Her Majesty the Queen v. Brace

[Indexed as: R. v. Brace]

104 O.R. (3d) 32

2010 ONCA 689

Court of Appeal for Ontario,

O'Connor A.C.J.O., Simmons and Juriansz JJ.A.

October 21, 2010

Charter of Rights and Freedoms -- Trial within reasonable time -- Overall delay between laying of charges and first day of retrial following mistrial being 30 months -- Trial judge erring in dismissing accused's application for stay of proceedings -- Crown having duty to schedule retrial without further delay following mistrial and failing in duty by not attaching heightened priority to new trial date -- Trial judge erring in failing to attribute entire delay due to Crown's refusal to disclose police records to Crown -- Trial judge also erring in focusing on lack of actual prejudice to accused -- Significance of actual prejudice reduced where delay exceeds guideline period -- Delay unreasonable.

The accused was charged on August 19, 2004 with dangerous driving, possession of stolen property and resisting arrest. At the first pre-trial, in February 2005, defence counsel requested disclosure of all documents relating to an internal police investigation of the accused's complaint that he was beaten by the police during his arrest. Defence counsel renewed his request a month before the trial date. The Crown took the position that the file consisted of third-party records and that the defence had to bring an O'Connor application to obtain it. The accused brought a successful application for disclosure but the motion used two days of the period set aside for the trial, resulting in the loss of the first trial date. As a result, the first trial date was lost. The trial resulted in a hung jury, and a mistrial was declared. The retrial was ultimately scheduled for February 16, 2007 after being rescheduled as it conflicted with a judicial conference. The accused brought an application for a stay of proceedings on the basis that his right under s. 11(b) of the Canadian Charter of Rights and Freedoms was infringed. The application was dismissed, and the accused was convicted. He appealed.

Held, the appeal should be allowed.

The total delay was 30 months. In all cases where there is a mistrial, the Crown should seek to schedule the retrial without further delay. In this case, the Crown attached no special priority to the case, but had it scheduled in the normal course. More attention to an accused person's s. 11(b) rights is required. The trial judge also erred by allocating the delay due to the disclosure request to both the defence and the Crown. The request was not a request for third-party records and the entire delay should have been allocated to the Crown. The trial judge misapprehended the evidence when he incorrectly held that the date ultimately set was the first date on which defence counsel was available, when the trial had to be adjourned due to a judicial conference. Finally, the trial judge failed to sufficiently recognize that delay, in and of itself, can be expected to have a detrimental effect on a fair trial. When delay exceeds the guideline period, the significance of actual prejudice is reduced. The trial judge placed too much weight on the absence of specific prejudice in the s. 11(b) analysis.

APPEAL by accused from the conviction entered by Gans J., [2007] O.J. No. 702, 73 W.C.B. (2d) 100 (S.C.J.).

Cases referred to R. v. Satkunananthan, 2001 CanLII 24061 (ON CA), [2001] O.J. No. 1019, 143 O.A.C. 1, 152 C.C.C. (3d) 321, 42 C.R. (5th) 220, 81 C.R.R. (2d) 285, 49 W.C.B. (2d) 313 (C.A.), consd [page33 ] Other cases referred to R. v. Askov (1990), 1990 CanLII 45 (SCC), 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106, 74 D.L.R. (4th) 355, 113 N.R. 241, J.E. 90-1515, 42 O.A.C. 81, 59 C.C.C. (3d) 449, 79 C.R. (3d) 273, 49 C.R.R. 1, 11 W.C.B. (2d) 224; R. v. B. (W.), 2000 CanLII 5750 (ON CA), [2000] O.J. No. 2186, 133 O.A.C. 3, 145 C.C.C. (3d) 498, 34 C.R. (5th) 263, 76 C.R.R. (2d) 189, 46 W.C.B. (2d) 448 (C.A.); R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 134 N.R. 321, J.E. 92-517, 53 O.A.C. 241, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1, 8 C.R.R. (2d) 193 Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(b)

Nathan Gorham and Paul Aubin, for appellant. Benita Wassenaar, for respondent.

