determining whether to admit the evidence under s. 24(2).

In
Belnavis
,
Caslake
and
R. v. Grant
, 
    [1993] 3 S.C.R. 223 it was held there were reasonable and probable grounds 
    for conducting the searches.  In each case the Court held the police had acted 
    in good faith and admitted the evidence.

[42]

Factors supporting exclusion include the obtrusiveness of the search 
    and the fact people have a reasonable expectation of privacy in their homes.  
    Privacy interests in ones home deserve stringent constitutional protection:
R. v. Tessling
, 2004 SCC 67, [2004] 3 S.C.R. 432 at paragraph 
    22.  However, in the case at bar the search was not especially obtrusive in 
    that it was focused on an outbuilding.  This  was necessary considering the 
    nature of the crime and the decision of the appellant to use his home as the 
    site of his wrongdoing.

[43]

Balancing all of the above-noted factors it is my opinion that the 
    judges decision that the
Charter

breach was not serious enough 
    to warrant exclusion of the evidence was not unreasonable.

(iii)       The effect on the administration of justice of excluding the 
    evidence

[44]

Madam Justice Humphries also dealt specifically with the third of the
Collins
factors.  The two most important considerations in this 
    factor are whether the impugned evidence forms a crucial part of the Crowns 
    case and, where trial fairness is not affected, the seriousness of the offence.  
    In
Law
Mr. Justice Bastarache summarized the inquiry under this 
    stage of the
Collins
test as follows at paragraph 39:

[39]           
     In general, this turns on whether the unconstitutionally-obtained evidence 
    forms a crucial part of the Crowns case and, where trial fairness is not 
    affected, the seriousness of the underlying charge.

[45]

Madam Justice Humphries dealt specifically with this aspect of the
Collins
test from paragraphs 54-59 of her reasons:

[54]      
    I will now consider whether the departure from the
Charter
standard 
    was significant.  Considering all of the evidence, I am of the view that, 
    had a call been made to the Rossland, Castlegar or Nelson registries, the 
    result would very likely have been the same  the officer would not have been 
    able to appear in person before a JJP and would have had to obtain a telewarrant.

[55]      
    This does not excuse the failure to make the phone call to check, but in these 
    circumstances, the departure from the standard is not so significant nor so 
    unjustified that, considered with all the other factors set out above, it 
    would bring the administration of justice into disrepute if the evidence obtained 
    through the search were admitted.

[56]      
    In addition, the information provided to the police officer came from five 
    members of the community.  It would be difficult to explain to the community 
    that the results of the search have been excluded because of the failure by 
    the police officer to make a phone call in circumstances where it would almost 
    inevitably have made no difference - either because a telewarrant was in fact 
    the only option, or because an in-person appearance, if available, would have 
    resulted in the warrant being issued anyway.  I note that the information 
    to obtain, even edited to delete the reference to Mr. Horvath and to Mr. Farewells 
    criminal record, would still support the issuance of a warrant.

[57]      
    While the courts strive to protect and ensure the right to privacy enshrined 
    in the
Charter
, the expectation of privacy differs depending on the 
    nature of the search.  Here, the warrant provided for the search of an 
    outbuilding, and the expectation of privacy, though still high, is somewhat 
    less than that relating to a residence.

[58]      
    Cst. McAuley testified that she no longer fills out Informations to Obtain 
    telewarrants without first phoning and checking on the availability of a JJP, 
    and documenting the results of her call.  Notwithstanding the likely futility 
    of such calls, adequate steps must be taken to ensure that there is sufficient 
    adherence to the statutory requirements of s. 487.1.  If officers of the Trail 
    detachment continue to state their belief that it is impracticable to appear 
    in person without sufficient grounds for doing so, they risk the results of 
    the next search being excluded.

[59] 
         This is not to say that the existing situation is a good one.  It appears 
    for all practical purposes that telewarrants are the only method by which 
    search warrants can now be obtained outside of Vancouver and possibly Victoria.  
    It is arguable that Parliament did not envision that the word impracticable 
    in s. 487.1 would be used to justify decisions made at the provincial level 
    by which police officers are given no practical opportunities for face-to-face 
    access to judicial officers with the power to issue warrants.  However, this 
    is not a challenge to s.487.1 generally or to the designations made by the 
    Chief Judge under s.487.1(1).  This is a challenge to this particular search 
    warrant.  In the circumstances of this case, I am of the view that the administration 
    of justice would not be brought into disrepute by the admission of this evidence 
    pursuant to s. 24(2) of the
Charter
.

[46]

In the case at bar the evidence forms the entirety of the Crowns case.  
    In
Kokesch
at paragraph 39 Chief Justice Dickson wrote that 
    marijuana cultivation is a serious social evil and exclusion of evidence 
    in such cases can do violence to the administration of justice.  The violence, 
    theft, fire risks and organized crime connections that are associated with 
    marijuana grow-operations can properly be taken to brand them as serious crimes.

