WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Hamilton 11-Y5911

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

Between:

Her Majesty the Queen

— and —

D.F.

Q.F.

Before: Justice M. Speyer

Heard on: October 9, 2013

Ruling on s. 11(b) Charter Application released on: October 28, 2013

Counsel:

• Jill McKenzie — counsel for the Crown
• Geoffrey Read — counsel for the accused D.F.
• Asgar Manek — counsel for the accused Q.F.

DECISION

SPEYER, J.:

Introduction

[1] The Applicant youths are charged with two counts of assault causing bodily harm. D.F. faces an additional charge of assault with a weapon. The offences are alleged to have occurred in the early morning hours of July 30, 2011. D.F. was 17 years old at the time of the alleged offence, his brother Q.F. was 16. The trial is set to commence on November 6, 2013 for 7 days.

[2] The Youths have made an application pursuant to s. 11(b) of the Charter of Rights and Freedoms on the basis that their right "to be tried within a reasonable time" has been infringed. They seek a judicial stay of proceedings pursuant to s. 24(1) of the Charter.

Procedural History

[3] Both youths were arrested and brought to bail court on August 4, 2011. Their first trial was scheduled for December 4, 5, 6, 7, and 13 of 2012. On the eve of the first trial, the Crown, Wendy Rose, learned from the investigating officer that police had seized a surveillance tape from one of the complainants; that this tape may have captured part of the incident but that this tape was misplaced by the police. Ms. Rose promptly advised defence counsel of this fact.

[4] On December 4, 2012, defence counsel requested an adjournment to consider whether to bring a "lost evidence" application under s. 7 of the Charter on the basis that this video had the potential to be highly relevant and important evidence to the defence. The Crown agreed to the adjournment request on the basis that it wished to determine if the videotape could be found. The case was adjourned to December 7, 2012.

[5] Due to illness, the Crown was not able to follow up on the lost video issue and the case was adjourned to December 13, 2012. On this date, the Crown advised the court that it would resist a "lost evidence" application and was in a position to set a new trial date. Unfortunately, a new trial date was not set because I was sick that day and the trial co-ordinator would not give application or trial dates without my approval.

[6] The matter was back before me on January 16, 2013. At this time the Crown advised the court that it had located and disclosed the videotape to defence counsel and was ready to set a new trial date. The trial co-ordinator had advised counsel a five day trial could not be heard until at least September and she was not in a position to offer any dates yet. I ordered a further judicial pre-trial to determine if the case could be resolved, or the issues narrowed. Counsel asserted their clients' Charter rights to be tried within a reasonable time.

[7] A judicial pretrial was held on February 7, 2013. The judicial pre-trial judge authorized seven days of trial time. On February 12, 2013, new trial dates of November 6, 7, 8, 25, 26, 27 and 28, 2013 were set. This application was heard on October 9, 2013. One of the key issues in this application is the attribution of time between the first trial date of December 4, 2012 and following, and the start of the second trial on November 6, 2013.

[8] For the reasons that follow, I have concluded that the applicants' right to be tried within a reasonable time has been infringed and the only appropriate remedy is a stay of proceedings.

Analytical Framework

[9] The legal framework within which these applications are to be considered was recently summarized by Justice S. Armstrong in R. v. Lai, [2013] O.J. No. 1359 (O.C.J.) and I borrow freely from that judgment.

[10] Section 11(b) of the Charter aims to protect both the individual rights of an accused and the interests of society. It guarantees the right of an accused to be tried within a reasonable time by protecting three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of exposure to criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that proceedings take place while evidence is fresh and available.

[11] The section also seeks to protect society's interest in law enforcement by having cases tried on their merits and by having accused persons tried quickly and fairly. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin, [1992] S.C.J. No. 25 at paragraphs 29 and 30.

[12] To determine whether an individual's section 11(b) rights have been infringed, the court must consider the length of the delay and the reasons for it using the four-factor framework set out in paragraphs 31 and 32 of Morin, and then decide whether the delay is unreasonable in light of the individual and societal rights the section is designed to protect.

[13] The four factors to be considered are:

1. the length of the delay,
2. whether there has been a waiver of any portion of the delay by the accused,
3. the reasons for the delay including:
   • (a) the inherent time requirements of the case,
   • (b) the actions of the accused,
   • (c) the actions of the Crown,
   • (d) institutional delay,
   • (e) other reasons for delay, and,
4. whether the delay has caused prejudice to the accused.

