R. v. Gentles

2015 BCSC 1496 R. v. Gentles IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Gentles, 2015 BCSC 1496 Date: 20150708 Docket: 31951-2 Registry: Williams Lake Regina v. Martin William Michael Gentles Before: The Honourable Mr. Justice Truscott Oral Ruling re Application for Stay of Proceedings Counsel for Crown: J.M.M. Dufour Counsel for Defence: K.M. Walker, Q.C. Place and Date of Hearing: Williams Lake, B.C. July 6, 2015 Place and Date of Judgment: Williams Lake, B.C. July 8, 2015 [1] THE COURT: Mr. Gentles applies for a stay of the three charges of which he has been convicted on the basis of an alleged breach by the Crown of s. 11(b) of the Charter, which states: 11. Any person charged with an offence has the right . . . (b) to be tried within a reasonable time. [2] Mr. Gentles submits that he was first charged with offences arising out of the motor vehicle accident of April 22, 2012 on that same day, and is not scheduled to be sentenced on the charges of which he has been found guilty until today, July 8, 2015, a time period of over three years. He submits, on the law, this is beyond any reasonable time allowed by s. 11(b) of the Charter. [3] Some important dates during the period leading up to the scheduled sentencing date of today include the following. [4] April 22, 2012, Mr. Gentles is charged with two counts of causing death and causing serious bodily injury and one count of having consumed alcohol in excess of 80 milligrams of alcohol in 100 millilitres of blood. [5] The next date is June 27, 2012. On his second appearance in court the Crown stayed the charges. [6] April 25, 2013, is the next significant day. A new information was sworn against Mr. Gentles for seven counts related to the same motor vehicle incident. [7] Following that, on June 12, 2013, Mr. Gentles elected trial by judge alone and requested a preliminary hearing. [8] June 19, 2013, one week later, a preliminary hearing was fixed for October 7 to 9, 2013. On those dates, October 7 to 9, 2013, the preliminary inquiry was held, and Mr. Gentles was bound over for trial. The charges were then adjourned back to the Supreme Court for November 18, 2013. [9] On December 18, 2013, a trial date by agreement was scheduled for November 24, 2014, to December 19, 2014. On the dates of November 24, 2014, through to December 11, 2014, the trial was held and concluded and judgment was reserved. [10] On February 3, 2015, I rendered my decision holding Mr. Gentles guilty of the three counts which I have stated and a presentence report was ordered. [11] On July 6, 2015, the s. 11(b) stay application was heard by me, and today, July 8, 2015, is the scheduled date for determination of that stay application or for sentencing, if that proceeds. [12] During submissions on the s. 11(b) application for a stay on July 6, 2015, Mr. Gentles accepted that the period of time following the second information being sworn on April 25, 2013, through to trial in Supreme Court, could be considered by the Supreme Court of Canada as all being reasonable times periods to get to trial. They all fall into the categories of intake time, inherent time requirements in the court system, preliminary hearing time, consent scheduling time, institutional delay in Williams Lake because of the limits on institutional resources, and trial time. [13] Where Mr. Gentles draws the line is at the second information that was sworn on April 25, 2013. He submits the reasonable time to get to trial was exceeded when the time between the first information of April 22, 2012, to the second information of April 25, 2013, a period of a little over one year, is added to the other time periods. [14] He submits this time period should lie at the feet of the Crown because the Crown has refused to offer any explanation for this gap period of a little over one year. He accepts that the Crown has no obligation to inform him or the court of what it was doing in this gap period, but in the absence of giving any explanation, he submits this time should count against the Crown. [15] He relies upon the decision of the Court of Appeal in R. v. Sanghera in 2014 where Madam Justice MacKenzie for the majority accepted that the decision of the Crown to prefer a direct indictment was one of prosecutorial discretion and could not be held against the Crown even though it created delay. However, she also said that the delay caused by the decision merited consideration because it prolonged the overall delay and extended the period of prejudice to the accused. There does not appear to have been any gap period in R. v. Sanghera. [16] Similarly, Mr. Gentles accepts the Crown can stand behind prosecutorial discretion and does not have to give any explanation for the gap period between the two informations but must then accept it prolonged the overall time period and created an unreasonable total time period in violation of s. 11(b) of the Charter. [17] When the Crown stayed the first information on June 27, 2012, and until it filed the second information on April 25, 2013, Mr. Gentles was not charged. Accordingly, this time period, by law, cannot be counted under s. 11(b) of the Charter. [18] In R. v. Morin in 1992, Mr. Justice Sopinka, in the Supreme Court of Canada, wrote for the majority, saying: Pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself it is not counted in determining the length of the delay. [19] He also clarified the individual rights that s. 11(b) is designed to protect are (1) the right to security of the person which is protected by seeking to minimize the anxiety, concern, and stigma of exposure to criminal proceedings, (2) the right to liberty which is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions, and (3) the right to a fair trial which is protected by attempting to ensure that proceedings take place while evidence is available and fresh. [20] He also said a determination of whether s. 11(b) has been breached is not by the application of any mathematical or administrative formula but by a judicial determination balancing the interests of the accused against factors which inevitably lead to delay, such as: the length of the delay; waiver of time periods; reasons for delay, including inherent time requirements of the case, actions of the accused and the Crown, limits on institutional resources, and other reasons for delay; and finally, prejudice to the accused. [21] He pointed out that all cases are subject to intake requirements and some go through preliminary inquiries before trial. Account must also be taken of the limits of institutional resources which runs from the time the parties are ready for trial until the system can accommodate the proceedings. R. v. Morin was not a gap case, however. [22] In R. v. Kalanj in 1989 in the Supreme Court of Canada, Mr. Justice McIntyre, writing for the majority, clarified that s. 11(b) only operates once a charge has been laid and not before. He did allow that delays occurring at the pre-charge stage are not immune from the law, however as, by