R. v. T.R.J.

2014 BCSC 1589 R. v. T.R.J. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. T.R.J., 2014 BCSC 1589 Date: 20140721 Docket: 26575-2 Registry: Prince Rupert Regina v. T.R.J. Restriction on publication: A publication ban has been imposed pursuant to s. 486.4(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, prohibiting publication of any information that could identify the victim, referred to in this judgment as "the complainant". This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Fitch (appearing via videoconference) Revised reasons: These reasons were revised on the cover page, and all references to T.J. were changed to T.R.J., on November 16, 2017. Oral Ruling on Section 11(b) Application Counsel for Crown: Chris P. Beattie Counsel for the Accused: Hollis Lucky (appearing via teleconference) Place and Date of Hearing: Prince Rupert, B.C. July 4, 2014 Place and Date of Judgment: Prince Rupert, B.C. July 21, 2014 A. Nature of the application [1] THE COURT: This is an application for a stay of proceedings. The applicant, T.R.J., contends he has been denied the right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter. [2] T.R.J. is charged with sexual interference in relation to his granddaughter. The indictment alleges that he: . . . between the 1st day of November, 2006 and the 17th day of March, 2008, inclusive, at or near Prince Rupert, in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of S.R.J., a person under the age of fourteen years, contrary to Section 151 of the Criminal Code. [3] It is my understanding that the complainant was between the ages of three and five at the time of the alleged offence. At that time, she and her brother lived in Prince Rupert with their father, who is the accused's son, in the home of the accused and his wife. The accused's son was frequently away from home for work. As a result, the accused and his wife often cared for their grandchildren. [4] A detailed timeline of events is set out below. By way of overview, T.R.J. was first arrested on sexual assault-related charges on April 23, 2008. The information was not sworn until December 19, 2008. On March 9, 2009, T.R.J. elected to be tried by a Supreme Court judge sitting without a jury. On January 6, 2010, at the conclusion of a two-day preliminary inquiry, T.R.J. was committed for trial. The trial was scheduled for eight days beginning March 28, 2011. On March 2, 2011, the defence applied successfully to adjourn the trial, and it was rescheduled to commence on January 9, 2012. The trial began on January 9, 2012, and lasted 14 days. T.R.J. was convicted on April 13, 2012, and sentenced on October 19, 2012. On October 10, 2013, the Court of Appeal allowed his appeal from conviction and ordered a new trial. That trial is scheduled to begin on July 28, 2014. [5] The parties are in agreement that much of the delay in this case is properly characterized as institutional delay. Approximately eight and a half months of the total delay can be termed "intake," and for the purposes of determining the inherent time requirements of the case, I consider this to be a moderately complex proceeding, largely because of the complainant's age, issues surrounding the admissibility under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46, of a video-recorded statement given by the complainant respecting the alleged offence, and the fact that the complainant was relocated to Alberta after the allegations surfaced. As I understand it, this relocation required a coordinated investigative effort between officers from the Calgary Police Service and the Prince Rupert detachment of the RCMP. [6] In my view, the actions of the Crown account for about one and a half months of delay, and the defence must accept responsibility for approximately nine and a half months of the delay. [7] The s. 11(b) analysis is fact-driven and case-specific. It is not determined by the application of a mathematical formula. It mandates a judicial balancing of the interests protected by s. 11(b) with the length and causes of the delay and any prejudice suffered by the accused to determine whether the delay is "unreasonable." This balancing must take into account both individual interests--security of the person, liberty, and the right to a fair trial--and society's interests in having the matter tried on its merits: R. v. Morin, [1992] 1 S.C.R. 771 at paras. 27-30, 32, and 51. [8] On its face, the length of the delay in this case is sufficient to trigger an inquiry into whether T.R.J.'s s. 11(b) rights have been violated. [9] I have concluded that the institutional delay approaches but does not exceed the outer limits of tolerability. The analysis in this case must take account of the fact that the total period of delay includes a preliminary inquiry and a successful appeal from conviction resulting in an order for a new trial. The administrative guidelines expressed by the court in Morin were never intended to be applied in a purely mechanical fashion (paras. 50-51). I recognize that the analysis must also take account of a complex of additional factors, including the constitutional obligation of government to commit sufficient resources to prevent unreasonable delay in the prosecution of criminal allegations. The inquiry is, at the end of the day, a product of the exercise of judicial discretion based on experience and the case-specific application of considerations that often pull the analysis in different directions. [10] On balance, and weighing the competing interests at play in this case, including the minimal prejudice suffered by the accused as a consequence of the delay and the desirability of ensuring that individuals accused of serious criminal offences be brought to trial in a timely fashion, I have concluded that the delay in bringing this matter to trial is not unreasonable. For the reasons that follow, T.R.J.'s application to stay proceedings is, accordingly, dismissed. B. Timeline [11] To frame the analysis that follows, I will set out in chronological order what I consider to be the relevant steps in this proceeding. In doing so, I will incorporate reference to the contents of T.R.J.'s affidavit filed for use on this application. T.R.J. was not cross-examined by the Crown on that affidavit. Where appropriate, I will also make reference to and briefly discuss circumstances relevant to the s. 11(b) analysis. April 28, 2008--first arrest T.R.J. is arrested at his home in Kitkatla for sexual assault and sexual interference. He was taken to the Prince Rupert RCMP detachment, held in cells overnight, and released by the police the following morning on a promise to appear and an undertaking. The terms of T.R.J.'s undertaking included not communicating with the complainant directly or indirectly. In addition, the undertaking prohibited T.R.J. from communicating with any person under the age of 14 and prevented him from going to any place where a person under the age of 14 may be found. I would pause to add that this term, which predated the swearing of the information by approximately eight months, was understandably