Allright boys and girls listen up.
Last week the cop catcher went to traffic court (again). I won (shocker- I always seem to). I am happy to say that this is the first time in 16 years that I am now without a ticket before the courts. (I am 30, I started racking up tickets at the ripe age of 14 on a bicycle). For the record I have never lost my license or had to pay more than 6 points in a year. I usually win.
This ticket was a gimmie (48K in a playground zone on the first day of the riding year in 2006) because the cop never showed.
I was ready to rock. I had two precedents set out to beat him.
If you have an old ticket and you want to beat it here is how:
1) File the constitutional challenge when you get the court date.
2) Go to the Provincial Court website and get these two judgements. Print and take with you.
3) Go on the day they set to hear the challenge.
4) Use these 2 precedents and argue that your defense has been irreparably damaged by the excessive delay.
I recommend that you had a witness that is now dead or moved away.
that the pictures you took have been lost between the offence and now during two moves because the date was so long coming. Your memory is a fading as well due to time/ age/ medical ailment.
The witness and the pics would show clearly that the sign/ device was vandalized and unreadable.
Therefore through no fault of your own your defense is weak and prejudiced. Ask that it be tossed.
If you note in the cases below they use the timeframe of about 18 months. This is where my ticket was so I looked no further. These cases were tossed without any proof of damage to the defence. It was inferred by the judge damage was done by the delay. You can bring it lower by PROVING your defence is damaged.
I did see cases that were debated in the 10 month range but were allowed (not tossed out) because the defendant entered no evidence of prejudice. Search these cases out they may help you or show you what not to say.
The onus is on you to prove that the delay (whatever length that it is) has cause you an inability to defend yourself effectively. I will leave how you do this up to you (see above for examples).
The possibility of damage to an individual through a misjustice (damaged defence) is balanced against society's interests in the seriousness of the case. The courts (where you will be with a constitutional challenge- not in the typical BS traffic court goat show) take a serious view of people's rights (unlike traffic court)
Really a traffic ticket is fuck all so it is more likely to be tossed then say a dangerous driving causing death charge (get a lawyer- beyond me).
So there you have it guys- fight strong, and post up who can get a ticket tossed at what age.
I'll buy a six pack for whoever can be first to get it below eight months. Anyone who gets it tossed post, so their precedent can be used. Over time we can hopefully drive the precedent down to a low enough age that most tickets can be tossed.
Remember that a precedent can be used to strong arm a judge into making a decision you want if your facts are the same as an already decided case you are presenting to him.
So everyone dispute their tickets, and get out there and fight the revenue BS non safety system.
I'm sure the lawyers can add more!
Good Luck! Have some sporting fun!
Regina v. Robinson
2001 BCPC 0038
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
GEORGINA BARBARA ROBINSON
HER WORSHIP M. KOBILJSKI
Appearing for the Crown:
Appearing for Georgina Barbara Robinson:
Place of Hearing:
North Vancouver, B.C.
Date of Hearing:
October 19, 2000
Date of Judgment:
February 23, 2001
 The defendant, Georgian Barbara Robinson, has been charged with the offence of "emerging vehicle failing to yield", contrary to Section 176 (2) of the Motor Vehicle Act, under violation ticket number AE16254534. The matter came before me on October 19, 2000, at which point the defendant's son, Mr. Ed Robinson, acting as an agent for Ms. Robinson, entered a not guilty plea on her behalf. Mr. Robinson applied for a judicial stay of proceedings pursuant to Section 24 (1) of the Canadian Charter of Rights and Freedoms, based on a violation of the defendant's right to be tried within a reasonable time under Section 11 (b) of the Charter.
 The starting point of every delay argument analysis is a chronology of events. The chronology of events in this case is as follows:
May 19, 1999 The alleged offence took place and the violation ticket #AE16254534 was issued and served upon the defendant.
June 07, 1999 The defendant filed a Notice of Dispute.
September, 2000 The first Notice of Hearing was sent to the defendant advising her of the trial date of October 10, 2000.
October 06, 2000 The defendant filed a Notice of Charter Challenge. The trial date was adjourned from October 10, 2000 to October 19, 2000 to accommodate procedural requirements under the Constitutional Question Act.
October 19, 2000 The Charter argument was heard and the matter was adjourned for consideration. Anticipating that it would not take more than a month for the transcript of the hearing to arrive, I instructed the Court Services personnel to set a continuation date after January, 2001 to allow me two months for consideration.
It is important to note at this point that Sitting Justices of the Peace are assigned only one chamber day per month. That amount of out-of-court time does not correspond to the burdensome work requirements, and inevitably results in the delay of judgment rendering.
The transcript of the Robinson hearing was delayed for reasons not known to me. It arrived in the second half of December, 2000. The continuation date was set for February 23, 2001 to provide me with at least two chamber days for consideration. Needless to say, two days were not remotely close to the amount of time necessary for consideration of the Robinson case. I devoted hours and hours of my own time to the resolution of the Robinson matter, in order to avoid any further delays.
February 23, 2001 The continuation of the hearing and the conclusion of the case.
 The questions for the court to answer are the following:
What is the total length of delay in hearing of this matter?
Could the prejudice, resulting from the delay, be inferred from the length of the delay, without any evidence of the prejudice being led by the defence?
If the answer to the second question is affirmative, then the last question to be answered is:
3. Is the delay in the Robinson case so unreasonable as to warrant a stay of proceedings?
THE FIRST ISSUE: THE TOTAL LENGTH OF THE DELAY
The Argument of the Defence
 In dealing with the issue of the total length of the delay, Mr. Robinson proposes two alternative approaches:
According to the first approach, the delay should be measured from the date of the issuance of the ticket, May 19, 1999, until the trial date, October 19, 2000, in which case the total delay would amount to 17 months.
According to the second approach, the delay should be measured from the date when the Notice of Dispute was filed, June 07, 1999, until the trial date, October 19, 2000, in which case the total delay would amount to 16 1/2 months.
 Mr. Robinson did not support either of his positions with any particular case law.
