Court File and Parties
Court File No.: 12-01546 Central East Region – Newmarket
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Ali Amiri
Application for Stay of Proceedings s. 11(b) and s. 24(1) of the Canadian Charter of Rights and Freedoms
Before: Justice Peter C. West
Oral Submissions Heard: May 6, 2013
Ruling Given: May 10, 2013
Counsel:
- Ms. M. Montemurro for the Crown
- Mr. A. Amiri acting on his own behalf
WEST J.:
Introduction
1On February 1, 2012, Mr. Amiri was charged with criminal harassment in relation to Ms. Nargis Rasuli, between January 19, 2012 and February 1, 2013. Mr. Amiri was released from the police station with a first appearance on March 1, 2012 in Courtroom 205 in Newmarket Courthouse. The information was sworn and confirmed on February 17, 2012.
2The Applicant applies for an order staying the proceedings pursuant to s. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms. Where a defendant contends that he has not been tried within a reasonable time, the onus is upon him to establish the alleged violation of s. 11(b) of the Charter.
3Section 11(b) provides that:
Any person charged with an offence has the right to be tried within a reasonable time.
4The total time between the laying of the charge and the estimated end of the trial is 15 months and 10 days. The total period of time from the laying of the charge until the anticipated end of the trial certainly raises the issue of reasonableness having regard to the fact that this is not a complex case. The issue which arises in the case at bar, is whether the delay attributable to the Crown and institutional delay is unreasonable thereby violating the defendant's right be tried within a reasonable period of time pursuant to s. 11(b) of the Charter.
Relevant Dates
February 1, 2012 — Mr. Amiri is charged by police with criminal harassment.
February 17, 2012 — Information #12-01546 is sworn.
March 1, 2012 — First appearance, disclosure provided and an Unrepresented Judicial Pre-trial is set.
March 13, 2012 — Unrepresented Judicial Pre-trial held before Justice Chisvin. August 3, 2012 set for Crown application under s. 486.3(4) and defence Charter application dealing with disclosure of DVD statement by complainant.
August 3, 2012 — No defence Charter application for disclosure is brought by Mr. Amiri. Crown application under s. 486.3(4) is dated August 2, 2012 and Mr. Amiri objects he has not been given proper notice. Justice Armstrong adjourns Crown application to August 22, 2012.
August 22, 2012 — Justice Armstrong hears Crown's application pursuant to s. 486.3(4). Mr. Amiri opposes appointment of counsel and files response. Justice Armstrong grants the Crown application as Mr. Amiri had not demonstrated that the proper administration of justice required Mr. Amiri to personally cross-examine the complainant.
October 12, 2012 — Mr. Amiri appears for his trial, Justice Minard is the trial judge. Mr. Amiri objects to Justice Armstrong's order under s. 486.3(4) and the Crown renewed its application pursuant to s. 486.3(4.1) before Justice Minard. Justice Minard ordered that Mr. Starrer be appointed as counsel to cross-examine the complainant. Mr. Amiri brought a disclosure application, which is dismissed after submissions. After the recess, Mr. Amiri served Justice Minard with an application for certiorari in the Superior Court. The trial was therefore halted and adjourned to November 1, 2012 to determine the progress of the certiorari application and perhaps set a target date for the trial.
October 29, 2012 — Mr. Amiri appears before Justice McCarthy in the Superior Court. Despite being advised on October 12, 2012 that he would need to obtain the transcripts from October 12 and August 22, 2012, Mr. Amiri had not done so. The certiorari application was therefore adjourned to December 3, 2012.
November 1, 2012 — Mr. Amiri attended before Justice Minard and advised that the certiorari application was adjourned to December 3, 2012 because transcripts were not available. Target trial date is set for December 18, 2012. Justice Minard adjourns criminal harassment charge to December 7, 2012 for Mr. Amiri to advise on the progress of the Superior Court application.
December 3, 2012 — The certiorari application is begun before Justice M. Fuerst. The hearing is adjourned to December 17, 2012 at Justice Fuerst's request, in order to obtain August 3, 2012 transcript.
December 7, 2012 — Justice Minard advised of adjournment of certiorari application for hearing on December 17, 2012. Justice Minard indicates that if Mr. Amiri's application is allowed, it is not likely that the trial will be able to proceed on December 18, 2012.