The Delay and the Reasons for it: Application of Morin Framework

(1) Length of Delay

[14] In deciding whether the overall delay is unreasonable, the relevant time period is from the date the Information is sworn until the end of the trial (Morin, paragraph 35). In this case, the period is from August 4, 2011 to November 28, 2013, or approximately 27-½ months. This period raises an issue of reasonableness that warrants an inquiry.

(2) Waiver of Time Periods

[15] On the record before me, I find that D.F. has not waived any portion of the delay in this case. Q.F. was offered a first trial date of November 19, 2012 but his counsel Mr. Manek was not available. I therefore find that 15 days from November 19 to December 4, 2012 was waived by Q.F. and will be deducted from the overall length of the delay.

(3) Reasons for the Delay

(a) Inherent Time Requirements – Neutral Intake and Preparation Time

[16] The first period of neutral time is the intake period, or the time from the date of the youths' arrest until the day all parties are ready to set a trial date (see Morin paragraphs 68–70). This includes the time from August 4, 2011 to April 10, 2012, or 8.4 months.

[17] I include in this period the time required for counsel to schedule a Crown pre-trial meeting and for both sides to schedule a judicial pre-trial conference. In this jurisdiction, all cases that are expected to take over one day of trial require a judicial pre-trial conference. A judicial pre-trial conference was held on March 22, 2012. At that time, five days of trial time was authorized by the pre-trial judge. Due to the length of time required, the trial co-ordinator was not able to give trial dates until April 10, 2012.

[18] Judicial pre-trial conferences have been recognized by appellate courts as reasonable and necessary case management tools designed to ensure overall timeliness of the system, to ensure that trials are focussed and that appropriate judicial resources are allocated to the hearing of the matter. Accordingly, the time required to schedule, prepare for, and conduct judicial pre-trial conferences should be considered an inherent time requirement of the case, both generally and specifically for the purposes of a s.11(b) analysis: see R. v. Nguyen, 2013 ONCA 169 at paragraph 54; and R. v. Tran, 2012 ONCA 18 at paragraph 34.

[19] A further period of intake or neutral time is the time required by counsel to clear their calendars and prepare for the trial. In R. v. Tran, at paragraph 32, the court held that parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel requires time to clear their schedules so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.

[20] The first trial date was set on April 10, 2012. The record is silent as to when Mr. Manek and Mr. Read were in a position to actually conduct the trial. It is therefore difficult to say with certainty as to how the delay between this date and the first trial date should be allocated. I am familiar with Mr. Manek and Mr. Read and know them to be experienced and busy defence counsel. They appear regularly in this court. In the circumstances of this case, including the length of time set for trial, I estimate that they would need at least two months to clear their schedules and prepare for the trial. This extends the neutral time period by two months to approximately 10.4 months.

(b) Actions of the Accused

[21] As I will elaborate further below, other than the 15 days waived by Q.F., I am satisfied that no actions of the defendants contributed to the delay leading up to the first trial date in December of 2012 or the second trial scheduled for November of this year. Had the trial started on December 4, 2012, the overall length of institutional delay (i.e. the time that both parties were available but the court was not available to accommodate them) would have been approximately 6 months, and within the acceptable time frame for matters in this court.

(c) Actions of the Crown

[22] As I stated at the outset, the first trial date was adjourned due to the outstanding disclosure of the surveillance videotape. The Crown's position is that the applicants ought to have requested disclosure of the videotape prior to the first day of trial.

[23] When the defence requests an adjournment for outstanding disclosure, the court must assess what was outstanding, when and in what circumstances the disclosure was requested, and whether its disclosure is mandated by the Crown's constitutional duty of disclosure: see R. v. N.N.M., [2006] O.J. No. 1802 (C.A.).

[24] There is no dispute that the videotape was potentially relevant evidence and the Crown was required to disclose it. The police were made aware of the potential for surveillance evidence by the complainant, Mr. Samotulka, early in their investigation. In his statement to police, Mr. Samotulka stated that he had told his assailants that they were on video surveillance. This witness's statement was disclosed to the defendants in a timely manner.