The Argument of the Prosecution
 The counsel for the prosecution, Mr. Pike, argues that the total length of the delay should be calculated from the date of the dispute of the ticket, June 07, 1999, to the initial trial date of October 10, 2000. In that case, the total delay would amount to approximately 16 months.
 Mr. Pike did not submit any case law to support his approach.
 In dealing with the issue of total length of the delay, I considered three cases: R. v. Morin, the decision of the S.C.C.,  71 C.C.C. (3d) 1, R. v. Fischer (1997), B.C.J. No. 2421 BC Prov. Crt. (QL), the decision of my colleague, Sitting Justice of the Peace Makhdoom and R. v. Stoyanov, unreported decision of my colleague, Sitting Justice of the Peace Hayes from December 9, 2000, Burnaby Traffic Court Registry, VT SC04855849.
 In R. v. Morin, supra, Justice Sopinka speaking on the issue of the length of the delay, stated the following at pg. 14 of the judgment:
"1. Length of the delay
As I have indicated, this factor requires the court to examine the period from the charge to the end of the trial. "Charge" means the date on which an information is sworn or an indictment is preferred: see Kalanj, supra at p. 469."
 In R. v. Fischer, supra, the concept expressed in R. v. Morin was applied to the same form of a charge as the one that we are dealing with today - a violation ticket. Commenting on the position of the prosecution that the relevant point in time for the assessment of the length of the delay is the point of the service of the ticket, Sitting Justice of the Peace Makhdoom stated at paragraph 20 of his judgment:
"I respectfully disagree with the Crown's approach and follow Morin, supra, and R. v. Bennet (1991), 64 C.C.C. (3d) 449 (Ont. C.A.). The court must examine the period "from the charge to the end of the trial." Justice Sopinka defines "charge" as "date on which an information is sworn or an indictment is preferred..." Morin, p. 14. In Bennet, supra, Madame Justice Arbour emphasized the totality of time from charge to disposition. Her opinion was affirmed by the Supreme Court of Canada in  2 S.C.R. 168, (1992), 74 C.C.C. (3d), 384 (S.C.C.). She writes:
It is easy to lose sight of the importance of the total period of delay, particularly when engaged in an examination of the causes for various components of total delay. A case may take too long to reach preliminary inquiry, but then be tried very expeditiously after committal, or vice versa. Ultimately, it is reasonableness of the total period of time that has to be assessed, in the light of the reasons that explain its constituent parts."
 R. v. Stoyanov is yet another decision that deals with the issue of unreasonable delay in dealing with the charge layed in a form of a violation ticket. Deciding on the criteria for the determination of the length of the delay, Sitting Justice of the Peace Hayes stated the following at pg. 10:
"The Supreme Court of Canada reaffirmed this position in R. v. MacDougall (1998) 3 S.C.J. No. 74 S.C.C. (QL) when they extended the applicability of S. 11 (b) from the point where a person is 'charged' with an offence, to the handing down of sentence after a finding of guilt has been entered.
I will adopt the interpretation of my colleagues Makhdoom SJP in R. v. Fischer (1997, B.C.J. No. 2421 BC Prov. Crt. QL) and Mayner SJP in R. v. Roland-Romaine Fischer (unreported, October 28, 1999 Richmond Registry VT#SC01547431, BC Prov. Crt.). Both rulings are consistent with the position adopted by the Supreme Court of Canada that the starting point of the timeline to be considered in delay arguments must be the signing of the violation ticket."
 All the stated cases support the proposition that the total length of delay when dealing with the charge laid in a form of a violation ticket must be calculated from the date the ticket was completed to the date the trial was concluded and the decision was rendered.
 In the case before the court, the date of the completion of the ticket was May 19, 1999. The date of the decision is hopefully going to be today's date, February 23, 2001. Therefore the total length of delay to be considered is 21 months.
THE SECOND ISSUE: INFERENCE OF PREJUDICE TO THE DEFENDANT
The Argument of the Defence
 One of the issues for the court to consider when dealing with the question of unreasonable delay is prejudice to the defendant caused by the delay. The agent for the defendant, Mr. Robinson, argues that the prejudice does not have to be proven by the defence, but it could be inferred from the length of the delay.
 In support of his position, Mr. Robinson relies upon the decision of R. v. Morin, supra. In that case Justice Sopinka, dealing with the issue of prejudice, indicated the following at pg. 23:
...in an individual case prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such inference will be drawn."
 Mr. Robinson further argues that the delay in this case is strictly institutional, caused by the inability of the court system to accommodate the proceedings. He relies upon R. v. Morin, supra, in determining the guideline for institutional delay:
"... it is appropriate for this court to suggest a period of institutional delay of between eight to 10 months as a guide to Provincial Courts." (R. v. Morin, supra, at pg. 21)
 It is Mr. Robinson's position that the administrative guideline set out in the Morin case, a criminal case in nature, is equally applicable to the quasi-criminal cases such as the matter before the court, regardless of their relative simplicity and the lack of serious consequences in terms of sanctions for the defendant. In support of this position, Mr. Robinson submitted the case of R. v. Fisher, supra. The case deals with the offence of speeding, a quasi-criminal offence, where the charge is laid in the form of a violation ticket - the situation that corresponds to the nature and the form of the charge before the court. Commenting on the quasi-criminal nature of the offence and the lack of criminal sanction, Sitting Justice of the Peace Makhdoom states at pg. 6 of the Fisher case:
"... the counsel for the Crown, Mr. Wilkins, says that since there are no criminal sanctions possible with respect to this traffic offence, that "even longer delay than that's proposed as the guideline of eight to 10 months can be acceptable in the photo-radar context" (Transcript, p. 9) I respectfully disagree."
 In addition to the Fisher case, the defence submitted the cases of R. v. Pronovost,  B.C.J. No. 3123 D.R.S. 95-11659, Kelowna Registry No. AC44173293 and R. v. Jette,  B.C.J. No. 1483, Burnaby Registry No. SC02358811. Both cases deal with the quasi-criminal charges layed in a form of a violation ticket. The cases were submitted in support of the proposition of inference of prejudice based on the length of the delay.