regarded by T.R.J. as a term he was obliged to obey until January 15, 2009 (the date of his second arrest and release). The term was, in my respectful view, overly broad and unnecessary to achieve public protection in the period pending trial. I accept that, as crafted, the term imposed upon T.R.J. a significant liberty restriction that prevented him from attending movies, restaurants, shopping malls, or other community events for fear of being in the presence of someone under the age of 14 years. It ought to have been crafted (as it subsequently was) to permit T.R.J. to attend such locations and/or events in the presence of another adult who was aware of the nature of the allegations and the terms of the undertaking given by T.R.J. at the time of his initial arrest and release. June 30, 2008--first appearance T.R.J., who appears to have been unrepresented at the time, attended the Prince Rupert courthouse but his name was not on the list. As a consequence, registry staff told him he was free to go. As noted above, I accept that T.R.J. assumed his release conditions were still in place and governed himself according to those conditions. December 19, 2008--swearing of the information An information was sworn charging T.R.J. with sexual interference, contrary to s. 151 of the Code. A warrant for his arrest issued. January 15, 2009--second arrest T.R.J. was arrested in Prince Rupert, taken to the local RCMP detachment, and released a few hours later by the police on a second promise to appear and undertaking. The terms of T.R.J.'s second undertaking were more appropriately crafted. They included not communicating with the complainant directly or indirectly or going to any place where she might be found. In addition, the undertaking prohibited T.R.J. from being in the presence of any person under the age of 16 without a parent or guardian present. February 9, 2009--(second) first appearance T.R.J. appeared with an agent for legal aid counsel who had been appointed on his behalf. T.R.J. deposes in his affidavit that "I wished to have legal representation prior to my first appearance so that my matter could be dealt with quickly and with little delay." T.R.J. does not explain why, if this was the case, he appeared unrepresented on the original first appearance date. In any event, the matter was adjourned to March 9, 2009 to facilitate Crown disclosure. March 9, 2009--election T.R.J., through counsel, elected trial by judge alone and sought a preliminary inquiry on all issues. Counsel for the Crown and defence agreed that two days would be required to complete the preliminary inquiry. March 13, 2009--fix date for the preliminary inquiry An agent for T.R.J.'s counsel appeared and fixed March 16, 2010 as the date for a one-day preliminary inquiry. In November 2009, the case was call-forwarded and the preliminary inquiry date was advanced to January 5, 2010 as no judge was available to hear the matter on March 16, 2010. In addition, a second day (January 6, 2010) was reserved for the preliminary inquiry. T.R.J. deposes that "I was happy with this change as I wished to proceed with the court process as quickly as possible." January 5 and 6, 2010--preliminary inquiry and committal At the conclusion of a two-day preliminary inquiry, T.R.J. was ordered to stand trial. January 19, 2010--fix date for trial Counsel appeared and fixed a trial date for March 28, 2011. Eight days were set aside for the trial. A pre-trial conference was set for January 24, 2011. It would appear that these dates were fixed before the manager of Supreme Court scheduling in Prince Rupert. Unfortunately, proceedings before this judicial case manager are not recorded. It appears to be the practice of the judicial case manager in Prince Rupert, at least in some cases, to record on either the record of proceedings or notice of hearing earlier dates that were offered that could not be accommodated by counsel. I was advised by counsel, however, that this practice may not invariably be followed. Further, as will be noted below, when earlier dates are offered but are unacceptable to counsel or to an accused, it is sometimes not apparent from notes that have been made by the judicial case manager which party was unable to accommodate the earlier dates. In any event, following this fix date appearance, T.R.J. was informed by his counsel in writing that he would not be required to attend for the pre-trial conference. February 26, 2010--request by defence counsel for earlier trial dates On February 26, 2010, T.R.J.'s counsel contacted the judicial case manager to see if earlier trial dates were available. The email he sent to Supreme Court scheduling that day reads as follows: When we set this, we set March 28, 2011 because I thought [another named] file from Terrace might be scheduled for February/March 2011. Since that did not happen, could we do this trial in February or earlier in March? I make two observations about this email. First, it would appear that the March 28, 2011 trial date was fixed with regard to a competing obligation of defence counsel which precluded T.R.J.'s case from proceeding somewhat earlier than it otherwise might have. Second, and more importantly, while it is true that defence counsel sought earlier dates for trial, what he proposed was limited to the advancement of the scheduled trial date by a month, or perhaps two at the most. The material before me on this application confirms that defence counsel was subsequently advised that the trial of this matter could not be accommodated in February or earlier in March of 2011. October 4, 2010--change in counsel By this date, T.R.J. had been informed that his trial counsel had been appointed to the Provincial Court bench. It is worthy of note that T.R.J. learned of this development almost six months before his scheduled trial date. Also by this date, T.R.J. was in contact with a person employed by the legal aid office in Prince Rupert. He was advised that another lawyer was interested in taking over his file. He deposes that between October 4, 2010, and January 24, 2011, he does not recall hearing anything further from legal aid. He says that as of January 24, 2011 he was unaware as to whether the trial was proceeding as he had not been assigned new counsel. T.R.J.'s counsel on this application acknowledged that the single call T.R.J. made to the Prince Rupert legal aid office on or before October 4, 2010 is the only step he took over a period that spanned almost five months to ensure that he was represented and ready to proceed on the scheduled trial date of March 28, 2011. January 24, 2011--pre-trial conference No one appeared for T.R.J. at the pre-trial conference. As noted earlier, T.R.J. had been told that he was not required to attend the pre-trial conference. The court was informed that there was uncertainty about whether T.R.J. was aware of the pre-trial conference date or his obligation to attend. At the request of defence counsel who appeared for T.R.J. on this occasion, an endorsed warrant was issued for his arrest authorizing the police to release T.R.J. on the same conditions as before. The pre-trial conference was put over to February 21, 2011. In addressing the circumstances of the case, counsel who appeared on T.R.J.'s behalf submitted that the case was "somewhat unusual." He noted the very young age of the complainant and said this: The situation is that the complaint was made by the accused's wife originally. And then she subsequently retracted them, but in the interim the complainant, who resides in Calgary, or did reside in Calgary at the time of the allegation coming forward, gave a statement to the police there and in fact indicated there had been impropriety on the part of [T.R.J.]