way of example, an accused is always entitled to the right of full answer and defence which could be prejudiced by a pre-charge delay. Again, R. v. Kalanj was not a gap case. [23] In R. v. D.M. in 2012, the Ontario Supreme Court of Justice, relying on R. v. Kalanj, said the law is clear that for the purposes of s. 11(b) analysis, the delay calculation begins to run from the date the accused was first charged and ends with the trial. [24] Reference was made by the court in that case to other gap cases, including R. v. Antoine in 1983 where Mr. Justice Martin in the Ontario Court of Appeal said the preferable approach is to examine the entire period between the laying of the initial information and the trial of the accused to determine whether the delay in those circumstances was reasonable. The court considered it would be artificial and inaccurate to ignore the fact a charge of sexual assault was first laid in 1986 and re-laid in 2010. [25] Finally, there is the decision of the Ontario Court of Appeal in 2014 in R. v. Milani to consider. In that case, the accused was charged on December 22, 1987, but discharged following a preliminary inquiry on November 27, 1989, in respect of all offences except for one. DNA analysis advanced thereafter in the years following, and in 2010, the Crown preferred an indictment directly against the accused, and he was arrested and charged with 19 counts related to four home invasion sexual assaults. In those intervening years of 1989 to 2010, he had been unaware there was any ongoing investigation of his involvement in the sexual assaults. [26] It was acknowledged there was no actual prejudice to the accused during this gap period because he was unaware of the ongoing investigation or pending charges. It was argued, rather, that prejudice should be inferred. [27] The Crown submitted in that case that the time before indictment in 2010 should be considered pre-charge delay and not counted against the Crown for the purposes of s. 11(b) analysis because during the gap period from1989 to 2010, the accused was not "a person charged with an offence" as s. 11(b) requires. [28] The court confirmed the time frame to be considered runs from the moment that a person is charged and delays in the pre-charge period are not subject to analysis under s. 11(b). [29] The court concluded the trial judge applied the law correctly in concluding the time under s. 11(b) began to run in 1987 when the accused was first charged. However, the court said this finding was not determinative of whether the clock stopped running upon the accused's discharge in 1989 and whether the gap period thereafter was to be considered in the s. 11(b) analysis. [30] The court concluded a close examination of more recent Supreme Court cases such as R. v. Kalanj supported the conclusion that the gap period should not be included in the s. 11(b) analysis. Section 11(b) protects against the harms that result from post-charge delay but not from pre-charge delay. [31] The court said the focus of s. 11(b) is on the prejudice that might flow from unreasonable delay in being tried on criminal or quasi-criminal charges. The court concluded that extending the protection of s. 11(b) to persons not actively charged with an offence would not advance the objectives of this protection. Accordingly, the court concluded the trial judge erred in including the gap period in the analysis under s. 11(b) and the s. 11(b) application should be dismissed. [32] The court imposed a caveat, however, on its decision, saying there are circumstances in which unilateral state action may control whether or not charges are withdrawn or refiled, such as where a formal charge has been withdrawn with the intention of laying a new charge, or an information has been quashed with a new information laid, in which case, the court said, it makes sense to consider the entire period from when the first charges were laid as part of the s. 11(b) analysis. [33] The court said in such circumstances, the person, although not formally charged during the gap period, remains subject to the judicial process, and his s. 11(b) interests will continue to be affected by the knowledge or expectation that further charges are imminent. It is reasonable, the court said, to conclude he remains subject to the process of the court. [34] In the circumstances in R. v. Milani, the gap period was 1989 to 2010. There was nothing in the court system while the science of DNA analysis progressed in that period of time or while the police continued their investigation. Moreover, the accused was unaware of any ongoing investigation. [35] In the circumstances of Mr. Gentles, the original information was not quashed with a new information laid or any indication by the Crown in the original stay that there was any intention of laying a new information. There was nothing existing in the court system and no information about what the Crown or the police were doing in the gap period and no evidence that Mr. Gentles was aware of any ongoing investigation. [36] It appears from Ms. Stanton's affidavit that most of the witnesses were interviewed in April 2012, including receipt of Ms. Dagenais' opinion on alcohol and Corporal Erickson's accident reconstruction report. [37] With the majority of witnesses interviewed early in 2012, I am unable to conclude that the Crown had any intention early on or after June 2012 to recharge. If that were so, I expect they would likely have been in a position to do so in 2012, but they did not. [38] The Crown has no obligation in law to disclose what it was doing during the gap period, whether it was even thinking of recharging or not, and when it decided to recharge. I am not able to use this lack of evidence to conclude the Crown had any early intention to recharge. [39] Accordingly, I conclude the gap period cannot be used to add to the later time periods for consideration under s. 11(b). During the gap period, Mr. Gentles was not charged, and accordingly, the gap period cannot be used under s. 11(b). [40] I acknowledge Mr. Gentles says in his affidavit that during the gap period he was under the stigma and fear of recommencement. He does not say why he felt this way. He does not point to anything the Crown had said to him at any time to give him this concern. [41] During this time period, as of August 2012, Mr. Gentles was under bail conditions for other unrelated drug and firearm charges until he pled guilty to these charges in December 2013, and he was sentenced to an 18-month conditional sentence order in March 2014 which is still in effect today. [42] I am confident Mr. Gentles had a lot more stigma and fear from these charges than he ever had from any prospect of recommencement of the charges before me, if he had any concern at all. Even if he did have some reason for concern for recommencement of these charges, I conclude it was only slight and not to be considered. [43] I dismiss the application for a stay of proceedings, and we will proceed with sentencing. "Truscott J."