 In the case of R. v. Pronovost, supra, institutional delay of 12 months has been found unreasonable and judicial stay of proceedings was granted, in spite of the fact that there had been no evidence of actual prejudice. The only prejudice that was referred to was inferred prejudice:
"There's no evidence to suggest any particular prejudice to her (Ms. Pronovost) over and above what would be the usual prejudice of a person charged with an offence." (R. v. Pronovost, supra, at pg. 2.)
 In the case of R. v. Jette, supra, institutional delay of 11 months and one week was found to be unreasonable without any reference to prejudice.
 Comparing the institutional delay of 17 months in the Robinson case to the administrative guideline from Morin and the institutional delay in the cases of Pronovost and Jette, Mr. Robinson concludes that the length of institutional delay in the Robinson case exceeds the period of eight to 10 months suggested in Morin to the point that it calls for an inference of prejudice.
The Argument of the Prosecution
 In discussing the issue of prejudice, Mr. Pike pointed out that according to R. v. Morin, supra, and B.C. Court of Appeal decision of R. v. Fagan,  B.C.J. No. 2886, D.R.S. 99-06664, Vancouver Registry No. CA023968, the defendant has the obligation to provide evidence of prejudice independent of passage of time in order for the delay argument to be successful. To support his position, Mr. Pike quoted from Fagan as follows:
"Reported case law since Morin makes it clear that successful section 11 (b) challenges are now rare and highly unlikely to succeed, unless the accused demonstrates serious prejudice." (para 19)
"The court held that the most important aspect of the decision in Morin was placing the onus back on the accused and treating prejudice as an issue of paramount importance." (para 13)
 Mr. Pike further argues that when it comes to the prejudice that appears in a form of inability to make full answer and defence due to the loss of witnesses' memory, that type of prejudice cannot be inferred, but has to be proven by the defendant. In support of his argument, Mr. Pike quoted from R. v. Dresher, the decision of B.C. Supreme Court,  B.C.J. No. 1430, New Westminster Registry No. X052957, which states at para 27:
"In my view, a mere observation that witnesses' memories might be effected is not sufficient to establish prejudice to the accused in the circumstances."
 Commenting on the cases of R. v. Pronovost, R. v. Jette and R. v. Fisher, supra, Mr. Pike made the following points:
R. v. Pronovost is the case that was decided prior to R. v. Fagan, supra, and as such is no longer applicable to the matter at hand;
R. v. Jette was decided without consideration of R. v. Fagan, and therefore it should not be followed;
R. v. Fisher is the case where the prejudice was proven by the defendant, and therefore it should be distinguished from the case before this court.
 In conclusion, Mr. Pike submitted that since the defendant did not provide any evidence of prejudice as required by R. v. Fagan, supra, his application under Section 11 (b) of the Charter should be dismissed.
The Response of the Defence
 Responding to Mr. Pike's argument on the issue of inference of prejudice, Mr. Robinson pointed out that the circumstances in both the Fagan and Drescher cases are distinguishable from the matter at hand.
 According to Mr. Robinson, in the Fagan case the court has found that the defendant waived his right to have a trial within a reasonable time. The waiver was partially explicit and partially implied. That situation led the court to conclude that the defendant did not want a speedy trial. In support of his position Mr. Robinson submitted the following:
"In considering several factors the trial judge, in my respectful view, erred in failing to find that almost all of the period of delay after committal for trial was the subject of an express waiver by the accused and the balance was the subject of an implied waiver. ... In this case, the only reasonable inference from the primary fact is, to again quote from Sopinka J. in Morin at p. 24 (C.C.C.) that this accused was "...in the majority group who do not want an early trial..." (R. v. Fagan, supra, para. 31)
 Mr. Robinson further argues that the fact that the defendant did not want a speedy trial led the court in R. v. Fagan to decide that under those particular circumstances the prejudice to the defendant could not have been inferred, but it had to be proven by the defendant in order for the delay argument to be successful. He concludes that, since the circumstances of the Fagan case differ from the circumstances of the Robinson case, in the sense that in the Robinson case there was nothing to indicate that the defendant did not want a speedy trial, the Fagan case should not be applied to the matter at hand. Hence, Ms. Robinson should not be required to provide evidence of prejudice; prejudice can be inferred from the circumstances of the case, as already determined by R. v. Morin.
 Mr. Robinson applied similar reasoning to the Drescher case indicating that in the Drescher case the court found that the defendant has waived his right to a speedy trial and therefore was required to provide evidence of prejudice in order to succeed in his delay argument. Regardless of the issue of waiver, it was the court's opinion that the delay of 12 months in the Drescher case was not sufficient to raise an inference of prejudice. Mr. Robinson concluded that in the Robinson case the defendant did not waive her right to a speedy trial, and therefore she should not be required to prove prejudice. He also pointed out that the delay period in the Robinson case is much longer than in the Drescher case, which renders the Drescher case as not applicable.
The Response of the Prosecution to the Response of the Defence
 The counsel for the prosecution, Mr. Pike, had a brief comment with respect to the Dresher case. He pointed out that the total period of delay that was considered in the Dresher case was 18 months: 12 months of institutional delay and six months of the delay attributed to the prosecution. It was the total delay period of 18 months that the court dealt with, when it indicated in para. 27 of the decision:
"... And the total delay period itself does not give rise to an inference of any prejudice, let alone prejudice of the substantial nature required to warrant a stay." (R. v. Dresher, supra)
 Mr. Pike further stated that the Dresher case involved a charge of assault, which is much more serious and carries much more stigma than the charge before this court. He argued that if 18 months of delay in an assault case did not give rise to the inference of prejudice, in spite of it's seriousness and the stigma involved, there would be no reason for the same amount of delay to raise the issue of prejudice with respect to a traffic matter.