. He confirmed that a number of witnesses would have to be called at trial and advised the court that he anticipated an application pursuant to s. 715.1 of the Code would be made as well. February 18, 2011--arrest pursuant to the endorsed warrant The arrest warrant was executed and T.R.J. was released on the same terms as those governing his January 15, 2009 undertaking. February 21, 2011--new counsel appears for T.R.J. T.R.J. attended court and met his current counsel. T.R.J.'s counsel advised the court that he expected to be retained but was unfamiliar with the file and had just met with T.R.J. that morning. In response to an inquiry from the court, defence counsel advised that it was unlikely he would be ready to proceed with the scheduled March 28, 2011 trial date. Counsel for T.R.J. noted in this regard that he was appearing for another accused in an historical sexual assault case also scheduled to proceed on March 28, 2011. Counsel for the Crown took the position that T.R.J.'s case should take priority over the other scheduled matter. In taking this position, Crown counsel noted the passage of time in the T.R.J. matter, and that the complainant was a very young and vulnerable witness. Counsel for T.R.J. advised the court that if the T.R.J. matter was given priority, he would likely bring an application to adjourn to allow time for proper trial preparation. The pre-trial conference was adjourned to March 2, 2011. March 2, 2011--defence adjournment application On the return date, defence counsel confirmed that he had been retained in this matter. The Crown reiterated its position that T.R.J.'s case should be given priority given the passage of time and the extreme vulnerability of the complainant. Crown counsel advised the court that it anticipated calling nine witnesses and a variety of pre-trial applications would have to be argued. The Crown confirmed that the T.R.J. matter was the lengthier of the two cases scheduled to commence on March 28, 2011. Despite this, the Crown submitted that the T.R.J. matter should proceed before the other case. Before granting the adjournment, the court inquired of defence counsel whether counsel had made any inquiries with Supreme Court scheduling about the length of the delay that would be incurred if the T.R.J. matter was adjourned. T.R.J.'s counsel advised that no such inquiries had been made. He advised that the other matter was ready for trial and that the accused in that case was ready to proceed on March 28, 2011. He also advised the court that insofar as the T.R.J. matter was concerned, he had just commenced discussions with the Crown about the possibility of a resolution but had not had an opportunity to canvass this with his client. In granting the adjournment application made on T.R.J.'s behalf, the presiding judge said: First of all, Mr. Lucky is new counsel, and ... will not have had sufficient time, given his schedule, to prepare adequately to act on the [T.R.J.] matter. Secondly, the reason for the change of counsel was through no fault of the accused; it was entirely the result of his previous counsel being appointed to the provincial court bench. In those circumstances, to force the matter and go to trial would either presumably result in [T.R.J.] being denied counsel, or put counsel in the unenviable position of having to prepare, and prepare inadequately, for a fairly lengthy trial. So, the [T.R.J.] matter is going to have to go back to trial scheduling and have another date set. Presumably, counsel can arrange to do that this week. My suggestion would be that when you speak to trial scheduling, you see if there is any period of time that it can be brought back before the court, sooner rather than later. But I don't see an alternative, in light of the fact that new counsel are involved, and they are not in a position to proceed with the trial. And that's quite understandable. March 4, 2011--fix date The parties again appeared before the manager of Supreme Court scheduling in Prince Rupert. Once again, that proceeding was not recorded. The original March 28, 2011, trial date was rescheduled to January 9, 2012, with a pre-trial conference to be conducted on September 19, 2011. It is apparent from notes made by the judicial case manager that are reflected on the notice of hearing that was issued following this appearance that a number of earlier trial dates were offered, including: September 19, 2011; October 17, 2011; October 24, 2011; and November 28, 2011. On the hearing of this application, I inquired of T.R.J.'s counsel as to why those earlier dates could not be accommodated. I was informed by counsel that he has no notes of this appearance and no independent recollection why the earlier dates offered by the court were not taken out. At no time prior to the rescheduled January 9, 2012 trial date did T.R.J. inquire about earlier trial dates or seek the assistance of the court in having the matter moved forward. At the pre-trial conference on September 19, 2011 defence counsel asked that the matter be adjourned for a month because he was not in a position to have a productive discussion about the issues that might arise at trial or the witnesses who would be required to give evidence. The Crown did not object to the adjournment of the pre-trial conference but noted that defence counsel had, by then, had conduct of the matter for quite some time and expressed concern about jeopardizing the rescheduled trial dates. The pre-trial conference was put over to October 24, 2011 and proceeded that day. January 9 to February 17, 2012--trial The trial, which was scheduled for eight days, lasted 14 days. April 13, 2012--oral reasons for judgment T.R.J. was convicted of sexual interference. A pre-sentence report with a Gladue component was ordered to be prepared. I was advised on the hearing of this application that it takes approximately eight weeks in Prince Rupert for such a report to be completed. July 23, 2012--sentencing hearing Sentencing submissions were made, and the case was adjourned to October 19, 2012 for the delivery of reasons for sentence. October 19, 2012--sentencing T.R.J. was sentenced to 18 months' incarceration to be followed by three years' probation. November 6, 2012--conviction appeal T.R.J. filed an appeal from conviction. In accordance with the British Columbia Court of Appeal's pilot project regarding the scheduling of criminal conviction appeals, filing deadlines were fixed with the aim of having the appeal