COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Farewell,

2008
          BCCA 9

Date: 20080114

Docket: CA034769

Between:

Regina

Respondent

And

Robert
    Kelly Farewell

Appellant

Before:

The
          Honourable Mr. Justice Smith

The
          Honourable Mr. Justice Thackray

The
          Honourable Mr. Justice Lowry

D.M.
          Rosenberg and
K. Gounden

Counsel for the Appellant

P.W.
          Hogg

Counsel for the Respondent (Crown)

Place
          and Date of Hearing:

Vancouver, British Columbia

16 October 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

14 January 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Thackray

Concurred
          in by:

The
          Honourable Mr. Justice Smith

The
          Honourable Mr. Justice Lowry

Reasons
    for Judgment of the Honourable Mr. Justice Thackray:

[1]

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

[2]

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

[3]

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

[4]

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

Issues on Appeal

[5]

The appellant sets out the following grounds of appeal:

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

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

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

Appeal on the
Voir Dire

1.         Background

[6]

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

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

[7]

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

[8]

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

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

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

[9]

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

[10]

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

[11]

The
Criminal Code
provides as follows:

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

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

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

[12]

The judge held:

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

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

[13]

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

[14]

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

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

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

[15]

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

[16]

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

2.         Standard of review

[17]

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

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

At
    paragraph 44 of
Buhay
Arbour J. added:

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

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

[18]

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

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

[19]

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

3.         Section 24(2): Background

[20]

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

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

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

[21]

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

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

[22]

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

4.         Section 24(2): Legal Principles

[23]

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

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

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

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

[24]

The principal considerations in this part of the
Collins

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

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

[25]

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

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

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

[26]

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

(ii)        The seriousness of the police conduct

[27]

Madam Justice Humphries dealt with this factor at significant length:

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

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

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

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

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

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

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

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

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

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

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

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

[28]

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

[29]

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

[30]

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

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

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

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

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

[31]

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

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

[32]

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

[33]

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

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

[34]

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

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

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

[35]

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

[36]

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

[37]

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

Buhay:

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

Collins:

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

tend to render the
Charter

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

[38]

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

[39]

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

[40]

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

[41]

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

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

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

[42]

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

[43]

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

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

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

[44]

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

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

[45]

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

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

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

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

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

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

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

[46]

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

[47]

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

[70]

Lamer J. stressed at p. 281 in
Collins

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

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

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

[48]

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

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

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

[49]

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

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

[50]

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

[51]

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

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

[52]

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

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

[53]

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

[54]

I would not accede to this ground of appeal.

Appeal on the s. 11(b) Application

[55]

The
Charter
reads:

11.
    Any person charged with an offence has the right

(b)
    to be tried within a reasonable time

[56]

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

1.         Brief chronology of events

[57]

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

[58]

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

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

[59]

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

2.         Reasons for judgment

[60]

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

[61]

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

[62]

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

[63]

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

[64]

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

[65]

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

[66]

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

[67]

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

[68]

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

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

[69]

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

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

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

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

[70]

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

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

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

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

[71]

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

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

[72]

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

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

voir dire
be done separately.

Result

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

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

3.         Discussio
n

[73]

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

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

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

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

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

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

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

Madam
    Justice Humphries responded:

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

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

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

[74]

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

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

[75]

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

[76]

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

[77]

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

(i)         Length of delay

[78]

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

[79]

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

applications.

[80]

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

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

[81]

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

[82]

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

[83]

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

[84]

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

[85]

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

[86]

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

[87]

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

[88]

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

[89]

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

(ii)        Waivers of time periods

[90]

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

(iii)       Reasons for delay

[91]

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

A.         Delay inherent to the proceedings

[92]

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

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

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

at
    para. 13.

B.         Delay attributable to the Crown

[93]

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

C.        Delay attributable to the accused

[94]

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

D.        Delay inherent to the system

[95]

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

E.         Other sources of delay

[96]

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

(v)        Prejudice to the accused

[97]

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

[98]

However, in
Morin
,

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

[99]

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

[100]

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

4.         Findings of fact not supported by the evidence

[101]

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

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

[102]

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

[103]

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

[104]

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

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

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

[105]

I would not accede to this ground of appeal.

Conclusion

[106]

I would dismiss the appeal.