 To strengthen his point, Mr. Pike submitted two traffic cases, R. v. Byers and R. v. Tang, where the delays of 18 and 19 months were upheld as reasonable in the absence of the disputant proving prejudice.
 In dealing with the issue of inference of prejudice, I considered all of the cases submitted by both parties, and I found that the key cases that I need to address in this decision are R. v. Morin, R. v. Fagan and R. v. Dresher, supra.
 R. v. Fagan is the case that deals with the charge of possession of cocaine for the purpose of trafficking. The total length of delay in that case, from the date of the charge to the date of the trial was 30 months.
 The defence presented some evidence to show that, as a result of the delay, the defendant's right to a fair trial had been violated: one of his witnesses had died three months prior to the trial date.
 The defendant did not provide any evidence of violation of the other two rights protected by Section 11 (b) of the Charter: the right to liberty and the right to security of a person.
 Based on the evidence presented, the trial court had found that the defendant did not suffer any significant measureable prejudice. Still, balancing all the factors relevant to the issue of delay, the trial court had formed an opinion that the delay in the Fagan case was unreasonable. As a result the proceedings were stayed.
 The Court of Appeal upheld the conclusion of the trial court with respect to the issue of prejudice. At the same time it ruled that the trial judge failed to find that the defendant waived his right to a speedy trial. It stated at paragraph 31 the following:
"... almost all of the period of delay after committal for trial was the subject of an express waiver by the accused and the balance was the subject of an implied waiver.
... overall course of conduct of the accused... conveyed the message that he was content, if not desirous, of putting the trial off as long as possible." (R. v. Fagan, supra)
 The Court of Appeal concluded that in failing to consider the defendant's contentment with the delay, the trial judge departed from the principles set out in R. v. Morin. On those grounds the appeal was allowed and the case remitted for trial.
 The case before this court differs factually from the Fagan case. There was nothing presented in the case to indicate the defendant's waiver, either explicit or implied. Therefore, I do not find the Fagan case applicable to the Robinson case.
 Before I address the facts in the Drescher case, I would like to make a few further comments on legal perspectives expressed in R. v. Fagan.
 One of the questions that was dealt with in R. v. Fagan was the question of burden of proof in dealing with the delay argument. In answering that question, Justice Esson gave an overview of three crucial Supreme Court of Canada cases: R. v. Smith,  2 S.C.R. 1120, R. v. Askov,  2 S.C.R. 1199, 59 C.C.C. (3d) 449 and R. v. Morin, supra. He pointed out in paragraph 14 of his judgment that the Morin case reversed the situation with respect to the burden of proof to the situation established by R. v. Smith, which determined that the ultimate legal burden of proof is on the defendant.
 I find it necessary to clarify at this point that the Smith case differentiated between the legal burden to prove Charter violation and the evidentiary burden with respect to different factors of the delay. It recognized that the legal burden to prove unreasonable delay rests with the defendant, whereas the burden of presenting evidence or argument with respect to the particular factors of the delay may shift between the parties, depending on the circumstances of each particular case. This concept was re-affirmed in R. v. Morin, where Justice Sopinka, speaking on the issue of burden of proof, quotes from Smith as follows:
"I accept that the accused has the ultimate or legal burden of proof throughout.
... Although, the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of the case."" (R. v. Morin, supra, at pg. 14)
 Elaborating further on the issue of burden of proof, Justice Esson addressed only one of the three rights protected by Section 11 (b) of the Charter: the right to security. It is in the context of discussing this right only that Justice Esson made the statement, which the prosecution relied upon:
"... As became apparent shortly after the decision in Morin, placing the onus back on the accused and treating prejudice as an issue of paramount importance was the most significant aspect of the decision." (R. v. Fagan, supra, at para 13)
 Since the statement did not address the defendant's right to a fair trial, which is in the core of the argument before me, I do not find the statement relevant. I will refrain from any further comments with respect to para. 13 of the decision.
 The second quote from the Fagan case relied upon by the prosecution is the following:
"... Reported case law since Morin makes it clear that successful S. 11 (b) challenges are now rare and highly unlikely to succeed unless the accused demonstrates serious prejudice." (R. v. Fagan, supra, at para. 19) (My emphasis.)
 The statement most definitely stands for the proposition that the probability of the delay argument being successful is low if the defendant does not show serious prejudice. It certainly does not stand for the proposition that the prejudice cannot be inferred. It also does not stand for the proposition that without prejudice the delay argument cannot succeed. It only states that the likelihood of success is minimal absent the demonstration of prejudice, but it does not exclude the possibility of success even if there is no prejudice demonstrated by the defendant.
 This conclusion resonates with the position of Justice Sopinka expressed on several occasions in R. v. Morin.
 In discussing the issue of prejudice in general, and comparing the Canadian concept to the American concept, Justice Sopinka established the right of the court to make an inference of prejudice and distinguished it from the situation where the parties provide evidence with respect to the prejudice. He stated the following at page 23 of the judgment:
"... We have decided in several judgments, including the unanimous judgement in Smith, supra, that the right protected by Sec. 11 (b) is not restricted to those who demonstrated that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. In the American concept of this principle, expanded in Barker v. Wingo, the inference is that no prejudice has been suffered by the accused unless he or she asserts the right. While the observation of Dubin C.J.O. in Bennet that many, perhaps most, accused are not anxious to have an early trial may no doubt be accurate, s. 11 (b) was designed to protect the individual, whose rights are not to be determined on the basis of the desires and practices of the majority. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn." (R. v. Morin, supra) (My emphasis.)
 At page 24 of the judgment Sopinka J. continues:
"Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding."
 In addition to establishing the right to infer prejudice, Justice Sopinka established the obligation of the court to make an inquiry into the existence of the same, when he stated at page 28 of the Morin case:
"The accused led no evidence of prejudice. The court must still consider what, if any, prejudice is to be inferred from the delay."
 Finally, there is one more quote from the Morin case that I would like to examine. That is the quote from page 28 of the judgment, where Justice Sopinka dealt with the issue of limits on institutional resources. He stated the following:
"While I have suggested that a guideline of eight to 10 months be used by courts to assess institutional delay in Provincial Courts, deviations of several months in either direction can be justified by the presence or absence of prejudice."
