R. v. Perkins

2017 BCSC 2498 R. v. Perkins IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Perkins, 2017 BCSC 2498 Date: 20171214 Docket: 65705‑5 Registry: Chilliwack Regina v. Corey Jim Perkins Before: The Honourable Mr. Justice Ehrcke Oral Ruling on Application for Stay of Proceedings for Delay Counsel for the Crown: C. Fast O.L. Bick Counsel for the Accused: A. Nayyar, A/S (as Agent for D. Markovitz) Place and Date of Trial/Hearing: New Westminster, B.C. December 1, 2017 December 8, 2017 Place and Date of Judgment: New Westminster, B.C. December 14, 2017 Introduction [1] Corey Jim Perkins is charged on a 10‑count indictment with various drug and firearms offences, all alleged to have occurred on December 15, 2014. His trial in British Columbia Supreme Court is scheduled to begin January 29, 2018, and is anticipated to last until February 23, 2018. [2] Mr. Perkins now applies for a judicial stay of proceedings based on his contention that there has been an unreasonable delay in bringing this matter to trial. He claims that there has been an infringement of his rights under s. 11(b) and s. 7 of the Canadian Charter of Rights and Freedoms. The Crown maintains that there has not been any unreasonable delay of Mr. Perkins' trial and that his application should accordingly be dismissed. Facts [3] Mr. Perkins was arrested by members of the Abbotsford Police Department on December 15, 2014, with respect to charges in Police File Number 14‑42847. He was interviewed the next day by Constable Baker and Constable Doucette. Constable Doucette told him he was "detained with respect to the firearms and drug trafficking" and gave him the standard police warning. Near the end of the 34‑page interview, Constable Baker told him, "I don't know what's going to happen, Corey, with your situation here." He said, "I'll take you back down and we'll try and get you over there for court quick." [4] Mr. Perkins was not, however, taken to court that day. Instead, as set out in Mr. Perkins' Affidavit #1 (sworn November 1, 2017), he was released on December 16, 2014, without being charged and without a court appearance. [5] According to the affidavit of Amanda Buksh, legal assistant with the Public Prosecution Service of Canada, the police made their initial submission of a report to Crown Counsel on September 16, 2015, at which time Le Dressay & Associates had conduct of the matter. The Public Prosecution Service of Canada opened their file on July 8, 2016. In between those dates, the police sent additional material to the Crown in November 2015, January 2016, February 2016, and March 2016, including witness statements, fingerprint reports, cellular phone search photographs, firearm analysis reports, and drug analysis certificates. [6] In his affidavit, Mr. Perkins deposes that after his release, he continued working as a welder but "felt like I was in a state of limbo with respect to my chosen vocational path". He states that he was stopped from time to time by police for breathalyzer checks and searches, and was advised that he would likely be re‑arrested at some point for the December 2014 matter. [7] On May 11, 2016, Mr. Perkins was arrested on unrelated charges in respect of Police File Number 16‑15781. He is being tried on a separate indictment for those matters, with that trial set for January 8, 2018. He has been in custody since his May 11, 2016 arrest. [8] Information 84261‑1 in relation to the 2014 matters was sworn May 12, 2016. [9] The Crown has provided a brief chronology of events following the swearing of the information: At arraignment, he requested a trial in Provincial Court. The trial was scheduled to conclude by January 27, 2017, which would have been eight months and 16 days after he was charged; On December 16, 2016, counsel for Mr. Perkins indicated to Supreme Court scheduling that he wished to have the trial heard in New Westminster as opposed to Chilliwack; On January 3, 2017, Mr. Perkins re‑elected, with the consent of the Crown, to have a trial in Supreme Court before a judge without a jury. He waived the right to a preliminary inquiry and consented to stand trial in Supreme Court; Mr. Perkins' first appearance in Supreme Court was January 30, 2017. Mr. Perkins attempted to apply to change venue on February 14, 2017. At that time the Court asked that the application be scheduled for a longer period of time, and for Mr. Perkins' counsel to appear in person, as opposed to via telephone; Mr. Perkins applied to change venue from Chilliwack to Vancouver or New Westminster on March 13, 2017. The Court allowed Mr. Perkins' application to change venue, but noted that the first available dates in Chilliwack for a 4‑week trial were in August 2017, and the earliest available dates in New Westminster were beginning October 16, 2017. Mr. Perkins' counsel waived delay on the record; Scheduling