The Honourable
    Mr. Justice Thackray

I AGREE:

The Honourable Mr. Justice Smith

I AGREE:

The
    Honourable Mr. Justice Lowry


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Bakker
          v. Nahanee,

2008
          BCCA 12

Date: 20080115

Docket: CA035535

Between:

Randy
    Bakker

Appellant

(
Plaintiff
)

And

Harry
    Jacob Nahanee, an infant, by his Litigation Guardian

The
    Public Guardian and Trustee, Roselle Ang,

General
    Motors Acceptance Corporation

Respondents

(
Defendants
)

Before:

The
          Honourable Madam Justice Prowse

(In
          Chambers)

J.
          Cameron

Counsel for the Appellant

D.J.
          Chapman

Counsel for the Respondents

Place
          and Date of Hearing:

Vancouver, British Columbia

January 9, 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

January 15, 2008

Reasons
    for Judgment of the Honourable Madam Justice Prowse:

[1]

Mr. Bakker is applying for leave to appeal the decision of a chambers
    judge, made October 19, 2007, dismissing his claim against two of the defendants,
    Roselle Ang and General Motors Acceptance Corporation (GMAC), with costs
    to those defendants payable forthwith.  Mr. Bakker submits that the chambers
    judge erred in making the order of costs prior to a determination of the liability
    of Mr. Nahanee, and in making the costs payable forthwith.  He submits that
    any order for costs should have awaited the outcome of the trial against Mr.
    Nahanee, which was then set to proceed in November 2007.

[2]

By way of brief background, Mr. Bakker was injured in a motor vehicle
    accident in May 2002 when the vehicle he was driving was struck by a stolen
    vehicle operated by Mr. Nahanee, who was then a juvenile.  Mr. Bakker commenced
    the underlying action on April 19, 2004 claiming damages against Mr. Nahanee
    for negligent operation of the vehicle, and against GMAC as owner/lessor and
    Ms. Ang as lessee of the vehicle for failure to ensure the vehicle was mechanically
    sound.

[3]

The defendant Nahanee filed an appearance and a statement of defence.
    The other defendants took additional steps in their defence including discovery
    of documents, requests for particulars and an examination for discovery of
    Mr. Bakker.  This eventually led to their application under Rule 18A for dismissal
    of the action against them.  Prior to the application for dismissal, Mr. Bakkers
    counsel examined Ms. Ang for discovery, following which he agreed that the
    action against Ms. Ang and GMAC should be dismissed.

[4]

At the Rule 18A application, the only issue was costs.  Counsel for
    Mr. Bakker took the position that the issue of costs of Ms. Ang and GMAC should
    be determined at the conclusion of the trial when he anticipated obtaining
    judgment against Mr. Nahanee.  In that event, he proposed to request that
    the costs of Ms. Ang and GMAC be paid by Mr. Nahanee pursuant to Rule 57(18)
    of the
Rules of Court
, B.C. Reg. 221/90 by way of either a
Sanderson
or
Bullock
order.  Counsel for Ms. Ang and GMAC sought costs forthwith.

[5]

The chambers judge noted, correctly, that he could not make a
Bullock
or
Sanderson
order at the time of the Rule 18A application, since there
    was no unsuccessful defendant who could be held liable to pay costs.  He made
    a point of stating that nothing in his reasons should be taken as precluding
    Mr. Bakker from seeking contribution for costs if and when Mr. Nahanee was
    found liable.  In the result, he concluded that it was appropriate in the
    circumstances to order Mr. Bakker to pay the costs of the successful defendants
    forthwith.

[6]

The approach to an application for leave to appeal an order of costs
    only is set forth  by Madam Justice Rowles in
Neufeld v. Foster
,
    2000 BCCA 485 (in Chambers), at paras. 14 and 15:

Under s. 7(2)(b) of the
Court of Appeal Act
,
    R.S.B.C. 1996, c. 77, leave is required to appeal an order of costs only.
    As an award of costs generally involves the exercise of discretion, the award
    is subject to limited appellant review.  Generally, leave is not granted unless
    a question of principle is involved:
Raffele v. Janzen,
[1989] B.C.J.
    No. 1733 (B.C.C.A.).

The factors that are generally taken into account on
    an application for leave to appeal are the importance of the proposed appeal
    generally and to the parties, the utility of the proposed appeal in the circumstances
    of the parties, and the prospects of success of the proposed appeal.

[7]

In my view, this is a fact driven appeal which does not raise any question
    of general principle or any issue of general importance to the practice.
    I simply do not see this as a precedent-setting case.

[8]

I accept that the appeal is of significance to Mr. Bakker who has been
    ordered to pay costs of approximately $12,000 at a time when he has not yet
    received compensation for his injuries.  At the time of the hearing, all parties
    and the chambers judge anticipated that the trial against Mr. Nahanee would
    be proceeding in approximately one months time.  For reasons which are not
    entirely clear, the trial was adjourned and is now not expected to proceed
    until 2009.  It is possible, of course, that it may never proceed and that
    the matter may settle.

[9]

I am also of the view that the appeal has little prospect of success.
    This was essentially a discretionary order.  It was open to the chambers judge
    to exercise his discretion as he did and I fail to see any significant issue
    of principal raised by these facts which would merit review by this Court.
    I note, parenthetically, that Mr. Bakker has not yet paid the costs and it
    may be that the defendants will not insist on payment forthwith although they
    are entitled to do so.

[10]

In the result, I am not persuaded that this is an appropriate case
    in which to grant leave to appeal and I would dismiss Mr. Bakkers application.

The Honourable Madam Justice Prowse