 In my opinion, it is clear from this quote that the position of the Supreme Court of Canada in R. v. Morin was that, even if the defendant suffered no prejudice, there must be a limitation to the amount of institutional delay that can be tolerated.
 It is in this context that I interpret the statement from Morin that "... In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined." And I emphasize, if there is no prejudice to the accused the basis for the enforcement of the individual right to have a trial within a reasonable time is seriously undermined. Undermined, but not non-existent. The door for finding the delay unreasonable is still open.
 This is the point where public interest comes into the picture.
 As it was stated in R. v. Morin, Section 11 (b) of the Charter is designed with two purposes. The primary purpose is the protection of individual rights of the defendant: the right to liberty, the right to security of the person and the right to a fair trial.
 The secondary purpose is the protection of societal interests: the interest for the enforcement of the law through bringing all accused to trial and the interest for a fair and efficient system of justice that will enjoy public confidence.
 It is the act of balancing these two interests that would ultimately lead to a decision as to whether the delay in any particular case is unreasonable. As McLachlin J. stated in R. v. Morin, at page 30:
"... In the final analysis the judge, before staying the charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial."
 In the circumstances where the interest of the society to bring the accused to trial is not that significant due to the nature of the offence or a combination of different reasons, and where the public confidence in the efficiency of the justice system is seriously eroded due to the excessive delay, the need for protection of social interest for an efficient system of justice can have a weight sufficient to render a delay unreasonable, in spite of lack of any prejudice to the accused.
 This conclusion is supported by the comments of McLachlin J. at page 31 of the Morin decision:
"In the case at the bar, the accused was able to meet the first hurdle of establishing a prima facie case. The delay was longer than it should have been, given the nature of the charge and the time reasonably required for processing it. But she failed to show that protection of her interest in a prompt trial or the ancillary public interest in prompt justice outweighed the public interest in bringing her, a person charged with a criminal offence, to trial." (R.v. Morin, supra) (My emphasis).
 The logical inference from this statement is that it would be open to the defendant to show that, even though the individual rights were not violated by the delay, the public interest for an efficient justice system overweighed the interest of bringing the defendant to trial, and rendered the delay unreasonable.
 To illustrate the point, I will give a hypothetical example of a simple violation ticket for a speeding offence, a quasi-criminal offence, in the circumstances where the period of institutional delay is five years. Assuming that it is an ordinary speeding allegation, without any consequences to society other than the usual ones, the interest of society for bringing the defendant to trial after five years of institutional delay would be literally non-existent. However, the public interest to have a fair and efficient justice system would be seriously violated by the five year delay, even if there is no prejudice to the defendant in terms of his right to liberty and security and even if the defendant is able to recall the entire incident and fully present her/his defence.
 The last case that I would like to address is the case of R. v. Dresher, supra. It is the case that deals with the charge of assault. The length of the delay considered was 18 months: 12 months of institutional delay and 6 months of delay attributable to the prosecution.
 The defence presented the argument to show a violation of two rights protected by Section 11 (b) of the Charter: the right to security and the right to a fair trial.
 The trial judge did not find sufficient evidence of violation of the right to security. He also did not find sufficient evidence of violation of the right to a fair trial. However, he expressed a concern that the delay of 22 months might have affected witnesses' ability to recall events. No finding of prejudice was made. Balancing the factors relevant to the issue of delay, the trial judge decided that the delay was unreasonable and stayed the proceedings.
 On the appeal, the B.C. Supreme Court allowed the appeal and ordered a new trial. It was found that there was no prejudice to the defendant, either proven or inferred. Mr. Justice Hood concluded that, absent any prejudice, the delay of 18 months was not unreasonable under the circumstances.
 R. v. Dresher is yet another decision that reaffirms the principles established by R. v. Morin. It recognizes the concept of inferred prejudice, when Mr. Justice Hood states at paragraph 33 of the decision:
"... Actual prejudice was not proven, and the delay period does not give rise to any significant inference of it."
 What has to be noted about the Dresher decision is the fact that it deals only with the situation where there is a strong public interest to bring the defendant to trial. It was in that context that Mr. Justice Hood made the following comments:
"... Mr. Justice Esson's views in Fagan are consistent with those of the Supreme Court of Canada. Clearly the degree of the prejudice is important, and it must be significant, for the accused to succeed. Otherwise it will not displace the strong public interest in bringing those charged with an offence to trial. The situation is best put by MacLaughlin, J. in Morin in the passage set out above. Finally, Fagan is the law in this Province unless and until the Supreme Court says otherwise." (R. v. Dresher, supra, at para. 25)
 The Dresher decision did not address the situation in which there is no strong societal interest to bring the defendant to trial, and where there is a serious violation of the societal interest for efficient, justice system. Therefore, this situation is still governed by the rules of the Morin case, as it was explained earlier. It can render the delay unreasonable even if the defendant did not suffer any prejudice.
 Finally, I would like to comment on the quote from the Dresher case that the prosecution relied upon:
"In my view, a mere observation that witnesses' memories might be effected is not sufficient to establish prejudice to the accused in the circumstances." (R. v. Dresher, supra, at para 27)
 In my opinion this passage does not stand for the proposition that the defendant has to present evidence with respect to the effect of the delay on the memory of the witnesses in order to be successful with his argument. It only stands for the proposition that if court is not satisfied that the memory of the witnesses was affected by the delay, if there is only a concern about that possibility, no determination of prejudice (whether inferred or based on the evidence) can be made.
 In conclusion, according to the rules established in R. v. Morin, supra, the prejudice that the defendant suffered from the delay can be inferred from the length of the delay, without any evidence of the prejudice being led by the defendant. The circumstances of a particular case may require the defendant to lead evidence of prejudice, in order for his application to be successful. Even if the defendant did not suffer any prejudice, it will still be open to her/him to show that the delay violated societal interest for a prompt trial to the extent that overweighs societal interest for bringing the defendant to trial.