in New Westminster offered a trial date of 4 weeks beginning October 16, 2017, for 4 weeks. The Crown was available, but counsel for Mr. Perkins was in a trial until December 15, 2017. If this trial date were obtained, it would have resulted in a trial ending on November 10, 2017, which is 17 months and 30 days after the charges; The next date that New Westminster Scheduling offered when counsel for Mr. Perkins was available was January 8, 2018 for 4 weeks. This was fixed, and on June 2, 2017, Crown applied to adjourn the trial for a period of 3 weeks. The reason for the adjournment was to secure an early trial date for Mr. Perkins' other matter, Chilliwack BCSC #65721, where the co‑accused's defence counsel was available in January 2018, but then not again available until July 2018. Mr. Perkins opposed the adjournment, which was granted. The current trial dates were then set. Legal framework [10] Section 11(b) of the Charter provides: 11. Any person charged with an offence has the right . . . (b) to be tried within a reasonable time; [11] The proper application of s. 11(b) has been discussed repeatedly by the Supreme Court of Canada, most notably in R. v. Askov, [1990] 2 S.C.R. 1199; R. v. Morin, [1992] 1 S.C.R. 771; and R. v. Jordan, 2016 SCC 27. [12] Morin required courts to balance four factors in determining whether s. 11(b) has been infringed: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused's interests in liberty, security of the person, and a fair trial. The court in Morin suggested as a guideline that institutional delay of eight to 10 months in Provincial Court and a further six to eight months following committal for trial in superior court would generally not be seen as unreasonable. [13] In Jordan, the Supreme Court of Canada, by a five‑to‑four majority, opined that the Morin framework had proven unsatisfactory, and determined that henceforth, there should be a new framework involving a ceiling beyond which delay would be considered presumptively unreasonable. They set that ceiling at 18 months for cases tried in Provincial Court, and 30 months for cases tried in Superior Court (or cases tried in Provincial Court after a preliminary inquiry). [14] The analytical framework in Jordan requires judges first to determine the total delay between the charges and the end of the trial (paragraph 119) and then to deduct any part of that delay that was waived or caused solely by the defence (paragraph 120). If the result is over the Jordan ceiling, the burden is on the Crown to rebut the presumption of unreasonableness; but if the result is below the ceiling, then the burden is on the defence to show that the delay is unreasonable, by establishing both that it took meaningful and sustained steps to expedite the proceedings, and that the case took markedly longer than it reasonably should have (paragraph 105). The starting point for the calculation of delay [15] In the present case, the Crown and the defence do not agree on when the "clock starts to run" for the calculation of the period of delay. [16] Crown Counsel submits that the starting point is the date on which the information charging the 2014 offences was first sworn, that is, May 12, 2016. The Crown relies on the decision of the Supreme Court of Canada in R. v. Kalanj and Pion, [1989] 1 S.C.R. 1594, where a majority of the court held: In dealing with s. 11, it must first be recognized that it is limited in its terms to a special group of persons, those "charged with an offence". It deals primarily with matters relating to the trial. It is to be noted that s. 11 is distinct from s. 10 and serves a different purpose: the two sections must not be equated. The framers of the Charter made a clear distinction between the rights guaranteed to a person arrested and those of a person upon charge. Sections 8 and 9, as well, guarantee essential rights ordinarily of significance in the investigatory period, separate and distinct from those covered in s. 11. It has been said that the purpose of s. 11 should be considered in deciding upon the extent of its application. This purpose, it has been said, is to afford protection for the liberty and security interests of persons accused of crime. While it is true that s. 11 operates for this purpose, I emphasize that it does so within its own sphere. It is not, nor was it intended to be, the sole guarantor and protector of such rights. As stated above, s. 7 affords broad protection for liberty and security, while the other sections, particularly those dealing with legal rights, apply to protect those rights in certain stated circumstances. Section 11 affords its protection after an accused is charged with an offence. The specific language of s. 11 should not be ignored and the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the section into the pre-charge period. The purpose of