[47]

In addition to those aspects of the third
Collins
factor, 
    the effect of exclusion on the particular community in which the criminal 
    activity took place must be considered.  The effect of exclusion on the administration 
    of justice is calculated on a local standard, not a national one.  The impact 
    of exclusion on the local community is of paramount importance to the section 
    24(2) analysis.  I would reference in particular paragraph 56 of the reasons 
    of Humphries J. and what was said by Arbour J. in
Buhay
:

[70]

Lamer J. stressed at p. 281 in
Collins

that s. 24(2) is not a remedy for police misconduct.   Iacobucci J. also 
    recalled in
R. v. Burlingham
, [1995] 2 S.C.R. 206 
    at para. 25, that the purpose of the
Collins
test 
    is "to oblige law enforcement authorities to respect the exigencies of 
    the
Charter
...". The expressed concern of the trial judge 
    that admitting the evidence in these circumstances may encourage similar police 
    conduct in the future is in line with this purpose of the
Collins

test.  
    More importantly, provincial court judges handle these kinds of issues on 
    a daily basis. They have a much better understanding than we do about the 
    likely effects of their decisions on their communities and on those who enforce 
    the law in those communities. A concern such as the one expressed by Aquila 
    Prov. Ct. J. should not, in my view, be dismissed lightly. The administration 
    of justice does not have to be brought into disrepute on a national scale 
    before courts may interfere to protect the integrity of the process within
which they operate.

This suggests
what 
    might bring the administration of justice into disrepute in one community 
    would not necessarily bring the administration of justice into disrepute in 
    another.

[48]

As a trial judge who sits in communities large and small throughout 
    the province, Humphries J. must be taken to have a much better understanding 
    than we [appeal courts] do about the likely effects of her decision on the 
    community members and the local police.  Her decision on this branch of the 
    test is based on her assessment of the potential reaction of the people residing 
    within the jurisdiction of the Trail detachment which includes Fruitvale where 
    the offence was committed.  That assessment, informed by the fact that the 
    crime was reported to the police by five members of that community, supports 
    her conclusion in paragraph 56 that it would be difficult to justify to the 
    community the exclusion of the impugned evidence.  She concluded, in effect, 
    that the exclusion of the evidence
in these circumstances
would bring 
    the administration of justice into greater disrepute than would the admission 
    of the evidence.  The following comment of Doherty J.A. for the Court in
R. 
    v. Golub
(1997), 117 C.C.C. (3d) 193; 9 C.R. (5
th
) 98 (Ont. 
    C.A.), leave to appeal refused, although made in respect of different circumstances, 
    is apt to describe the view she reached:

[62]      
    []  Even if the police judgment was constitutionally flawed, it was honestly 
    made and was entirely understandable in the circumstances.  I think the repute 
    of the administration of justice would suffer significant harm if important 
    evidence was excluded because of the police error in judgment.

It 
    cannot be said in the circumstances of this case that the judges decision 
    was unreasonable.

[49]

Paragraphs 58 and 59 of Madam Justice Humphries reasons reflected 
    upon the conduct of the police in the Trail detachment.  This should be considered 
    in relation to the message contained in paragraph 70 of
Buhay
.  
    I am satisfied that while the policy has been found to be wrong, it will 
    not be followed again in the Trail detachment.

5.         Unreasonable 
    findings by the judge which were not supported by the evidence

[50]

The appellant submits that the judge had no evidentiary foundation 
    for finding in paragraph 54 that if Constable McAuley had phoned various registries 
    the result would very likely have been the same in that no JJP would have 
    been available.  The foundation for this is in the evidence that telewarrants 
    were to be obtained because of the unavailability of a JJP and was a valid 
    inference to draw from the evidence of Constable Oelke.  The judge did not 
    rule out the possibility of one being available, but found that it was not 
    likely.

[51]

The appellant further asserts that the judge had no evidentiary basis 
    for finding in paragraph 56 that a telephone call to various registries would 
    almost inevitably have made no difference as the warrant would have been 
    issued regardless.  As noted earlier in these reasons, the appellant now concedes 
    that there were reasonable and probable grounds for the search and that a 
    warrant would have been issued regardless.

6.         Conclusion with respect to s. 24(2)

[52]

In paragraph 44 of
Buhay
it is said that deciding whether 
    the preconditions to the exclusion of evidence have been met requires an 
    evaluation of the evidence and the exercise of a substantial amount of judgment 
    which mandates deference by appellate courts.  Madam Justice Arbour cited 
    many authorities in support of this proposition and, relying upon what was 
    said by Iacobucci J. in
Belnavis
at paragraph 76, spoke of the 
    deference to which a trial judge is entitled on s. 24(2) issues.  She continued:

[47]      
    The findings of the trial judge which are based on an appreciation of the 
    testimony of witnesses will therefore be shown considerable deference.  In 
    s. 24(2) findings, this will be especially true with respect to the assessment 
    of the seriousness of the breach, which depends on factors generally established 
    through testimony, such as good faith and the existence of a situation of 
    necessity or urgency (
Law
,
supra
, at paras. 38-41).

[53]

Humphries J., in my opinion, did not err in her exercise of judicial 
    discretion.  Furthermore, she did not misapprehend any evidence, did not fail 
    to consider any relevant factors and did not reach an unreasonable conclusion 
    in the circumstances prevailing in this case.