 The cases of Fagan and Dresher do not depart from the principles established in R. v. Morin. Their application is restricted to the particular circumstances that these cases dealt with.
THE THIRD ISSUE: IS THE DELAY IN THE ROBINSON CASE SO UNREASONABLE AS TO WARRANT A STAY OF PROCEEDINGS
 The purpose of the analysis of the argument under Section 11 (b) of the Charter is to determine whether the delay in the hearing of the case violated the individual rights protected by the section or the interests of the society for a prompt trial to the extent that overweighs societal interest for the enforcement of the law.
 The factors that are to be considered in the analysis are the following:
The length of the delay;
Waiver of time periods;
The reasons for the delay, including:
(a) inherent time requirements of the case;
(b) actions of the accused;
(c) actions of the Crown;
(d) limits on institutional resources; and
(e) other reasons for delay.
Prejudice to the accused.
(R. v. Morin, supra, at pg. 13)
 I shall consider these factors in order presented.
1. The Length of the Delay
 As stated earlier, at paragraph 13 of this judgment, the total length of the delay in the Robinson case is 21 months. This delay prima facie appears to be excessive and warrants further enquiry into it's reasonableness.
2. Waiver of Time Periods
 There was no waiver of time periods, explicit or implied.
3. The Reasons for the Delay
a) Inherent Time Requirements of the Case
 Inherent time requirements can be defined as the amount of time necessary for the case to be prepared and for the trial to be conducted. Inherent time requirements depend on the circumstances of each particular case. They include "intake period" common for most of the cases and the time requirements related to the complexity of the case.
 The time requirements for the Robinson case to be prepared and for the trial to be conducted include the following:
- the time between the date of the issuance and service of the ticket, May 19, 1999, and the date of the dispute, June 07, 1999, which amounts to 19 days. I find this amount of time reasonable, since it is in accordance with the provisions of the Offence Act, which requires the defendant to file a Notice of Dispute within 30 days after the service of the ticket;
- the time between the date of the dispute, June 07, 1999 and the date of the first Notice of Hearing was mailed, September of 2000, which amounts to approximately 15 to 16 months. In dealing with the reasonableness of this time period I apply the reasons of my colleague, Sitting Justice of the Peace Hayes, from the decision of R. v. Stoyanov, supra. Considering the issue of "intake requirements" for a violation ticket, Hayes SJP decided that a reasonable amount of time required for the preparation of the case between the date of dispute and the date of mailing the Notice of Hearing is one month. He stated at page 14 of his judgment:
"Once the Notice of Dispute is filed, there are further inherent time requirements to consider associated with such factors as preparing documents for court purposes, confirming availability of witnesses, assigning a court date, and mailing a Notice of Hearing to the disputant. The amount of time necessary to prepare the matter for trial can vary with the complexity of the charge(s) on the ticket, the number of the witnesses required and any disclosure, requests, etc.
Historically in such simple traffic matters a standard of one month has been applied to these "intake requirements" as being a reasonable delay that should be considered as 'neutral'."
There was no evidence presented before me to indicate that the "intake requirements" of the Robinson case were any different from an average traffic matter. Therefore I find the standard of one month referred to by Hayes SJP applicable and reasonable under the circumstances;
- the time required for conducting the trial, or rather for hearing the delay argument was short - the hearing was concluded on the day it was started, October 19, 2000. It was the complexity of the issues before the court that required a prolonged amount of time for deliberation and judgment writing. I am not able to provide the exact amount of time that I dedicated to this matter, but I will estimate it to be six working days. Keeping in mind that the Robinson case was not the only matter that I was dealing with, that there were other continuations scheduled, which is a regular occurrence in the course of SJP work, considering the necessity of some of SJP time to be dedicated to studying, legal research and administrative work, and having in mind that the system does not provide any time for judgment writing, but merely one unassigned day per month for "keeping current on legal developments and for office and administrative work, correspondence, etc." (Judiciary Staff Handbook), I will rule that the two month period from the arrival of the transcript to the decision was not unreasonable under the circumstances.
I would like to comment on the amount of time required to provide a transcript of the case. In my experience it does not take longer than one month for the transcript of any given trial to arrive. As I stated earlier, it took two months for the transcript of the Robinson case to arrive, for the reasons not known to me. Absent any evidence with respect to the issue, I will apply a one month period as an outer limit of a justifiable time requirement. I rule that one month of delay in obtaining of the transcript was unreasonable.
In conclusion, inherent time requirements of the Robinson case amount to four months and 19 days. This includes 19 days for filing the dispute, one month for the preparation of the trial, one month for obtaining the transcript and two months for deliberation and written reasons.
b) Actions of the Accused
 The only evidence of any actions of Ms. Robinson that might have caused some of the delay is the copy of the defendant's Notice of Charter Argument to the Attorney General of British Columbia, dated October 06, 2000. There is no direct connection between the notice and the adjournment of the trial from the original date of October 10, 2000 to October 19, 2000. However, I am prepared to assume that the adjournment was granted on the defendant's request, to allow the defendant to give a reasonable notice of Charter argument to the Crown.
 The defendant received the Notice of Hearing for October 10, 2000 some time in September of 2000. The precise date could not have been determined from the documentation on the file. Therefore, for all I know, she could have received it on the last day of September. It took her then six days to decide to launch a constitutional challenge on October 06,2000. I find that amount of time reasonable. I also find that once the defendant made her decision and applied for the adjournment, the system accommodated her promptly by providing her with the trial date only 9 days apart from the initial date.