heard within one year of the date of filing of the notice of appeal. T.R.J.'s counsel was obliged to file and serve the appellant's factum on or before May 21, 2013. November 23, 2012--bail application T.R.J. was released on his own recognizance without sureties in the sum of $1,000 pending his appeal from conviction. The conditions of the recognizance largely mirror those that were in place prior to the trial. They were agreed to by counsel acting on behalf of T.R.J. Neilson J.A., who presided over the original bail pending appeal hearing, expressed her hope that the matter get on for hearing as quickly as possible. March 12, 2013--bail breach and amendment of terms T.R.J. breached his bail by attending at the house where his granddaughter lived at 3:05 p.m., after school had been let out. The matter came back before Kirkpatrick J.A. in Chambers. T.R.J. had, by then, been arrested and was in custody. T.R.J. was re-released on an additional term that he not attend in Prince Rupert without the permission of his bail supervisor. The additional term was worded in this way in recognition of the fact that T.R.J. would need to go to Prince Rupert for groceries and medical appointments. Counsel for T.R.J. advised the court that he was content with the wording of this additional term. In his affidavit, T.R.J. says that the imposition of this additional condition was difficult for him as he lives in Kitkatla, a small, isolated village, the residents of which obtain supplies and groceries in Prince Rupert which is only accessible by floatplane, boat, or ferry. It is troubling to me that T.R.J. did not directly address in the body of his affidavit the fact that this additional condition was not only consented to on his behalf, but made necessary by his own conduct which violated the most significant condition that attached to his recognizance. Further, in the course of the oral argument of this application, counsel acting on T.R.J.'s behalf was unable to identify any occasion on which T.R.J.'s bail supervisor declined to approve a request made by him to attend in Prince Rupert. T.R.J.'s prejudice claim, at least in relation to this point, must be assessed against this background. May 28, 2013--compliance hearing A compliance hearing was scheduled for May 28, 2013, as a consequence of the failure of T.R.J.'s counsel to file his factum on time. It would appear that the factum was filed at some point after May 21, 2013 (the date upon which it was due) but before the date set for the compliance hearing. October 10, 2013--appeal The Court of Appeal heard and allowed T.R.J.'s appeal from conviction. A new trial was ordered. October 30 to 31, 2013--appearances before the Supreme Court to fix a date for the new trial T.R.J.'s matter was adjourned to November 15, 2013, to fix a date for the retrial. November 15, 2013--further fix date The matter was adjourned to December 16, 2013, at the request of the Crown so they could reconsider their position in relation to this prosecution. December 16, 2013--further fix date I am advised that the matter was adjourned to January 20, 2014, to facilitate discussions between the Crown and defence regarding a possible resolution of the case. T.R.J.'s counsel submitted on the hearing of this application that the period between December 16, 2013 and January 24, 2014 is properly characterized as intake delay pending the new trial. January 24, 2014--fix date A new trial was scheduled for July 28, 2014. Five days were set aside for the retrial. C. The legal framework [12] Morin continues to be the leading authority on s. 11(b) applications. In Morin, the court (at paras. 27-30) held that s. 11(b) protects: the security, liberty and fair trial rights of accused persons, a societal interest in humane and fair treatment of accused persons, and a societal interest in ensuring that accused persons are brought to trial. To balance these individual and societal interests, Morin (at para. 31) directs trial courts to consider the following factors in assessing unreasonable delay applications: (1) The length of the delay [13] The length of the delay is measured from the date the information was sworn to the end of the trial, including sentencing: R. v. Kalanj, [1989] 1 S.C.R. 1594 at paras. 16-21; R. v. MacDougall, [1998] 3 S.C.R. 45 at para. 27. [14] In Morin, Justice Sopinka confirmed that delay is measured from the date the information is sworn to the end of the trial (at para. 35). He said this with respect to pre-charge delay: 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 is not counted in determining the length of the delay. [15] In R. v. Fagan, [1998] B.C.J. No. 2886 at para. 32, 115 B.C.A.C. 106, the court cited Kalanj for the proposition that a period of delay from arrest to charge is not to be taken into account. In R. v. Chow, 2009 BCCA 328 at para. 17, the court cited Kalanj in support of the proposition that absent unusual circumstances, pre-charge delay is not to be considered in the analysis. It was unnecessary for the court in Chow to consider the kind of circumstances that might justify a consideration of pre-charge delay. I note, however, that in Kalanj the court was clear that in exceptional cases where special circumstances arise, the prejudice said to have been occasioned as a consequence of pre-charge delay should be dealt with by reliance on general rules of law and, where necessary, the other sections of the Charter, including s. 7. [16] I raise this issue for two reasons. First, in the written submission filed on T.R.J.'s behalf, a suggestion was made that the overall period of delay is 75 months. That submission assumes that time begins to run from the date of T.R.J.'s initial arrest on April 23, 2008. It does not. It is well-settled that for the purposes of s. 11(b), time begins to run from the swearing of the information. Second, and in the alternative, T.R.J.'s counsel suggests that between the initial arrest and the swearing of the information and release of T.R.J. on revised terms (a period of approximately eight or nine months), T.R.J. was subject to highly restrictive bail conditions. He submits the prejudice T.R.J. suffered as a consequence of the delay in bringing this matter to trial (an appropriate and important factor in the s. 11(b) analysis) ought to take account of the prejudice that flowed from the restrictive bail terms in place prior to the swearing of the information. In the further alternative, T.R.J.'s counsel submits that prejudice flowing from the restrictive bail terms in place prior to the swearing of the information grounds an independent s. 7 breach. Although s. 7 was pleaded in the notice of application as an independent basis upon which a stay of proceedings might be founded, the applicant's counsel provided little substantive argument on the s. 7 analysis that could potentially lead to such a result in this case. [17] In my view, it is appropriate to consider the period of pre-charge delay as part of the background context that informs assessment of the inherent time requirements of the case. In an appropriate case, it may also be appropriate