[54]

I would not accede to this ground of appeal.

Appeal on the s. 11(b) Application

[55]

The
Charter
reads:

11.       
    Any person charged with an offence has the right

(b)        
    to be tried within a reasonable time

[56]

The appellant alleges a total delay of 32 months between his arrest 
    and the date on which his application for a stay of proceedings pursuant to 
    s. 11(b) was heard.  He attributes the delay to a myriad of factors, including 
    institutional delays, scheduling problems and the added complication of the
voir dire
on the section 8 issue.  He argues that prejudice can be 
    presumed from this delay and states he suffered emotional and financial prejudice 
    as a result of the delay.  He further argues that he expressly and repeatedly 
    refused to waive any delays.

1.         Brief chronology of events

[57]

The offence was alleged to have occurred on 11 February 2004.  The 
    information was sworn on 23 April 2004.  The first court appearance was on 
    10 May 2004.  On 19 August 2004 the appellant elected trial by judge alone.  
    On 9 December 2004 a fix date hearing was held at which the date of 30 May 
    2005 was set for the preliminary hearing.   The preliminary hearing was held 
    on the scheduled date.

[58]

In August 2005 the appellant filed a notice pursuant to the
Constitutional 
    Question Act
,
R.S.B.C. 1996, c. 68,

of his application 
    for a stay of proceedings on the basis that his s. 11(b)
Charter
right had been infringed.  A
voir dire
on the s. 8 issue was heard 
    on 7 and 8 February 2006.  Reasons for judgment on the
voir dire
were 
    issued on 7 March 2006.

[59]

The trial continued on 27 October, but only on the s. 11(b) issue.  
    Madam Justice Humphries issued her reasons on the s. 11(b) application on 
    8 November 2006.  The trial resumed again on 8 January 2007, on which date 
    the judge gave oral reasons finding both accused guilty as charged.  The sentence 
    hearing followed immediately and the judge gave oral reasons for sentence 
    on 10 January 2007.

2.         Reasons for judgment


[60]

Humphries J. defined the first phase of the case as Pre-charge matters, 
    disclosure, and Crown conflict.  She noted at paragraph 12 the exchange of 
    correspondence between Mr. Brown (Crown counsel) and Mr. Rosenberg (counsel 
    for the appellant) regarding disclosure.  She further recorded that Mr. Brown 
    had on 31 March 2004 informed Mr. Rosenberg that he had dealt with a mortgage 
    for the appellant at some previous time and asked Mr. Rosenberg if his client 
    objected to him conducting the prosecution.  On 16 June 2004 Mr. Rosenberg 
    said his client was asserting his section 11(b) rights.

[61]

On 3 August 2004 the appellant elected trial by judge alone and Mr. 
    Rosenberg advised Mr. Brown he had no objection to him conducting the prosecution. 
     However, Ms. Farewell had recently changed counsel and on 19 August 2004 
    her new counsel advised Mr. Brown that her client objected to him acting.  
    New Crown counsel was appointed in mid-September 2004.

[62]

The judge headed the next phase Setting a preliminary hearing date.  
    In paragraphs 16 to 21 she recorded that on 21 September 2004 Mr. Rosenberg 
    renewed an earlier disclosure request.  On 28 September 2004 Crown counsel 
    replied and, among other things, asked questions regarding matters related 
    to the preliminary hearing.  Mr. Rosenberg replied on 4 October 2004, reasserting 
    the s. 11(b) issue.  Various dates from October 2004 through March 2005 were 
    discussed for the preliminary hearing. There was a hearing on 18 November 
    2004 at which dates were discussed.  The date of 30 May 2005 was eventually 
    agreed upon for the preliminary hearing.

[63]

The next phase, commencing at paragraph 23, is entitled Setting a 
    trial date in the reasons for judgment.  At paragraph 24 Humphries J. replicated 
    a portion of a letter dated 2 June 2005 wherein Mr. Rosenberg advised the 
    Crown he would like to discuss trial dates, but suggested the s. 8 matter 
    be heard at the outset.  The judge also noted that Mr. Rosenberg said in 
    the same letter that he would be making an application for a stay of proceedings 
    on the basis of delay.  She then commented that before counsel even discussed 
    a trial date, the accused were planning to bring two
Charter
applications.

[64]

The judge recorded in paragraph 25 that counsel for Ms. Farewell objected 
    to the local judge hearing the case.  A judge from elsewhere therefore had 
    to be assigned to the case.   Dates in November 2005 were discussed by counsel 
    and the court registrar, but both counsel had scheduling difficulties.  On 
    21 November 2005 Madam Justice Humphries, in Rossland, scheduled the s. 8
voir dire
for 7 February 2006 in Nelson.