 In conclusion, if the delay of 9 days between the initial trial date of October 10,2000 and the date of hearing, October 19,2000, was caused by the defendant, I find that delay to be necessary under the circumstances. It should not be taken against the defendant.
c) Actions of the Crown
 There were no actions taken by the Crown that influenced the amount of the delay in this case.
d) Limits on Institutional Resources
 According to R. v. Morin, institutional delay is the delay caused by the inability of the system to accommodate the trial. It starts at the point where the parties are ready to proceed. Ideally, the system should be able to accommodate the parties immediately, without any delays. Realistically, "... some allowance must be made for limited institutional resources." (R. v. Morin, supra, at pg. 19)
 R. v. Morin suggests a period from eight to 10 months as an administrative guideline for institutional delay in Provincial Courts. That guideline is not supposed to be applied mechanically. It should be applied flexibly, in consideration with a number of other factors, such as the actual institutional limitations in the particular jurisdiction, statistics from other comparable jurisdictions, opinions of other courts and judges and expert opinions. Another important factor that has to be considered in dealing with the institutional delay is prejudice to the defendant. As it was stated in the Morin case, the presence or absence of prejudice may alter the limits of acceptable institutional delay:
"The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while in custody, subject to restrictive bail terms and conditions or otherwise experiences substantial prejudice, the period of institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact." (R. v. Morin, supra, at pg. 21)
"While I have suggested that a guideline of eight to 10 months be used by courts to access institutional delay, deviations of several months in either direction can be justified by the presence or absence of prejudice." (R. v. Morin, supra, at pg. 28)
 The amount of institutional delay in the Robinson case is approximately 16 1/2 months. I calculated this amount by deducting four months and 19 days of "inherent time requirements" from the total length of delay of 21 months. This amount substantially exceeds the administrative guideline of eight to 10 months set out in the Morin case.
 There was no evidence led with respect to the institutional limitations in North Vancouver or any other comparable jurisdiction. There was no opinion presented as to the acceptable administrative guideline for the matter at hand. Therefore, I shall apply the guideline set out in the Morin case, and consider it in light of one factor only - prejudice to the defendant.
4. Prejudice to the Defendant
 Ms. Robinson did not provide any evidence of prejudice. Still, the court has an obligation to consider if any prejudice is to be inferred from the delay.
 According to the certified copy of the violation ticket, that is part of the court file, Ms. Robinson was born on December 21 of 1921. At the time of the incident May 19, 2000 she was 78 years old. That fact was confirmed by her agent, Mr. Robinson, and by my observations on the hearing date of October 19, 2000.
 Without any hesitation I can say with certainty that Ms. Robinson is at that age where a person's memory is short spanned and far from being reliable. Although Ms. Robinson did not provide any evidence to indicate whether she was able to recall the accident that she allegedly had participated in, I am satisfied that her age and the length of the institutional delay of 16 1/2 months lead to only one logical conclusion: that Ms. Robinson's ability to accurately recall the events from May 19, 1999 has been significantly diminished by the delay. In saying so, I am mindful of the fact that I am dealing with an accident allegation, an occurrence outside of the stream of ordinary daily events, and therefore easier to remember. Yet, I find the possibility of a 78 year old person's memory not being significantly affected by eight to 10 months of delay set as a guideline in the Morin case, let alone the delay of 16 1/2 months, so remote, that I dismiss it as an absurdity.
 In conclusion, based on the length of the delay, I find the inference of prejudice to the defendant in terms of violation of her right to make full answer and defence.
 The last question that is to be decided is whether the violation of individual rights in the Robinson case in conjunction with the societal interest for a prompt trial outweighs the societal interest for bringing the defendant to trial, so as to warrant a stay of proceedings.
 In dealing with the societal interest to bring the defendant to trial, I am cognizant of the fact that accident cases may have various degrees of significance in terms of the consequences. The consequences may range from minor material damage to serious personal injury, even death.
 The difference between the more and the less serious accident cases under the Offence Act is recognized through the form of the charge. The more serious charges are laid in the form of an Information, which allows for the more serious penalty to be imposed. The less serious charges are laid in the form of a violation ticket, which allows for the less serious penalty to be imposed: the prescribed monetary penalty as well as driving prohibition.
 The charge against Ms. Robinson has been laid in a form of a violation ticket. The prescribed amount of fine for the type of the offence Ms. Robinson has been charged with is $85.00. That fine is lesser than the fine prescribed for the least serious speeding offence.
 The form of the charge and the amount of fine support the conclusion of the Robinson matter falling within the category of less serious accident cases. The prosecution did not provide any evidence or argument to show otherwise. Therefore, I conclude that the charge laid against Ms. Robinson is of a minor importance. The interest of the society for bringing this matter to court is not significant.
 Considering the lack of significance of the societal interest for bringing the defendant to court, and the prejudice that the defendant must have suffered due to the delay, I am of the opinion that the need for protection of Ms. Robinson's right to a fair trial, coupled with the societal interest for a fair and efficient justice system, outweighs the societal interest for law enforcement. As a result I am directing a stay of proceedings.
M. Kobiljski, SJP
CASE NUMBER 2- Regina vs KD
R. v. K.D.
2006 BCPC 0556
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REASONS FOR JUDGMENT
HONOURABLE JUDGE R.R. SMITH
Counsel for the Crown:
Counsel for the Defendant:
Place of Hearing:
Date of Hearing:
4 December 2006
Date of Judgment:
20 Dec 2006
 The defendant is charged on a violation ticket with speeding on June 6, 2005 contrary to the Motor Vehicle Act. This is an interim ruling on his claim that his s.11(b) Charter right to be tried within a reasonable time has been breached. He seeks a judicial stay of proceedings under s. 24(1) of the Charter.
II. THE FACTS
 On June 6, 2005 the defendant was charged with speeding in Westbank. He filed a Notice of Dispute in a timely manner and the matter was set to be heard on March 27, 2006. On March 10, 2006 the defendant filed and served a written application for a s.11(b) Charter remedy given it had been nearly 10 months since the alleged speeding infraction until the matter was to be heard.
 On March 27, 2006 when the matter came before the court for the scheduled hearing, the presiding Justice of the Peace adjourned the matter to April 10, 2006 to fix a new hearing date for when the matter could be heard before a Provincial Court Judge. This was because of administrative policies that required Charter arguments to be heard before a Judge as opposed to a Justice of the Peace.