to consider the period of pre-charge delay in considering a claim grounded in s. 7 that the delay has operated to undermine the fairness of the trial. In this case, however, the prejudice said to have been occasioned by the unduly restrictive bail conditions in the period prior to the swearing of the information could not possibly support an independent claim for a stay of proceedings on s. 7 grounds. I would, therefore, not give effect to the submission of T.R.J.'s counsel in relation to the alleged s. 7 breach. [18] I will return to consider the relevance of the pre-charge delay period, and the restrictive bail conditions operative at that time, in addressing the issue of prejudice to the accused under the s. 11(b) framework. [19] A second twist on the Morin framework is that the delay in this case includes a period of appellate delay. The trial judge sentenced T.R.J. in October 2012. On October 10, 2013 the Court of Appeal allowed T.R.J.'s conviction appeal and ordered a new trial. During this period, T.R.J. was not "a person charged with an offence." He was, however, subject to some restrictions on his liberty while awaiting the outcome of his appeal. [20] In R. v. Potvin, [1993] 2 S.C.R. 880 at paras. 56-69, the court held that appellate delay should not be included in the calculation of total delay for the purposes of s. 11(b). [21] T.R.J. says Potvin did not clearly decide the point, or is otherwise distinguishable. He cites R. v. Barros, 2013 ABQB 210, for the proposition that appellate delay should be included in the period of delay to be assessed. In Barros, the court concluded that Potvin did not settle the appellate delay issue. The court in Barros applied the reasons of McLachlin J. (as she then was) in Potvin, holding that appellate delay should be counted in the resolution of s. 11(b) applications. Although those reasons concurred in the result reached by the majority of the court on whether s. 11(b) had been violated in that case, they are dissenting reasons on this point. [22] I am, of course, not bound by Barros. Further, I am not convinced that Barros reflects a proper appreciation of the holding in Potvin. This Court has consistently held that appellate delay does not factor into a section 11(b) analysis: see, for example, R. v. Tammie, 2001 BCSC 1219 at paras. 5-10. I would, therefore, reject the submission made on T.R.J.'s behalf that appellate delay should be factored into the calculation of time for s. 11(b) purposes. (2) Waiver of time periods [23] Clear and unequivocal waiver of time periods by the accused are deducted from the total length of the delay to be assessed. Waiver can be explicit or implicit. While consent to a trial date can give rise to an inference of waiver, this will not be so if consent to a date amounts to mere acquiescence in the inevitable. Further, if the mind of the accused or his counsel is not turned to the issue of waiver and is not aware of what his conduct signifies, the conduct does not constitute waiver. It may, however, be taken into account under the factor "actions of the accused": see Morin at paras. 37-38. [24] The Crown does not suggest that T.R.J. waived his right to complain of delay. Rather, the Crown suggests that aspects of T.R.J.'s conduct are appropriately assessed when considering the reasons for the delay, the extent to which the actions of the accused contributed to that delay, and the accused's related claim of prejudice. (3) The reasons for the delay, including: (a) Inherent time requirements of the case [25] These include the complexity of the case, the retention of counsel, preparation by counsel, intake and processing requirements, and whether the case proceeds through a preliminary inquiry. As the number and complexity of these activities increase, so too does the amount of delay that will be characterized as "reasonable." Obviously, a longer time must be allowed for cases that proceed with a preliminary hearing (Morin at paras. 41-43). (b) Actions of the accused [26] Voluntary steps taken by the accused that might have contributed to the length of time required to bring the case to trial are properly considered in assessing the reasons for the delay. Adjournments sought by an accused which do not amount to waiver may be included in this category. In addition, action or non-action by an accused which is inconsistent with the desire for a timely trial is something the court must have regard to (Morin at para. 62). Care must be taken to ensure that the s. 11(b) framework is not applied so as to subvert the principle that there is no legal obligation on an accused to assert the right to be tried within a reasonable period of time. Inaction may, however, be relevant to the assessment of the degree of prejudice an accused has suffered as a consequence of delay (Morin at paras. 62-64). (c) Actions of the Crown [27] Factors to be considered under this subcategory include such things as adjournment requests and delays in disclosure. None of these considerations are applicable in the case at bar. (d) Limits on institutional resources [28] This factor accounts for the period when the parties are ready for trial but the system cannot accommodate them. The bulk of the delay in the case at bar is properly characterized as institutional. [29] In Morin, the court suggested a period of institutional delay between eight to 10 months as a guide to provincial courts. With respect to tolerable institutional delay after a committal for trial, the court affirmed the guideline set out in R. v. Askov, [1990] 2 S.C.R. 1199, reflecting a range of six to eight months. [30] As noted earlier, the court was at pains to emphasize that the guidelines are not limitation periods. They are not intended to be applied in a mechanical fashion. Any exercise of judicial discretion that involves consideration of a broad array of potentially applicable circumstances and the balancing of competing interests is, by definition, not a mechanical exercise. The guidelines must yield to other factors, and the s. 11(b) analysis must be sufficiently flexible to take account of a variety of considerations that might conceivably operate to tip the balance one way or the other (at paras. 51-53). (e) Other reasons for the delay [31] The court in Morin (at para. 59) acknowledged that these categories may not account for all delays. The analysis must take account of all reasons for the delay in an attempt to determine what is truly reasonable for the case before the court. (4) Prejudice to the accused [32] Prejudice is an important factor in determining the length of institutional delay that will be tolerated for constitutional purposes (Morin at para. 64). The prejudice analysis takes its shape from the three interests of the accused that s. 11(b) protects: liberty, security of the person, and the right to make full answer and defence: R. v. Godin, [2009] 2 S.C.R. 3 at para. 30. [33] The accused bears the onus of establishing prejudice as a result of the delay, not from the ordinary stigma associated with the laying of a criminal charge. [34] Prejudice may be inferred, and the inference is more likely to be drawn in cases where there has been a longer delay. In some cases, prejudice will be established by evidence of restrictive bail conditions, stress, damage to reputation, economic loss, and other harms that generally encompass impairment of the ability to make full answer and defence. [35] The Crown can negative, or at least diminish, the weight to be assigned to this factor by demonstrating conduct on the part of the accused, short of waiver, which indicates a lack of diligence in seeking a speedy trial: Morin at para. 64. [36] Where prejudice cannot properly be inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined (Morin at para. 61; Fagan at paras. 