[65]

Under the heading, The section 8
voir dire
 at paragraph 32, 
    the judge set out the discussion that took place at the opening of the
voir 
    dire.
She said it was her understanding that the hearing would encompass 
    the full trial.  Mr. Rosenberg said it was counsels understanding that only 
    the
voir dire
portion of the trial would go ahead.  Paragraphs 34 and 
    35 of Madam Justice Humphries reasons suggest that if counsel had been available 
    she would have continued with the trial immediately after completion of the 
    s. 8
voir dire
on 8 February 2006.  They were not available therefore 
    she reserved her judgment and released it on 3 March 2006.

[66]

On 3 April 2006 counsel attended a hearing before the local judge to 
    set a trial date.  The trial was estimated to require a further two days.  
    Defence counsel requested a date after 24 July 2006.  Counsel agreed to dates 
    in August, but were advised by the registry that the judge was not available 
    in August.  It was therefore agreed that 26 and 27 October 2006 would be the 
    trial dates.  Madam Justice Humphries records at paragraph 38 of her reasons 
    that upon hearing this she advised counsel she was available in April, May 
    and July 2006.   However, counsel for the appellant was not available for 
    any of the suggested dates and the October dates remained in place.

[67]

On 4 October 2006 a pre-trial conference was held by telephone.   A 
    transcript of the conversation appears at paragraph 45 of the judges reasons.  
    It shows confusion and lack of communication between counsel for Mr. and Ms. 
    Farewell.  After a lengthy exchange between counsel and the judge it was agreed 
    that the section 11(b) application would be heard on 27 October 2006 and the 
    trial would then be adjourned to await judgment.  The application was heard 
    as scheduled and reasons for judgment were delivered on 8 November 2006.

[68]

The reasons for judgment on the s. 11(b) application continue as follows:

[49]      
    It took several months before counsel were ready to schedule a date for the 
    preliminary hearing.  During that time, Ms. Farewell, who had been represented 
    by Mr. Rosenberg as well, obtained her own counsel.  That new counsel, Ms. 
    Underwood, objected to Mr. Brown remaining as Crown, though Mr. Rosenberg 
    did not take issue with this, having been asked about it five months before.  
    It is true disclosure was ongoing, but the Crown is correct in saying that 
    a date could not be fixed until the issue of who would be acting for the Crown 
    was resolved.  Mr. Brown [Crown counsel] raised this at the first opportunity, 
    in March even before the charges were laid, and it took five months to get 
    a response.  It was not until Crown pushed for an answer on August 19, 2004 
    that they got one from Ms. Underwood, who had only been retained a month before.  
    In my view, these elements all combine to make this period of time neutral 
    in the sense of assessing blame for it.

[69]

At paragraph 55 Humphries J. noted that one reason why the matter was 
    still before the courts and had not concluded was the
Charter

challenges 
    of the accused.  She said that while such challenges were permissible, they 
    bifurcated the proceedings and could not be used as a basis to assert undue 
    delay.  At paragraph 56 she expanded upon this, pointing out that defence 
    counsel objected to the local Supreme Court judge hearing the case.  A Vancouver 
    based judge therefore had to be assigned, about which the judge said:

[56]      
     It takes nothing more than basic common sense to see that scheduling a visiting 
    judge for two or three hearings instead of one, with three counsels calendars 
    to consider, will have a detrimental effect on a speedy conclusion to the 
    proceedings.

[57]      
    I note that it was counsel for the accused who first suggested that the
voir 
    dire
in which they wished to challenge the validity of the search warrant 
    be scheduled separately from the trial .

[70]

The judge then considered the circumstances surrounding scheduling 
    of the search warrant
voir dire
.  She said at paragraph 68 that the 
    entire matter including the
voir dire
and the delay argument should 
    have been set as a five day trial, to be heard all at once.  She continued:

[69]      
    This piecemeal approach while the accused have asserted their rights under 
    the
Charter
has meant additional delay as well as inconvenience for 
    the court as it now has to cope with and accommodate a trial out of town that 
    has been strung over many months.  It is somewhat puzzling that the accused 
    now seeks to place the blame for delay in completing the trial within a reasonable 
    time on the Court, as well as the Crown.

[70]      
    That the accused seek to blame the court for the fact that the trial has not 
    yet concluded because this delay application was heard by video in Vancouver 
    is additionally perplexing

[71]      
    This, put together with Ms. Underwoods notations on her phone calls, supports 
    the inference that defence counsel have carefully watched this process until 
    enough delay accumulated that they could apply for a stay of proceedings apparently 
    based on Crown and court delay, while attempting to look blameless themselves 
    because of the repeated letters making reference to their reliance on their 
    s.11(b) rights.  Thus, regardless of the substance of discussions between 
    counsel, some involving the Court as well, in the defence view, the Crown 
    is effectively put back in the position they were in following
Askov
: 
    the burden always rests with the Crown to bring the case to trial.

[71]

Humphries J. held at paragraph 74 that the defence have treated delay, 
    not so much as a factor which will erode the case for the prosecution, as 
    the nature of the charges here might make that difficult to do, but as a positive 
    defence to which the accused are entitled in order to avoid a trial on the 
    merits.  She noted the defence submission that the Crown should have overridden 
    the defence position that the trial be split between the substance and the
voir dire
because the burden always rests with the Crown to bring 
    the case to trial.  She concluded:

[76]      
    I do not think this approach would find favour even under
Askov
, but 
    it is certainly no longer available to the defence after
Morin
.