The judgment of the court was delivered by

1JURIANSZ J.A.: -- The appellant, Eugjen Brace, appeals his convictions on charges of dangerous operation of a motor vehicle, possession of stolen property over $5,000 and resisting arrest, and from the sentence imposed. He raises two grounds of appeal: that the trial judge erred by refusing to admit a prior statement made by him tendered to rebut an allegation by the Crown that his testimony about the police beating him on his arrest was a recent fabrication, and that the trial judge erred by dismissing his application for a stay of proceedings due to a violation of his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.

2I find it unnecessary to deal with the first ground of appeal as I find merit in the second ground. I would allow the appeal, quash the convictions and enter a stay of proceedings because of the violation of the appellant's s. 11(b) rights.

Facts Relevant to the S. 11(b) Issue

3The facts necessary to decide the s. 11(b) issue are straightforward. The charges against the appellant were laid August 19, 2004 and he brought his s. 11(b) application on February 16, 2007, at the opening of the trial at which he was convicted. The overall delay was about 30 months.

4The appellant was held in custody from the time of his arrest until December 22, 2004, when he was released and placed under house arrest subject to conditions. The preliminary hearing was held on December 29, 2004 and the appellant was [page34 ]committed for trial at its conclusion. Thus, the delay in the Ontario Court of Justice was just over four months.

5At the outset, there was little delay in the Superior Court as well. The first pre-trial was held on February 1, 2005. At that pre-trial, the defence requested disclosure of all documents related to the investigation by the Professional Standards Unit of the Toronto Police Service as a result of a complaint that the police beat the appellant during his arrest on these charges. A trial date was set for September 12, 2005.

6On August 11, 2005, the defence renewed its request to the Crown for the internal investigation file. On August 16, the Crown took the position that the defence had not requested the file at the pre-trial and that, in any event, the file consisted of third-party records and the defence had to bring an O'Connor application to obtain it. The dispute led to a defence application for disclosure that was heard September 12 and 13, 2005. The disclosure application resulted in the loss of the first trial date.

7On September 16, Hawkins J. ordered the Crown to disclose the file. Hawkins J. took the view that the matter was one of simple disclosure that did not involve third-party records. A second date for trial was set for January 9, 2006.

8The trial began as scheduled on January 9, 2006, but resulted in a hung jury. A mistrial was declared on January 30, 2006. On February 6, 2006, a third trial date was set for November 6, 2006. The November 6, 2006 date became unavailable when the Superior Court Educational Conference was rescheduled for that week. The Crown learned of the conflict in May 2006 and it brought an application, heard on June 8, 2006, to adjourn the trial to a later date. The trial was adjourned to February 12, 2007. At the June 8, 2006 appearance, the defence indicated it was available earlier than February 12, 2007 and stated its intention to bring a s. 11(b) application.

9On February 12, 2007, the Crown was unavailable and the matter was put over to February 16, 2007. On February 16, 2007, the defence brought its s. 11(b) application. The trial judge dismissed the s. 11(b) application on February 20, 2007.

The Trial Judge's Reasons

10The trial judge found that the total length of the delay to the start of trial was some 30 months. He noted that the Crown conceded the delay was of sufficient length to raise an issue as to its reasonableness. The trial judge focused on two periods of delay, the delay caused by the disclosure dispute and the delay caused by the rescheduling of the new trial after the mistrial. [page35 ]

11In regard to the disclosure dispute, the trial judge found that the defence had, in fact, requested the investigation file at the first pre-trial on February 1, 2005. He pointed out [at para. 6] that the disclosure request included "any and all statements made by any witnesses to the alleged altercation between the accused and the police which gave rise to the charge of resist arrest". He agreed with Hawkins J. that the defence request was not one for the production of third-party records, but simply a matter of disclosure. Nevertheless, he apportioned [at para. 30] the delay to both the Crown and the defence because "neither party has acquitted itself admirably in this respect". He stated [at para. 28] that the defence could have followed up on its request sooner and pointed out that defence counsel's firm "could easily establish a modest tickler system at no great expense to facilitate this type of record building".

12In regard to the scheduling of the new trial after the mistrial, the trial judge noted that when the conflict with the judges' conference became apparent, the Crown sought a further adjournment without indicating it was alive to the s. 11(b) issue and did not explore earlier dates with the defence. The transcript indicates the judge was mistaken in stating that February 12, 2007 was the first available date for each of the defence and the Crown. As noted above, defence counsel had indicated he was available earlier.