17-20). D. Application of the Morin framework to the delay in this case (a) Length of the delay (55 months) [37] In this case, the information was sworn December 19, 2008, and the new trial was set for July 28, 2014. The elapsed time is approximately 67 months. [38] During that period, T.R.J. successfully appealed his conviction, and the Court of Appeal ordered a new trial. I consider the deductible appellate delay period to be about 12 months from the date of sentencing until the order for a new trial. [39] The total delay, therefore, is about 55 months. I have no trouble finding that a delay of 55 months is sufficient to trigger an inquiry under s. 11(b). (b) Waiver of time periods (0 months) [40] The Crown does not suggest that T.R.J. waived his right to a speedy trial at any time during these proceedings, and I find he did not do so. (c) Reasons for the delay (i) Inherent time requirements (eight and one-half months' intake) [41] In my opinion, the intake requirements in this case account for at least eight and a half months of the overall delay. I have come to this estimate in the following way. [42] Within three months after the information was sworn, the accused was arrested, obtained counsel, appeared in court in person and then by an agent, elected trial by judge alone, had a fix date hearing, and confirmed a date for a preliminary inquiry. [43] A second brief intake period occurred after the committal on January 5, 2010 and prior to the scheduling of the first date for trial in the Supreme Court on January 19, 2010. The period of time is so brief, however, that I have not taken it into account in this analysis. [44] A third intake period of approximately three months occurred between T.R.J.'s conviction on April 13, 2012, and July 23, 2012, the date upon which sentencing submissions were received. Two months of this time were taken by the preparation of a pre-sentence report with a Gladue component. It is not unreasonable to assign the remaining portion of this three-month period to counsel preparation in advance of the sentencing proceeding. [45] A fourth intake period of about three and a half months occurred between the Court of Appeal order for a new trial (October 10, 2013) and the date upon which the new trial date was fixed (January 24, 2014). [46] As discussed below, about one month of this fourth intake period can be attributed to the actions of the Crown. [47] I do not consider that the remaining two and a half months is an unreasonable period of time for this fourth intake period. This is particularly so given that one month of this time (from November 15, 2013, to December 16, 2013) was required to facilitate resolution discussions between the Crown and defence. As I have said, counsel for T.R.J. acknowledges that this period of time is not attributable to the actions of the Crown and is properly characterized as part of the normal intake requirements of a case sent back for a retrial following appellate review. [48] This leaves approximately eight and a half months of the overall delay attributable to the intake requirements of the case. [49] The inherent time requirements that contributed to the delay in this case also included a preliminary inquiry and the moderate complexity of this prosecution. [50] I should emphasize that this analysis does not seek to attribute additional time, other than that which can strictly be characterized as intake, to the complexity of the case and the need for counsel preparation. That time has been allocated to institutional delay. Thus, the overall delay characterized as "institutional" in these reasons may be somewhat longer than is actually warranted. To that extent, the attribution of time as reflected in these reasons inures to T.R.J.'s benefit. (ii) Actions of the accused (approximately nine and one-half months) [51] The Crown characterizes as "defence delay" the period from the initially scheduled trial date (March 28, 2011) to the actual trial (January 9, 2012) because the defence applied for and was granted the adjournment that led to this delay. [52] Counsel for T.R.J. reminds me that this factor applies to "actions of the accused which are voluntarily undertaken" (Morin at para. 44). He says the adjournment application was the result of T.R.J.'s previous counsel being appointed to the bench, a development which can in no way be characterized as voluntary. [53] An unanticipated development that occurs proximate to a trial date which necessitates the making of an adjournment application on behalf of an accused (and consequent delay) will not normally be something properly attributable to the actions of the accused. [54] But that is not what happened in this case. T.R.J. was made aware by the beginning of October 2010 that his trial counsel had been appointed to the bench. This development occurred fully six months in advance of the scheduled trial date. T.R.J. was aware of the trial date. Apart from a single call he placed to legal aid sometime before October 4, 2010, T.R.J. took no additional steps for approximately five months to ensure that he was represented and ready to proceed on the first scheduled trial date. His failure to do so was, I find, a significant contributing factor to the adjournment application made on his behalf on March 2, 2011. [55] T.R.J.'s failure to act in a timely fashion once he learned that his trial counsel had been appointed to the bench is inconsistent with a desire on his part for a speedy trial. [56] I recognize that T.R.J. was born, raised, and resides in a small, isolated coastal community. Despite this, I find T.R.J.'s inaction between October 2010 and March 2011 difficult to reconcile with his assertion that he was eager to have this matter tried as soon as possible. [57] His inaction or failure to exercise reasonable diligence on this occasion does not stand alone. On other occasions, which I will address later in these reasons, T.R.J.'s action or non-action does not simply reflect acquiescence in the inevitable, but is inconsistent with the conduct one would expect of an individual desirous of a speedy trial. [58] I remind myself in this regard that there was no legal obligation on T.R.J.'s part to assert the right. Having said that, these considerations, collectively viewed, are also relevant in assessing the kind and degree of prejudice T.R.J. suffered as a consequence of the delay in this matter and the weight