s. 11(b) is clear. It is concerned with the period between the laying of the charge and the conclusion of the trial and it provides that a person charged with an offence will be promptly dealt with. [Emphasis added] [17] The Court went on to observe that if circumstances arise requiring consideration of prejudice from pre‑charge delay, such an exceptional case can be dealt with by other sections of the Charter, such as s. 7, and other sections of the Criminal Code, such as what are now ss. 505, 650(3), and 802(1). [18] Notwithstanding the decision in Kalanj, Defence Counsel submits that although time is generally calculated for s. 11(b) of the Charter from when the charges are laid, in the particular circumstances of this case, a different starting point must be used, namely the date on which Mr. Perkins was first arrested. The Defence submits that this case is unusual because here there was nothing preventing the charges from being laid at the time of Mr. Perkins' first arrest in 2014. The Defence says not only could charges have been laid at that time but, in addition, they should have been laid at that time if they were going to be laid at all. [19] In support of that proposition, the defence relies on the transcript of Mr. Perkins' May 31, 2016 bail hearing, where the lawyer then acting for the Crown said in submissions: The arrest in 2014 resulted in his release and no charges were pursued at that time. I know my friend has made the inquiry a number of times and Your Honour might well be interested as to why the matter went into abeyance after 2014. Unfortunately, it's not a matter that I'm able to discuss today. I'll seek instructions to advise my friend of those reasons, but what I can tell you that ‑‑ is that there was certainly no investigative purpose. It wasn't a case where the police put the file aside to wait to see if he would go back to his criminal ways. That was not the purpose of the file going into abeyance. It did go into abeyance ‑‑ abeyance, but that was not the reasons. But what did happen, of course, is that Mr. Perkins did return to his criminal lifestyle, this time at a slightly lower level, but certainly just as concerning, in my respectful submission. [20] On the present application, Defence Counsel has referred to a number of newspaper articles about an investigation into allegations of corruption against certain Abbotsford police officers. He submits that the reason why charges against Mr. Perkins were not laid in 2014 was for the improper purpose of avoiding embarrassment in relation to that investigation. [21] On the evidence before me, I am unable to determine the precise reason why the 2014 charges were not laid until 2016. In the circumstances, to draw the inference of an oblique or improper motive, as suggested by Defence Counsel, would be speculation. In any event, I do not agree with the premise of the defence argument, namely, that where charges could or should have been laid earlier than when they were, the calculation of trial delay under s. 11(b) of the Charter must begin at that earlier date. [22] The defence position is based primarily on a trial decision from Ontario, R. v. Luoma, 2016 ONCJ 670, where Justice P.A. Schreck held at paragraph 29: [29] In my view, the conclusion in Kalanj was never intended to apply to a situation such as in the case at bar where the investigation has been completed and the accused has been arrested and is subject to the court's process but where the police, in contravention of s. 505, have simply failed to have an Information sworn due to some administrative oversight. In my view, the principles in Kalanj lead to the conclusion that the s. 11(b) clock starts to tick at the point when an Information is sworn or ought to have been sworn. Under this approach, the concerns driving the result in Kalanj about the inability of the courts to assess the investigatory progress of the case simply do not arise and the police are not able to artificially manipulate the s. 11(b) calculus, either intentionally or inadvertently. [Italics in original] [Underline Added] [23] I have also been referred to R. v. Ayers, 2010 BCPC 86; R. v. J.H.T., 2016 BCSC 2382; R. v. McGrath, 2015 BCSC 2581; R. v. Carter, [1986] 1 S.C.R. 981; R. v. Potvin, [1993] 2 S.C.R. 880; and R. v. MacDougall, [1998] 3 S.C.R. 45. [24] With the greatest of respect, it is my view that the principle enunciated in Luoma, that "the s. 11(b) clock starts to tick at the point when [an] information is sworn or ought to have been sworn" is wrong in law. The qualification "or ought to have been sworn" is inconsistent with the clear words of the Supreme Court of Canada in Kalanj, which are binding upon me. [25] Luoma, being an Ontario trial court decision, is not binding on courts in British Columbia, and Courts in this Province have not applied its approach: see R. v