[72]

The judge proceeded to consider prejudice.  She held at paragraph 85 
    that there was no documentation supporting a claim that the delay had caused 
    prejudice to the accused as no evidence had been led linking their financial 
    or employment problems with delay in completing the trial. She continued:

[85]      
     [T]he evidence of prejudice arising out of delay is amorphous and vague.  
    While judges tread carefully around the
Charter
, at some point common 
    sense has to rule.  If the accused were really anxious to have these 
    matters concluded as expeditiously as possible, they should have instructed 
    their counsel to cooperate with the Crown in scheduling adequate time to complete 
    the
Charter
arguments and, if necessary, the remainder of the trial, 
    all at once, and not to suggest that the initial
Charter

voir dire
be done separately.

Result

[86]      
    In my view, this trial would have been completed a year ago if adequate time 
    had been set aside to do the two
Charter
arguments, followed by additional 
    time for the trial, if required after the rulings.  This would of course require 
    obtaining sufficient time commitments from Crown and both defence counsel 
    for the longer period, the extra expense to the accused of having their out-of-town 
    counsel available for the entire period and on standby while rulings were 
    made, and the necessity of having the Crown witnesses, all from out of town, 
    ready and waiting to see what the outcomes would be.  There are obvious reasons 
    why this approach would not have been attractive to defence or Crown, but 
    if a speedy outcome is all that counts, that is how it should have been done.  
    It was as a result of a mutually agreed upon decision, initiated by defence, 
    that it was not.

[87]      
    Other factors which contributed to the elapse of time and which were not in 
    the control of the Crown or the system, were the separate representation of 
    the two accused, which brought an additional counsels calendar into the mix, 
    Ms. Farewells objection to the previous Crown continuing to act, and the 
    necessity for a visiting judge following Ms. Farewells objection to the local 
    judge hearing the case.

3.         Discussio
n

[73]

I appreciate that the appellant disputes certain findings of fact made 
    by the judge.  I will deal with those separately, but he does not dispute, 
    for example, the following findings of fact as set forth in Madam Justice 
    Humphries reasons for judgment on the s. 11(b) application:

●    
    Paragraphs 12 to 15: On 31 March 2004 Mr. Brown, who was Crown counsel, asked 
    Mr. Rosenberg, who was acting for both accused, if his clients objected to 
    him acting.  Mr. Rosenberg did not object, but on 19 August 2004 new counsel 
    for Ms. Farewell objected.  New Crown counsel was immediately appointed.

●    
    Paragraphs 17 to 22: On 21 October 2004 defence counsel agreed to 18 November 
    2004 to fix a date for a preliminary hearing.  On that date the matter was 
    put over to 9 December 2004.  A date of 1 February 2005 was offered by the 
    trial co-ordinator.  Mr. Rosenberg was not available until later that week 
    and counsel for Ms. Farewell was not available that week. The judge noted 
    in paragraph 21 that the trial co-ordinator was given the difficult job of 
    co-ordinating the dates of three busy counsel with the courts availability.  
    It was eventually agreed that the preliminary hearing would take place on 
    30 May 2005.

●    
    Paragraphs 23 to 31: In a letter dated 2 June 2005 Mr. Rosenberg suggested 
    that the s. 8
voir dire
should be heard at the outset and advised 
    that he would be bringing a s. 11(b) motion.  On 26 September 2005 Crown counsel 
    advised that he was available for the week of 21 November 2005. Mr. Rosenberg 
    was available only on the 24
th
and 25
th
.  Counsel for 
    Ms. Farewell was not available on the 25
th
.  The co-ordinator offered 
    5 December 2005.  It is not known if Mr. Rosenberg was available, but counsel 
    for Ms. Farewell was not and asked for a date in 2006.  The
voir dire
was 
    therefore scheduled for 7 February 2006.

●    
    At paragraph 25 the judge noted that prior to the fix date hearing of 18 November 
    2004 counsel for Ms. Farewell objected to the local Supreme Court judge hearing 
    the case.  The judge commented at paragraph 56 that common sense dictated 
    that requiring a visiting judge would have a detrimental effect on a speedy 
    conclusion to the proceedings.

●    
    Paragraphs 32 to 44: At the opening of the
voir dire
on 7 February 
    2006 the judge said she expected to hear the balance of the trial following 
    the one day
voir dire
.  Counsel were not available to conduct the balance 
    of the trial following the
voir dire
.  The judge expressed surprise 
    and asked When did you think the trial was going to go ahead?  Mr. Rosenberg 
    replied:

Well, in 
    our discussion, we anticipated, My Lady, that following the
voir dire
, 
    Your Ladyship might want to reserve.  And then, if you did, we would resume 
    at some other time for either a continuation of the trial or, depending on 
    the ruling on the
voir dire
, perhaps not.  That was our discussion.  
    But I dont believe any body anticipated it going this week.