that I am prepared to give to his claim of prejudice in the s. 11(b) calculus. (iii) Actions of the Crown (one month) [59] In argument, T.R.J.'s counsel properly conceded there has been only "minimal Crown delay." In my view, the only period of delay attributable to the Crown occurred during the second intake period, after the Court of Appeal ordered a new trial, when the Crown asked for a one-month adjournment to re-evaluate its position in relation to this prosecution. (iv) Other reasons for the delay (judicial reserve - five months) [60] The trial judge reserved judgment at the conclusion of the trial for a period of approximately two months (from February 17, 2012, to April 13, 2012). [61] The trial judge reserved judgment at the conclusion of the submissions on sentencing for a period of approximately three months (from July 23, 2012, to October 19, 2012). [62] The total period of time attributable to judicial reflection and the preparation of reasons for judgment and sentencing is, therefore, about five months. Such a delay is not institutional in the strict sense but must nevertheless be factored into the calculation of the overall period of delay. (v) Institutional delay (31 months) [63] As noted earlier, Crown and defence counsel agree that most of the delay in this case can be characterized as "institutional." I agree and would categorize as institutional delay the following periods: March 13, 2009, fix date for preliminary hearing until conclusion of the preliminary hearing on January 6, 2010 - 10 months January 19, 2010, fix date for the originally scheduled trial date until the first trial date of March 28, 2011 - 14 1/2 months Fix date for the new trial (January 2014) until scheduled date of new trial (July 2014) - six and a half months (Maximum) Total institutional delay--31 months [64] The institutional delay in this case from the fix date for the preliminary hearing until the first scheduled trial date is 24 1/2 months and, therefore, marginally above the uppermost end of the guidelines confirmed in Morin. Having said this, the guidelines are not to be treated as a fixed limitation period. They must yield to other factors and considerations, including the presence or absence of serious prejudice. [65] The institutional delay between the order for a new trial and the scheduled new trial date is, standing alone, well within tolerable limits. From my experience and understanding of the context (Prince Rupert is a single-judge community in Northern British Columbia), it is apparent that efforts were made to accommodate the retrial of this matter as quickly as reasonably possible. I would say the same about the rescheduling of the trial following the successful adjournment application in March 2011. I note that similar contextual comments, also in relation to Prince Rupert, were taken into account in R. v. Stewart, 2000 BCCA 399 at para. 79. [66] I need not resolve in this case whether the constitutional clock is "rewound" for all purposes upon the ordering of a new trial. I am content to proceed on the footing that it is appropriate to consider, in a cumulative way, the entirety of the 31 months of institutional delay. Having said this, the guidelines developed in Askov and Morin respecting institutional delay were not fashioned in contemplation of multiple proceedings. Further, the guidelines are not static and must be expanded to encompass situations where a retrial is required. (d) Prejudice to the accused [67] T.R.J. submits that his liberty interest has been seriously impaired by the delay in this case and the restrictive conditions of bail to which he has been subject. He further asserts that his security interest has been affected because of ongoing stress, damage to his reputation in the community, family tension, and marital discord that has been caused by the delay in this matter. His affidavit does not explain how the length of the delay, as opposed to the bare fact of the sexual assault-related charges in relation to his granddaughter, has damaged his security interests. [68] In considering the nature and degree of the prejudice he has suffered as a consequence of the delay, T.R.J. also asks me to take account of the prejudice to his liberty and security interests that accrued (1) following his initial arrest but prior to the swearing of the information, and (2) during the time his conviction was under appeal. [69] Finally, counsel for T.R.J. submits that the accused's fair trial interests may prove to be compromised by the delay if the complainant purports on the retrial to have an independent and perhaps fuller recollection of events than she did at the time of the first trial. [70] I will deal with each of these points in turn. [71] T.R.J.'s contention that the prejudice analysis must take account of the impairment of his liberty and security interests prior to the swearing of the information and throughout the appellate proceedings would appear to me to run afoul of the principles set out in Kalanj and Potvin. [72] Despite my inclinations on this point, in the absence of full argument, I am disinclined to engage in a lengthy analysis of the issue. Without deciding the point, I am prepared, in this case, to proceed on a footing most favourable to T.R.J.: that the period post-arrest and release on bail but prior to the swearing of the information, as well as the period in which appellate proceedings were ongoing, may properly be taken into account, not in the calculation of the overall period of delay, but for the limited purposes of assessing his overall claim of prejudice. [73] I accept that T.R.J. has experienced some actual prejudice to his liberty interest attributable to the delay. On the basis of the material before me on this application, I am not, however, prepared to conclude that T.R.J. has suffered serious prejudice to his liberty and security interests attributable to the delay in having this matter brought to a final conclusion. [74] The most serious intrusion upon T.R.J.'s liberty interests occurred as a consequence of the restrictive bail conditions imposed following his initial arrest but prior to the swearing of the information. While I have taken this into account, I note that these inappropriately restrictive conditions flowed from poor drafting of the terms of the initial undertaking, not from the delay itself. [75] I would characterize the release terms to which T.R.J. was subject after January 15, 2009 as both necessary and minimally intrusive on his liberty interest. With the exception of the complainant, T.R.J. was not prohibited by the conditions of his release from visiting with any member of his family, including his grandchildren, provided that a parent, guardian, or other adult was present. There is no evidence that T.R.J. was subject to an ongoing in-person reporting condition that would impose upon him a burden given his place of residence. To the extent that the conditions governing T.R.J.'s release were made somewhat more onerous during the appellate proceedings, they were made so because T.R.J. violated the most important term of his undertaking