 On April 10, 2006 the Judicial Case Manager adjourned the matter to a date in August for a pre-trial confirmation hearing to confirm a September 29, 2006 trial date. On September 29, 2006, which was the second trial date, there was no court time available for the hearing of the matter, so it was again adjourned to the Judicial Case Manager to arrange a third trial date, which was eventually fixed for December 5, 2006.
 On December 5, 2006, the hearing commenced before this court and evidence was heard and submissions made on the interim application for a judicial stay, based on the alleged s.11(b) Charter breach of a trial within a reasonable time. The court then adjourned the matter to December 20, 2006 for an interim ruling on the Charter issue.
 The law is clear regarding this Charter claim. The onus is on the accused to prove, on the balance of probabilities, that he was prejudiced by the delay. There is no presumption of prejudice based solely on the passage of time, but prejudice may be inferred depending on the circumstances of the case. However, in the absence of some evidence of prejudice, a judicial stay of proceedings is not appropriate (See R. v. Fagan (1998), 115 B.C.A.C. 106 (B.C.C.A.); R. v. Lefort  B.C.J. No. 877, (B.C.S.C.)).
 The allowable time frame for bringing an accused charged with a regulatory offence to trial is the same as the time required in the case of a Criminal Code Offence of similar complexity (see R. v. CIP Inc  1 S.C.R. 843). Our Court of Appeal dealt with this very issue in R. v. McHardy  B.C.J. No. 1761 when the court rejected the notion that a 9 month delay between the alleged offence date and the hearing date for a speeding ticket was unreasonable for a simple traffic violation.
 Examples of inferred prejudice include cases such as the photo radar charges where people were not served with notice of the alleged infraction until months after the alleged offence date, and it was inferred that most people would not be able to remember such trivial events months after the fact (see R. v. Fischer  B.C.J. No 2421 and R. v. SRC Law Corp.  B.C.J. No 151).
 The competing interest between the accused person’s right to be tried within a reasonable time and society’s need to see that those charged with an offence are tried in a court of law require a fine balancing which will always be based on the particular circumstances of the individual case.
 The seminal case dealing with arguments of alleged unreasonable trial delays is the Supreme Court of Canada case of R. v. Morin,  1 S.C.R. 771. The factors for consideration are (1) the length of the delay, (2) any waiver of time periods, (3) the reasons for the delay, and (4) prejudice to the accused. That law has been further refined by the courts over the past 14 years, but the basic principles remain the same.
 In the case at bar, there was no waiver of time by the defendant. The delay was nearly 10 months from the alleged offence date until the first hearing date before the Justice of the Peace, then a further delay of 6 months until the second trial date. All parties were ready to proceed that date but there was no court time available so it did not proceed. The matter was then delayed for a further 2 months when the trial was actually commenced with the initial hearing of this Charter delay argument. In total there was an 18 month delay from the time of the service of notice of the alleged motor vehicle act infraction until the time the matter could be heard.
 The defendant does not claim there are any missing witnesses since the alleged offence date, but he does claim he did not make any contemporaneous written notes of the event, and his memory of the events is less clear with the passage of time. He claims the biggest hardship for him is that he has had to come to court and miss work or other activities on 5 occasions to deal with this matter.
 The penalty for this regulatory offence, as shown on the Violation Ticket, is a $138.00 fine. No doubt people who leave work to attend court to contest such regulatory offences understand that the fine for the alleged offence may be considerably less than the cost of missing work. That is a reasonable cost that people have to pay in a democratic society where the rule of law governs, as long as the trial can proceed within a reasonable amount of time.
 The irony in this case is that if the Charter argument would have been dealt with on the first trial date, the defendant would not likely have been successful with that argument after the 10 month delay. In R. v. McHardy (supra), our Court of Appeal was sympathetic to the argument that a 9 month delay for the hearing of that speeding ticket was too long a wait, but at the end of the day the court upheld that delay as being within the law. I am not clear on why first appearance dates, which also serve as first trial dates, were being set 10 months down the road for a simple Motor Vehicle Act alleged infraction to be heard by a Justice of the Peace. That is a practice that is bound to result in many matters getting bumped to second trial dates that will be more than a year from the alleged offence date.
 However, after 18 months and 3 trial dates and 5 days of missed work, and trying to remember the details of such a minor matter for that length of time, this court infers that the prejudice to the accused now far outweighs the benefit to society to continue with this prosecution of a $138 speeding ticket. I find that the accused’s right under s.11(b) of the Charter to a trial within a reasonable time has been breached.
 Pursuant to s. 24(1) of the Charter, I direct a judicial stay of proceedings on this Violation Ticket.
 I again echo the obiter of our Court of Appeal in the McHardy case where Huddart, J.A. was troubled by a nine month delay in having a traffic ticket matter heard. The difficulty with speeding tickets is the procedural process involves the first appearance also being the trial date. No doubt that is in an effort to try and expedite the hearing of those matters, yet it seems to be having the opposite result. Such a system of having the trial date also be the first appearance date would work well if the first appearance date was much earlier than ten months from the alleged offence date. Even simple criminal matters would never have a first appearance date ten months after an alleged offence date, yet for these less complex non-criminal ticket matters, the first appearance seems to often be nine or ten months after the alleged infraction. If trials proceed at that first appearance, then it would be unlikely for any unreasonable delay arguments to be successful. If the matter gets adjourned, there would still be a reasonable amount of time for the trial to be heard at a later date as long as the first appearance/trial date was set within a few months of the alleged offence date. However, when that first appearance/trial date is nine or ten months after the alleged offence date, then if an adjournment of the trial is required for some reason not related to a waiver of time by the defendant, then potential legitimate delay arguments emerge, and end up taking even more of a delay as the courts sort out the delay arguments on a case by case basis. I have added these comments with a hope that the state can look at making sure that the resources are in place for the first appearance/trial dates to be set within three to five months of the alleged offence dates, so that they can all be completed within a reasonable amount of time.
R.R. SMITH, PCJ