Madam 
    Justice Humphries responded:

Im 
    not used to having the luxury of counsel anticipating the luxury of time for 
    me on a ruling, so I assumed I would be either working late into the night 
    or I would rule some time tomorrow.

Mr. 
    Rosenberg then stated: I dont believe anybody had anticipated being here 
    tomorrow.  The judge said: I assumed the trial was going this week.

Subsequently, 
    without the involvement of Humphries J., a date in October 2006 was agreed 
    upon by counsel for the continuation of the trial.  When the judge heard of 
    this she took exception to the late date and suggested spring dates.  Mr. 
    Rosenberg was not available for a 1 May 2006 date that was proposed.  A mutually 
    acceptable date could not be found therefore the October date remained in 
    place.

[74]

In spite of the above noted findings of fact, the appellants factum 
    submits as follows:

[52]      
    The appellant pressed for a speedy trial throughout the proceedings.  He never 
    waived his right to trial within a reasonable time nor did he acquiesce to 
    the delay.  He never consented to an adjournment. He asserted his right to 
    trial within a reasonable time on at least five different occasions and made 
    that assertion in writing and in the form of a
Constitutional Question 
    Act
Notice which was filed with the Court.

[75]

The appellant then suggests that the events be looked at dispassionately 
    and asserts at paragraph 53 the delay was caused by the police not being 
    available, or the Crown in gathering up materials and making disclosure; 
    the delay was caused by the conflict of Crown counsel or the request by the 
    co-accused for new Crown counsel and Crown counsel was unavailable because 
    of holiday time, other commitments, or court time was not available.  The 
    appellant argues insufficient court time was provided in 2006 to complete 
    the trial and the appellant was ready and anxious to proceed during this 
    time frame with the trial but due to unavailable court time the matter was 
    not concluded until January 8, 2007, and is accordingly institutional delay.

[76]

There is no mention of appellants counsels unavailability or the 
    Courts difficulties in scheduling the calendars of three busy counsel with 
    that of an out of town judge.  Further, he defines delays caused by the actions 
    of his co-accused or her counsel as institutional delays.  He says nothing 
    of his acquiescence to many of the adjournments, he simply repeats that he 
    played no part in the length of time this case took to get to trial.  This 
    is not the dispassionate consideration of the proceedings suggested by the 
    appellant.  It simply paints the appellant as a victim of a schedule imposed 
    upon him by the Crown and the Court.  That is not in keeping with the record 
    or the facts as found by Madam Justice Humphries.

[77]

The burden of proof on a section 11(b) application is on the accused 
    throughout:
R. v. Morin
, [1992] 1 S.C.R. 771 at paragraph 28.  
    In
R. v. Smith
, [1989] 2 S.C.R. 1120 at paragraphs 27-30 Mr. 
    Justice Sopinka outlined four factors which an accused must satisfy in his 
    favour in the determination of the distinction between reasonable and unreasonable 
    delay.  These factors are: the length of the delay; the reason for the delay, 
    including limits on institutional resources and the inherent time requirements 
    of the case; waiver of time periods; and prejudice to the accused.  The four 
    factors have been accepted as the proper analysis in a s. 11(b) claim:
Morin
at paragraph 18.

(i)         Length of delay

[78]

The first step in any s. 11(b) inquiry is to determine if the delay 
    is sufficient to raise the issue of whether the rights of the accused have 
    been prejudiced.  This case saw a delay of over thirty months from the charges 
    to the eventual determination of the issue on its merits.  This level of delay 
    is sufficient to raise the possibility that the rights of the accused may 
    have been prejudiced.

[79]

In
R. v. Askov
, [1990] 2 S.C.R. 1199, Cory J. stated 
    at paragraph 131 that six to eight months of
systemic delay
is the 
    outside limit of what is reasonable.  Sopinka J. retreated from this somewhat 
    in
Morin
, stating at paragraph 43 that the six to eight month 
    standard is a guideline that is neither a limitation period nor a fixed ceiling 
    on delay.  In the present case, Humphries J. found at paragraphs 53-55 that 
    four months of time could be attributed to systemic delay, a number of months 
    could be attributed to the general conduct of pre-trial procedure and a significant 
    amount of time could be attributed to the two
Charter

applications.

[80]

The appellant suggests that matters raised by his co-accused should 
    be classified as systemic delay.

Both accused were represented by 
    Mr. Rosenberg for the first four months.  Ms. Farewell then retained separate 
    counsel, but until the time of sentencing there was no suggestion of a conflict 
    between accused.

[81]

The
voir dire
on the search warrant issue was held on 7 and 
    8 February 2006.  At the beginning of the
voir dire
, counsel for Ms. 
    Farewell introduced herself to the Court.  Over the next two days of proceedings, 
    which filled 155 pages of transcript, she spoke only eight words, those being 
    yes, my Lady on two occasions and in Nelson on one occasion.  Mr. Rosenberg 
    did all of the cross-examination of witnesses and the entire submission on 
    behalf of the accused.

[82]

On 3 April 2006 counsel for Ms. Farewell appeared before Mr. Justice 
    McEwan and introduced herself as counsel for Ms. Farewell and agent for Mr. 
    Rosenberg.  She spoke on behalf of both accused in setting a date for continuation 
    of the trial of 26 October 2006 in Rossland.