Akumu, 2017 BCSC 896 at paragraphs 26 to 29, and R. v. Harris, 2017 BCSC 1091 at paragraphs 60 to 71. [26] As well, I note that Luoma has not been followed elsewhere in Canada outside of Ontario: see R. v. Diaz, 2016 QCCQ 14351, and Paquette c. R., 2017 QCCS 677. In the latter case, L'Honorable France Charbonneau J.C.S. of the Cour Supérieure du Quebec, referring specifically to Luoma, held at paragraph 123: [123] Le Tribunal estime que le début des procédures commence avec le dépôt des accusations, soit le 31 octobre 2011, malgré certaines décisions qui considèrent qu'il faut plutôt prendre en compte la date de l'infraction. [27] Accordingly, for the purpose of deciding whether Mr. Perkins' rights under s. 11(b) of the Charter have been infringed, I shall consider the time from the laying of the information until the anticipated end of the trial. Calculation of trial delay [28] As the Supreme Court of Canada's reasons in Jordan were delivered on July 8, 2016, less than two months after the charges were laid against Mr. Perkins, Crown Counsel submits that this case need not be assessed under the transitional provisions. I agree with that approach. This case can be decided entirely in accordance with the new framework enunciated in Jordan. [29] The period from May 12, 2016 to February 23, 2018 amounts to 21.5 months. Crown Counsel submits that the four and one‑quarter month period from August 8, 2017 (the first available trial date in Chilliwack), until December 15, 2017, should properly be attributed to the defence application for a change of venue and Defence Counsel's subsequent unavailability until December 15, 2017. I agree that the defence either waived or was responsible for this delay and that it should therefore be deducted: see R. v. Cody, 2017 SCC 31 at paragraph 28. [30] In any event, even if that four and one‑quarter month period were not deducted, the total delay of 21.5 months from arrest to the projected end of trial is well below the benchmark of 30 months suggested in Jordan for a trial in superior court, and the delay is presumed to be reasonable. The onus therefore falls to the defence to show that the delay was unreasonable, and to demonstrate that it attempted to set the earliest possible hearing date and had put the Crown on notice that delay was becoming a problem. I am not satisfied that the defence has met that onus, and accordingly, I find that there has been no infringement of Mr. Perkins' rights under s. 11(b) of the Charter. Abuse of process [31] In the alternative, the defence submits that the pre‑charge delay in this case amounts to an abuse of process, and that the charges against Mr. Perkins should be stayed pursuant to ss. 7 and 11(d) of the Charter. [32] Section 7 provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [33] Section 11(d) provides: 11 Any person charged with an offence has the right . . . (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [34] In R. v. Mills, [1986] 1 S.C.R. 863, Lamer J. wrote at page 945: Pre-charge delay is relevant under ss. 7 and 11(d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial. Pre‑charge delay is as relevant as any other form of pre‑charge or post‑charge conduct which has a bearing upon the fairness of the trial. In other words, pre‑-charge delay is relevant to those interests which are protected by the right to a fair trial whereas it is irrelevant to those which are protected by s. 11(b). Similarly, pre‑charge delay may be a relevant consideration under the doctrine of abuse of process in the same manner as any other conduct by the police or the Crown which may be held to constitute an abuse of process. [35] The doctrine of abuse of process has been discussed many times, including in R. v. Rourke, [1978] 1 S.C.R. 1021; R. v. O'Connor, [1995] 4 S.C.R. 411; R. v. Hunt, 2016 NLCA 61; and R. v. Hunt, 2017 SCC 25. [36] In R. v. Babos, 2014 SCC 16, the Supreme Court of Canada emphasized that a stay of proceedings is a drastic remedy that will only be warranted in the "clearest of cases", since it deprives the public of the opportunity to see justice done on the merits. These rare cases will generally fall into one of two categories: (1) where state conduct compromises the "fairness of an accused's trial" (the "main category"); and (2) where state conduct creates no threat to trial fairness but "risks undermining the integrity of the judicial process" (the "residual category"). [37] At paragraph 32, the Court in Babos sets out a three‑part test: [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements: (1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" . . . (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" [citations omitted]. [38] With respect to trial fairness, the defence refers to the fact that one of the investigators, Sergeant Herbert, has died since the 2014 arrest. The Crown