when he entered the complainant's home at a time when she might reasonably be expected to be present. In any event, I am not satisfied on the evidence before me that the bail variation that occurred following this incident, which added a condition that T.R.J. not attend Prince Rupert without the prior approval of his bail supervisor, constituted a significant restraint on T.R.J.'s liberty which impaired his lifestyle. Significantly, there is no evidence before me that T.R.J.'s bail supervisor denied any request made by him to attend Prince Rupert during the currency of this condition. [76] On the basis of T.R.J.'s affidavit, I accept that he has experienced some impairment of his security interests attributable to the charges. But again, I am not prepared to find, on the basis of the material before me, that T.R.J. has suffered significant impairment of his security interests which can properly be attributable to the delay. The stressors he identifies in his affidavit are the inevitable product of the nature of the charge laid. [77] As for inferred prejudice, I am unwilling to infer more than nominal prejudice as a result of the passage of time. T.R.J.'s conduct throughout shows little concern for the pace of the litigation. [78] Importantly, there are a number of considerations in this case that negative or work to seriously undermine T.R.J.'s claim of actual prejudice and the extent to which the court can properly infer prejudice. [79] First, T.R.J. did virtually nothing for a period of about five months after learning that his trial counsel was appointed to the bench to ensure that alternative representation was arranged for him to permit the trial to proceed on the originally scheduled trial date. One would expect that a person suffering from the sort of prejudice T.R.J. now asserts would have taken that step. [80] Second, T.R.J. made no application to vary any condition of bail he felt was unnecessarily onerous. If T.R.J. was being seriously prejudiced by the delay and the allegedly onerous conditions of bail, one would have expected him to have made some effort to vary the bail conditions: R. v. Sharma, [1992] 1 S.C.R. 814 at para. 31. He did not do so. [81] Third, when the case was adjourned on March 2, 2011, the court suggested to counsel that when the matter was being spoken to before the manager of Supreme Court scheduling in Prince Rupert, that efforts be made to determine whether it could be brought back before the court for trial sooner rather than later. Indeed, it is apparent that on that scheduling appearance, earlier trial dates than January 9, 2012 were, in fact, offered. As noted earlier, dates were offered in September, October, and November 2011. I have no information as to why these earlier dates could not be accommodated. On this issue, it must be borne in mind that T.R.J. bears the legal burden of demonstrating on a balance of probabilities that the delay was unreasonable. [82] Finally, as T.R.J. contends that the prejudice analysis must take account of the time during which his conviction was under appeal, it is only right to point out that he did not seek to abridge appellate time periods to the end of having the matter heard earlier, and only filed his factum after the deadline for doing so had expired and a compliance hearing had been set. [83] In terms of potential prejudice to T.R.J.'s fair trial interests, it has been submitted on his behalf that the complainant may, on the retrial, profess to have an independent or enhanced understanding or recall of the events giving rise to the charge that she did not have on the initial trial. T.R.J.'s counsel submits that should this be the case, it will be difficult to cross-examine the complainant on the substance of the allegations. I do not accept that this would necessarily be so. Indeed, such an enhanced recollection might be a fruitful source of cross-examination. But more to the point, the submission made on T.R.J.'s behalf has a distinctly speculative quality to it. [84] I appreciate that in Godin the court cautioned that it may be difficult in some cases to assess the risk of prejudice to an accused's ability to make full answer and defence, and that care should be taken before a judicial pronouncement is made that a delay has occasioned no potential prejudice to an accused's fair trial interests. [85] But in this case, the pivotal evidence is a video-recorded statement by the complainant about the alleged offence. The evidence has a static and enduring quality to it akin to a case involving wiretap evidence: see R. v. Bains, 2010 BCCA 178 at para. 64. It is most unlikely that the case for the Crown has improved or materially changed since the first trial or that T.R.J.'s ability to make full answer and defence has been affected at all by the delay. As a consequence, I do not consider that the material before me on this application demonstrates a significant risk that T.R.J.'s fair trial interests have been prejudiced by the delay. [86] Finally, I have considered the evidence that before T.R.J.'s counsel was appointed to the bench, he requested earlier trial dates, to no avail. Yet the dates counsel requested at that time were only six weeks earlier than the scheduled trial dates. Even if successful, the request would have had little impact on the period of institutional delay. I am not convinced that this evidence of a single request for a slightly earlier trial date supports T.R.J.'s contention that he has suffered serious prejudice as a consequence of the delay. Other than this request, I find scant support for T.R.J.'s stated desire to deal with the matter as quickly as possible. E. Conclusion [87] In the end, a stay of proceedings for unreasonable delay requires a case-specific and delicate balancing of all of the factors addressed herein. While the institutional delay tends towards the outer limits of what constitutes a reasonable delay, I must consider the period of delay in light of all the other considerations. [88] In particular, I am not satisfied that T.R.J. has suffered significant prejudice as a consequence of the delay, at least some of which is attributable to him. In light of this finding, I would not be inclined to stay proceedings even if the passage of time attributable to the successful adjournment application, or a portion of it, is more properly characterized as "inherent delay" as opposed to delay attributable to the actions of the accused. [89] In addition, the period of delay must take into account that a second trial has been found to be required in this case. [90] Finally, the offence with which T.R.J. is charged is very serious. The allegation concerns the sexual abuse of a very young girl in respect of whom T.R.J. was in a position of trust. The societal interest in a trial of this matter on its merits is very high. [91] Balancing the applicable considerations as best I can, I am not persuaded that T.R.J. has discharged his onus of establishing a violation of his right to be tried within a reasonable time. [92] Accordingly, the application for a stay of proceedings is dismissed. "FITCH J."