13The trial judge noted that the appellant led no evidence of actual prejudice from the delay, and he declined to infer "specific as opposed to implicit" prejudice. The trial judge also considered that the charges were serious and that the public had a legitimate interest in ensuring that they were dealt with on the merits. The trial judge concluded that the period of delay was not unreasonable despite the delays related to the disclosure issues and the rescheduling of the trial because of the mistrial. He stated [at para. 33] that "[h]ad the evidence in respect of prejudice been stronger or more case specific, I might have come to another conclusion". He dismissed the s. 11(b) application "with some reservation".

Discussion

14The most important issue raised in this appeal is the delay incurred while rescheduling after the mistrial. Clearly, additional time to schedule another trial was an inherent requirement of the case. In R. v. B. (W.), 2000 CanLII 5750 (ON CA), [2000] O.J. No. 2186, 133 O.A.C. 3 (C.A.), at para. 61, Rosenberg J.A. said that "[s]ome short period of delay" after a mistrial is properly characterized as part of the inherent time requirements of the case. This court [page36 ]was more emphatic in R. v. Satkunananthan, 2001 CanLII 24061 (ON CA), [2001] O.J. No. 1019, 143 O.A.C. 1 (C.A.). At para. 55 of the court's decision, it stated that, when the trial in that case ended in a mistrial, "it was incumbent on the Crown to take all necessary steps to ensure that the third trial commenced without further delay". In the circumstances of that case, an additional delay of seven to nine months was simply not acceptable.

15While the circumstances that caused the mistrial in Satkunananthan were quite different to those in this case, and the delay was longer as well, it would be wrong to understand the court's admonition of the Crown in that case as limited to its special facts. In all cases where there is a mistrial, the Crown should seek to schedule the retrial "without further delay". In most instances, only "some short period" of further delay is inherently required.

16In this case, the mistrial was declared some 13 months after the appellant was committed for trial. The record discloses no effort by the Crown to seek an early date for the retrial. It seems the Crown attached no special priority to the case, but had it scheduled in the normal course. The date initially set for the retrial was more than nine months after the mistrial. When that date became unavailable and the defence indicated that s. 11(b) was an issue, the Crown still did not explore when the defence was first available. Instead, it asked for a date four months later. More attention to an accused person's s. 11(b) rights is required.

17That said, it is my view that the trial judge erred by allocating the delay due to the defence's request for disclosure to both the defence and the Crown. The request related to the police's conduct when it arrested the appellant. It was not a request for third-party records. The defence made the request at the first pre-trial on February 1, 2005. The entire delay should have been allocated to the Crown.

18As well, while it was within the trial judge's discretion to find that there was no evidence that the appellant had suffered actual prejudice, this was not a case that should have turned on that finding. The trial judge failed to sufficiently recognize that delay, in and of itself, can be expected to have a detrimental effect on a fair trial.

19As things turned out, delay did become a factor at the appellant's trial. Crown counsel put to the appellant that his memory of the events was not worthy of belief without contemporaneous notes because of the passage of time. Crown counsel suggested that the memories of the police officers should be preferred over the appellant's because their testimony was based on [page37 ]contemporaneous notes. Needless to say, the trial judge could not have foreseen what would occur at trial. Equally, the appellant could not have foreseen how the Crown would eventually use the passage of time to his detriment and so could not have led evidence of that prejudice at the time of the application.

20The Supreme Court has recognized that long delay, alone, has a detrimental effect on a fair trial. In R. v. Askov (1990), 1990 CanLII 45 (SCC), 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106, Cory J., for the majority, indicated, at para. 69 (iv), that "[t]here is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time".

21Where delay exceeds the guideline period, the significance of actual prejudice is reduced. In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, at para. 53, Sopinka J., writing for the majority, said:

The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable 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.

22The trial judge placed too much weight on the prejudice factor in reasoning that the s. 11(b) application should be dismissed because of the lack of "stronger or more case specific" evidence of prejudice.

23The charges in this case are serious as the trial judge noted. The appellant was alleged to have ignored a police officer's gesture to stop the SUV he was driving and instead almost ran her down. The public has an interest in having the charges dealt with on their merits. The public also has an interest in having serious charges dealt with in a timely manner.

24In all the circumstances, I would find that the trial judge erred by finding that the appellant's s. 11(b) rights were not violated. I need not address the other ground of appeal. I would allow the appeal, quash the convictions and enter a stay of proceedings.