[83]

On 4 October 2006 both defence counsel were present by teleconference 
    before Madam Justice Humphries.  When Mr. Rosenberg raised the matter of a 
    delay argument, Humphries J. reminded him that she was more than anxious 
    to do this trial at the time of the
voir dire
in Nelson.  Dates and 
    video conferencing were discussed and the only involvement by counsel for 
    Ms. Farewell was to either agree or state she was indifferent.  Mr. Rosenberg 
    spoke for both accused.

[84]

On 27 October 2006 the trial continued in Vancouver and counsel for 
    Ms. Farewell appeared by video.  The s. 11(b) application was heard.  Mr. 
    Rosenberg presented a submission that consumed 68 pages of transcript.  Counsel 
    for Ms. Farewell said Im relying on the argument presented by Mr. Rosenberg 
    on behalf of Tamara Lynne Farewell.  Crown counsel responded and at the end 
    of the Crowns submissions counsel for Ms. Farewell delivered a one page reply.

[85]

On 7 November 2006, before Madam Justice Humphries, Mr. Rosenberg appeared 
    for Mr. Farewell and said he was agent for Ms. Underwood, whos acting for 
    the co-accused, Tammy Farewell.  Madam Justice Humphries announced that she 
    was dismissing the s. 11(b) application.  She also stated she wanted to address 
    the continuation date and get the trial date set as soon as possible.  Counsel 
    said they would be available on 14 November 2006 to discuss dates for the 
    continuation of the trial.

[86]

On 14 November 2006 both defence counsel appeared by teleconference.  
    Ms. Underwood said she would be available in January 2007.  Mr. Rosenberg 
    announced that his client was seeking new counsel, but it may be that Ms. 
    Underwood will be able to represent both accused.  The judge said she would 
    like to keep this on the rails and get a date as soon as possible.  It was 
    therefore adjourned to 27 November 2006.

[87]

On 27 November 2006 Mr. Rosenberg informed the judge that his client 
    was still seeking other counsel.  Ms. Underwood said she was discussing with 
    Ms. Farewell the prospect of acting for both accused but she was concerned 
    that a conflict might develop at the sentence hearing.  Crown counsel said 
    he wanted to fix a date for trial.  The dates of 8  10 January 2007 were 
    agreed upon.

[88]

The trial continued on 8 January 2007 with new counsel appearing for 
    the appellant.  Admissions were made on behalf of Ms. Farewell by Ms. Underwood, 
    to which the appellants counsel agreed.  Both accused were found guilty.  
    The sentence hearing took place the next day during which both defence counsel 
    fully participated.

[89]

I am of the opinion that in the circumstances of this case it would 
    not be appropriate to define delays caused by the co-accused as systemic delays.  
    The jurisprudence in this area defines delays caused by a co-accused as neutral 
    delays which do not count against either party in the s. 11(b) reasonableness 
    assessment:
R. v. Martin
, 2002 BCSC 1242 at para. 30;
R. 
    v. Sapara
, 2001 ABCA 59 at para. 57;
R. v. Moreno
, [1999] 
    B.C.J. No. 1461 at para. 11.

(ii)        Waivers of time periods

[90]

The appellant states in his factum that he expressly and repeatedly 
    refused to waive any delays.  It is true that he never went on record as doing 
    so.  However, in spite of his frequent assertions of s. 11(b) rights he was 
    directly responsible for several delays and acquiesced in other matters that 
    caused delays.  However, in view of my finding that the length of systemic 
    delay was not sufficient to ground a stay of proceedings I do not find it 
    necessary to decide whether acquiescence is tantamount to waiver.

(iii)       Reasons for delay

[91]

This factor focuses on four possible explanations for delay: i) delay 
    inherent to the proceedings; ii) delay attributable to the Crown; iii) delay 
    attributable to the accused; iv) delay that is institutional or systemic to 
    the court system.  The courts responsibility is to attribute each part of 
    the delay to a source and assess the reasonableness of the delay under each 
    source: see
Morin
,
supra
, paragraphs 64 -73.  The sources 
    can go beyond the four identified sources.

A.         Delay inherent to the proceedings

[92]

A court should look to delays that are unavoidable based on the nature 
    of the case and the procedural requirements that are associated with the case.  
    Professor Hogg had this to say at page 52-9 of
Constitutional Law of 
    Canada
(5
th
ed., 2007):

Under 
    this head, a complex case will have longer inherent requirements than a simple 
    case; and a case involving a preliminary inquiry will have longer inherent 
    requirements than a case that proceeds directly to trial.  Delay that is judged 
    to be inherent is reasonable.

A 
    situation of multiple or co-accused may increase the complexity of a case 
    and lengthen the inherent requirements of the case:
R. v. George
, 
    2006 MBCA 150 at para. 32;
Martin
,
supra
,

at 
    para. 13.

B.         Delay attributable to the Crown

[93]

This includes adjournments by the Crown, venue change motions, failure 
    or delay in Crown disclosure, and other delays.  Crown delay does not lengthen 
    the period of reasonableness.