submits, however, that Sergeant Herbert was not a lead investigator. His role was that he had the key for a barn that was searched. The Crown submits that his unavailability is more likely to assist rather than harm the defence. [39] The defence also refers to the fact that Constable Davies, the sole affiant in relation to the informations to obtain warrants, has been criminally charged and is on sick leave. [40] The current trial is scheduled to begin on January 29, 2018, and no witnesses have yet been called. At this time, I cannot say that Mr. Perkins' right to a fair trial has been prejudiced or that prejudice will be carried forward through the conduct of the trial. A finding of trial unfairness would be premature: R. v. W.K.L., [1991] 1 S.C.R. 1091. [41] As to the residual category, I can find no basis for concluding that the delay in laying the charges was occasioned by any oblique or improper motive. [42] The defence submits that there was a breach of the requirements of s. 505 of the Criminal Code because an information was not laid "as soon as practicable" after Mr. Perkins' arrest and release in December 2014. Section 505 provides: 505 Where (a) an appearance notice has been issued to an accused under section 496, or (b) an accused has been released from custody under section 497 or 498, an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court. [43] The defence bears the onus of establishing facts that would amount to a Charter breach. No evidence has been put before me from which one could determine the circumstances under which Mr. Perkins was released from custody on December 16, 2014. [44] In order for s. 505 to have application, the defence would have to show that Mr. Perkins was issued an appearance notice under s. 496, or that he was released under s. 497 or s. 498. As the defence does not suggest that Mr. Perkins was issued an appearance notice, I turn to the latter two sections. [45] Section 497(1) provides: 497(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b) or (c), the peace officer shall, as soon as practicable, (a) release the person from custody with the intention of compelling their appearance by way of summons; or (b) issue an appearance notice to the person and then release them. [46] The transcript of Mr. Perkins' interview (Exhibit 2) shows that when he was arrested in December 2014, it was with respect to "firearms and drug trafficking" (page 2). There is reference to "coke, crack, heroin" (page 23), as well as to "a shotgun", "quite a few handguns", and "a couple of assault rifles" (pages 24 and 28). Section 497 only applies to a person who has been arrested for an offence described in paragraph 496(a), (b), or (c), that is, an offence that is either an absolute jurisdiction offence, a hybrid offence, or a summary conviction offence. The defence has not shown that Mr. Perkins was arrested for such an offence or that he was released under s. 497. [47] Section 498(1) provides: 498 (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable, (a) release the person with the intention of compelling their appearance by way of summons; (b) release the person on their giving a promise to appear; (c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or (d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs. [48] The defence has not shown that Mr. Perkins was arrested under the circumstances set out in the opening paragraph of s. 498(1), nor that he was released with the intention of compelling his appearance by way of summons, promise to appear, or recognizance. [49] As the defence has not shown that Mr. Perkins was released under the conditions of either clause (a) or (b) of s. 505, the requirement in that section of laying an information as soon as practicable has no application to this case. [50] In any event, even if s. 505 did apply, the failure to lay an information "as soon as practicable" would not preclude the subsequent laying of charges, nor would it result in a loss of jurisdiction over the offence. To hold otherwise would be to treat s. 505 as if it created a statutory limitation period, something which the Courts of Appeal of Ontario, Alberta, and British Columbia have all found not to be the case: R. v. Markovic (2005), 77 O.R. (3d) 752 (Ont. C.A.) at paragraphs 24 to 27; R. v. Hrankowski (1980), 54 C.C.C. (2d) 174 (Alta C.A.) at pages 180 to 181; and R. v. Tremblay (1982), 68 C.C.C. (2d) 273 (B.C.C.A.). [51] On the evidence before me, there is no basis for finding an abuse of process or for staying the proceedings. Conclusion [52] The defence has not satisfied its onus of demonstrating, on a balance of probabilities, that there has been an infringement of Mr. Perkins' rights under s. 7, s. 11(b), or s. 11(d) of the Charter. [53] The application for a judicial stay of proceedings is dismissed. "The Honourable Mr. Justice W.F. Ehrcke"