[25] Detective Hill is one of the investigating officers in this case. In his statement, Detective Hill says that he received a call from Mr. Samotulka on August 3, 2011 advising there may be a video surveillance tape but that the witness was not able to retrieve it from his system. Detective Hill states further that "arrangements were made to attend the residence to attempt to retrieve the surveillance pictures". This will-state was provided to defence counsel in the original disclosure package in August of 2011.

[26] On August 8, 2011, Detective Coleman attended the residence of Mr. Samotulka and downloaded a video of the event in question. He did not review this video until August 22, 2012. He did not provide a copy of the DVD or his will-state to the Crown until December 5, 2012, the day after the trial was scheduled to commence. No explanation has been provided for late disclosure of this officer's statement and the DVD.

[27] On January 24, 2012, Mr. Manek wrote to the Crown and asked that "DVD disclosure" be provided to him. Nancy Turcotte, a legal administrative assistant in the Crown's office responded to Mr. Manek that all available media disclosure was copied for counsel on January 26, 2012. A similar response was given to Mr. Read on January 23, 2012.

[28] The Crown argues that defence counsel ought to have been aware of the existence of a videotape from the disclosure provided to them. It argues that counsel's failure to make any specific requests or inquiries as to whether the police were able to obtain the videotape contributed to the need to adjourn the first trial. Therefore the delay between the first and second trial does not fall solely at the feet of the Crown.

[29] In support of this argument, the Crown relies on R. v. Dixon, [1998] 1 S.C.R. 244, wherein the Supreme Court of Canada held that defence counsel has an obligation to exercise due diligence in actively seeking and pursuing Crown disclosure. The Court held that when counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather they must diligently pursue disclosure. When the defendant fails to do so and its failure contributes to the necessity for an adjournment, it bears equal responsibility with the Crown for that adjournment.

[30] Defence counsel takes the position, which I accept, that they had no way of knowing of the existence of the tape until December 3, 2012 when they were alerted to it by Ms. Rose. Although the initial disclosure made reference to the potential existence of a videotape, there was nothing to indicate that the police actually obtained the tape. Ms. Turcotte's response to counsel in January of 2012 that all available DVDs had been disclosed confirmed their belief that no such surveillance tape existed. Indeed even the Crown was not aware of its existence until December 3, 2012. In the circumstances of this case, I find that defence counsel acted diligently and cannot be faulted for failing to inquire further into the potential existence of the videotape.

[31] I conclude that the root cause of the adjournment of the first trial was the police failure to properly produce to the Crown all relevant evidence in its possession. The Crown was not made aware of the tape's existence until December 3, 2012. The tape was eventually located and disclosed to defence counsel on January 4, 2013. As it turned out, the tape proved to be of little to no value because of its poor quality. However, the applicants were not aware of this until they received the tape. The fact that it turned out to be of no value does not undermine or invalidate defence counsel's decision to seek an adjournment of the first trial date so they could either obtain the video, or consider bringing a s. 7 "lost evidence" application. Accordingly, I conclude that the Crown bears sole responsibility for the entire period of delay from December 4, 2012 to November 28, 2013.

(d) Institutional Delay – Limits on Institutional Resources

[32] In Morin, the Supreme Court of Canada has clearly held that systemic or institutional delays are attributable to the Crown and cannot be relied upon to excuse delay. For trials in the Ontario Court of Justice, a delay of 8 to 10 months was deemed to be acceptable. This is only a guideline and is not meant to be a ceiling, threshold or limitation period. Longer periods may be justified, depending on the complexity of the case.

[33] Young persons do not have a special constitutional right to a trial within a reasonable time that differs substantially from adults. It is understood that youths should generally be brought to trial more quickly, as they may suffer greater prejudice if the trial is unduly delayed. See R. v. M.(G.C.), [1991] O.J. No. 885 (C.A.), paragraphs 23 and 24; R. v. T.R., [2005] O.J. No. 2150 (C.A.).

[34] In this case, the second trial date is scheduled to start on November 6, 2013. This is 11 months after the adjournment of the first trial. In R. v. R.M., [2003] O.J. No. 4240, the Court of Appeal held that where a case is at risk due to the scheduling of a second trial date, there is a duty on all participants in the case - Crown counsel, defence counsel and the presiding judge - to take whatever steps are necessary to ensure that a section 11(b) breach does not occur. This may require the Crown to assess the priority it will give to the case at risk over other matters already scheduled for trial. Unfortunately, that did not occur in this case, and the trial is now scheduled to start on November 6, 2013.