C.        Delay attributable to the accused

[94]

This includes all matters commenced by the accused that contribute 
    to delay.  Of particular relevance to the present case, this source of delay 
    covers constitutional attacks on search warrants.  Delay attributable to the 
    accused does not lengthen the period of reasonableness.

D.        Delay inherent to the system

[95]

This generally focuses on the impact of court congestion and difficulties 
    with scheduling time in court.  As indicated earlier, four months of systemic 
    delay is not sufficient to violate the
Charter
rights of the 
    accused.

E.         Other sources of delay

[96]

Delay attributable to a co-accused is generally seen as falling into 
    this category:
Sapara
at para. 57.  As discussed above, this 
    type of delay is generally a neutral factor as between the s. 11(b) applicant 
    and the Crown.

(v)        Prejudice to the accused

[97]

This factor acknowledges the fact that an accused awaiting trial in 
    custody or under restrictive bail conditions suffers an ongoing deprivation 
    of liberty and therefore suffers prejudice.  This should be reflected by the 
    court giving a narrow interpretation to the concept of reasonable delay.  
    In
Askov
Mr. Justice Cory suggested that a presumption of prejudice 
    to the accused arose with the passage of time and long delays caused this 
    presumption to be virtually irrefutable.

[98]

However, in
Morin
,

Mr. Justice Sopinka noted that 
    some accused are not interested in exercising their s. 11(b) right, but rather 
    endeavour to have this right infringed by the Crown so as to avoid a trial 
    on the merits of their case.  The s. 11(b) right, therefore, must be interpreted 
    in a manner that recognizes the manner in which it can be abused.  Inferring 
    prejudice from the mere passage of time ignores the fact that some accused 
    may derive a substantial benefit from delay.

[99]

The case at bar clearly falls into this category.  In paragraph 71 
    of her reasons Madam Justice Humphries wrote that the two accused have carefully 
    watched this process until enough delay accumulated that they could apply 
    for a stay of proceedingswhile attempting to look blameless themselves.  
    Considering this finding by Humphries J., any presumption of prejudice arising 
    out of the delay is unwarranted.

[100]

Focusing on actual prejudice, the accused argues that he has suffered 
    emotional and financial prejudice as a result of the delay and that his son 
    has now forgotten a conversation that he had on the night of the accuseds 
    arrest which was of unspecified relevance to the charges.  Humphries J. disposed 
    of these arguments at paragraph 85 of her reasons as unsupported by the evidence 
    and I see no basis upon which to interfere with her findings.
As 
    a result, the accused has not been able to establish any actual prejudice 
    and the accused cannot rely on the delay to found a presumption of prejudice.

4.         Findings of fact not supported by the evidence

[101]

The appellant takes exception to Madam Justice Humphries finding that 
    separating the
Charter
issues from the trial meant an inevitable 
    additional delay.  He asserts there is no evidence that it would have been 
    more effective not to sever the
Charter
issues from the main 
    trial.  The judge said at paragraph 85 that common sense has to rule.  She 
    pointed out that defence counsel should have co-operated with the Crown 
    to see that the case was heard all at once, and not to suggest that the initial
Charter

voir dire
be done separately.   In paragraph 
    86 she concluded, this trial would have been completed a year ago if efforts 
    had been made to properly schedule the hearing.

[102]

The judge had expressed the same opinion previously and said she was 
    prepared to go ahead with the trial immediately following the
voir dire
.  
    She later objected to the delayed date for continuing the trial, but to no 
    avail as defence counsel were not available at the earlier dates which she 
    suggested.

[103]

It was not up to Madam Justice Humphries to lead evidence to justify 
    her expressions of dismay at the protracted proceedings and how the trial 
    could have been expedited.  As a judge she is part of the system, knowledgeable 
    in the working of the system and able to express a common sense opinion 
    as to how, if it was desired, the case could have been completed in a year 
    less than it was.  There is no basis upon which to say that the judge was 
    making findings not supported by the evidence.

[104]

I am of the opinion that 
    the judge did not err when she held as follows on the section 11(b) issue:

[89]      
    [I]n all the circumstances here, the accused have not met the burden of establishing 
    that their right to a trial within a reasonable time has been breached by 
    Crown and/or institutional delay, nor is the time unreasonable when all the 
    factors set out in
Morin
are considered and weighed.  The four months 
    that might, if sufficient evidence had been produced, fall on the side of 
    institutional delay alone, is not sufficient to justify a stay.  Nor have 
    the accused established that they have suffered prejudice of the nature that 
    would justify such a drastic remedy.

[90]      
    The application for a stay of proceedings based on an alleged infringement 
    of the accuseds rights to be tried within a reasonable time pursuant to s. 
    11(b) of the
Charter
is dismissed.

[105]

I would not accede to this ground of appeal.

Conclusion

[106]

I would dismiss the appeal.

The Honourable 
    Mr. Justice Thackray


I AGREE:

The Honourable Mr. Justice Smith

I AGREE:

The 
    Honourable Mr. Justice Lowry