[35] I therefore attribute a total of 17 months of delay to a combination of limits on institutional resources and to the actions of the Crown in failing to provide disclosure of the surveillance videotape in a timely manner.

(4) Prejudice to the Defendants

[36] The concept of prejudice underlies the right to be tried within a reasonable time.

[37] In R. v. Godin, 2009 SCC 26 at paragraph 30, the court held:

"Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person in the sense of being free from stress and the cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise raise a defence".

[38] The Court further held that the question of prejudice cannot be considered separately from the length of the delay. Even in the absence of specific evidence or actual prejudice, prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn.

[39] In considering the issue of prejudice, I bear in mind that I must take into account prejudice resulting from delay in processing these charges rather than prejudice arising from the charges being laid. It is sometimes difficult to separate these two types of prejudice. The longer a charge is pending, the more one can be prejudiced from the delay in bringing that charge to a conclusion. I find that to be the case in the matter before me.

[40] Prior to these charges, the youths had no criminal record. They were released on August 4, 2011 on bail with sureties and on strict conditions, including a curfew of 9:00 p.m. to 7:00 a.m. daily. Q.F. has twice been charged with breaching his curfew. It goes without saying that the longer the youths are subjected to strict bail conditions, the greater the risk of being charged with breaching their conditions of release and the greater the risk to their liberties.

[41] As stated earlier, when considering prejudice in the 11(b) analysis, a court must consider the special needs of a young person and examine the speed with which the participants in the system have acted to meet those needs. As observed by then Associate Chief Justice Osborne in R. v. M. (G.C.) at paragraph 23:

"…it seems to me that, as a general proposition, youth court proceedings should proceed to a conclusion more quickly than those in the adult criminal justice system. Delay, which may be reasonable in the adult criminal justice system, may not be reasonable in the youth court. There are sound reasons for this. They include the well established fact that the ability of a young person to appreciate the connection between behaviour and its consequences is less developed than an adult's. For young persons, the effect of time may be distorted. If treatment is required and is to be made part of the Young Offenders Act disposition process, it is best begun with as little delay as is possible".

[42] Justice Osborne went on to state that in general, youth court cases should be brought to trial within five to six months, after the neutral period required to retain and instruct counsel, obtain disclosure, etc. He stressed that these are administrative guidelines only and that systemic or administrative delay guidelines must not be applied as a ceiling, threshold or limitation period. The required balancing of the Askov factors must be undertaken in every case.

[43] In the case before me the length of the delay is 17 months, well outside what is considered reasonable even for adult cases in the Ontario Court of Justice. Even if I consider that these defendants are older youths whose perception of time and the connection between behaviour and its consequences are more like that of adults, a delay of 17 months still gives rise to the inescapable conclusion that they have been prejudiced.

The Remedy

[44] The task of this court in deciding whether proceedings against the defendants should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial, against the defendants' and society's interest in having the charges adjudicated promptly and fairly. The accused are facing serious charges and there is a strong societal interest in having the matter adjudicated on its merits. On the other hand, there has been an unreasonable delay of 17 months in bringing this matter to trial, a period well in excess of the guidelines established by the Supreme Court of Canada.

[45] For non-section 11(b) Charter breaches, a stay is the remedy of last resort to be reserved for the clearest of cases. However, a different test applies in the case of a breach of s. 11(b). There, a stay is the "minimal remedy" and it has been held that "[n]o flexibility exists; a stay of proceedings must be ordered": see Rahey v. The Queen, [1987] 1 S.C.R. 588, at p. 615; R. v. Thompson, 2009 ONCA 771, at paragraph 5.

Conclusion

[46] In this case there is a combined institutional and Crown delay of 17 months, a period in excess of the upper end of acceptable delay for cases in this court. Balancing the various factors, especially the fact that a significant portion of the delay is attributable to the Crown's failure to disclose relevant evidence, the delay is unreasonable. The seriousness of the offence and society's interest in a trial on its merits do not outweigh the other factors, including the actual and inferred prejudice to the defendants from the 27-½ months it will take to complete the trial. Accordingly, a stay is the only appropriate remedy and I hereby stay the charges against the defendants.

Released: October 28, 2013

Signed: "Justice M. Speyer"