December 17, 2012 — Justice Fuerst quashes s. 486.3(4) order and remits matter back before Justice Minard.
December 18, 2012 — Justice Minard sets new dates for March 15, 2013, for the s. 486.3(4) Crown application and May 10, 2013, for Mr. Amiri's trial.
March 15, 2013 — Crown s. 486.3(4) application heard before Justice West, order appointing Elliott Starrer as counsel to cross-examine complainant as Mr. Amiri did not satisfy Justice West, on a balance of probabilities, that the proper administration of justice required that Mr. Amiri conduct the cross-examination of the complainant personally. May 6, 2013 is set for Mr. Amiri to bring a s. 11(b) Charter application for a stay because his trial was not heard within a reasonable period of time.
May 10, 2013 — This is the scheduled trial date before Justice West.
Legal Framework
5Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of 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 the proceedings occur while evidence is fresh and available. See R. v. Morin; R. v. Qureshi et al.
6Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. See R. v. MacDougall and R. v. Qureshi et al., supra.
7As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin, supra at p. 13. While society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that the trials for such offences are held in a timely fashion: R. v. Kporwodu.
8To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin, supra, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:
- 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; and
- prejudice to the accused.
9In R. v. Seegmiller, the court observed:
The determination of what constitutes a "reasonable" time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the "reasonableness" of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pre-trial delay will constitute unreasonable delay for constitutional purposes.
10The Supreme Court of Canada has provided guidelines to assist in the s. 11(b) analysis. For trials held in the Ontario Court of Justice, the guideline for institutional delay is 8-10 months: Morin, supra, p. 21. The Ontario Court of Appeal has recently affirmed that 8-10 month guideline, bearing in mind that the guidelines were not meant to have the force of judicially created limitation periods: R. v. Kovacs-Tatar.
11The instant application requires a judicial balancing with an examination of the delay and its evaluation in light of other factors in order to determine whether the delay is reasonable. Some delay is of course inevitable in the conduct of criminal proceedings: Smith v. The Queen. The court's approach must recognize that the standard of reasonableness is a flexible concept. Mathematical formulae do not drive the assessment of reasonableness.
Length of the Delay
12The time from the arrest date (February 1, 2012) to the trial date (May 10, 2013) was just over 14 months. That amount of time requires an examination of the Morin factors.
Waiver of Delay
13There has been no express waiver of delay by the defence in this case. In fact, Mr. Amiri on the first appearance on March 1, 2012 expressed a desire to set the earliest date possible for his trial.
Reasons for the Delay
(a) Inherent Time Requirements
14All criminal cases have certain inherent time requirements which inevitably lead to delay: Morin v. The Queen, supra, at 16 per Sopinka J. Not uncommon in the Ontario Court of Justice is the need for time to process the charge, to retain counsel, to apply for bail, to prepare and distribute disclosure materials and other pre-trial procedures such as the holding of a Crown resolution meeting and a judicial pre-trial conference. This case exhibits many of these features which legitimizes some delay on their account. These intake steps occasion inherent time requirements.
15On the first appearance Mr. Amiri had his charge traversed from the intake court, courtroom 205, to the administrative court, courtroom 201, as he wished to set a date for his trial. He had only just received disclosure and was advised by the Crown that the DVD statement of the complainant would only be provided to counsel. Mr. Amiri advised that he was not retaining counsel and the Crown indicated that Mr. Amiri could attend at the Crown's office in a private room to watch the DVD statement of the complainant. I will have more to say about this later in my reasons.
16The Crown had assessed that the trial would take a day and indicated that an unrepresented judicial pre-trial would be beneficial in determining the length of the trial, the number of witnesses and what pre-trial motions might be necessary. Justice Bourque agreed and suggested that the earliest date possible for a judicial pre-trial be set. March 13, 2012 was the date offered. Mr. Amiri agreed that this date be set for an unrepresented judicial pre-trial.
17In R. v. Tran, the Ontario Court of Appeal dealt with the issue of judicial pre-trials and made the following observations:
…requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.
18I agree with the Court of Appeal and in my view, a two week adjournment to have an unrepresented judicial pre-trial is part of the intake period and the inherent time requirements to reach a position where a trial date can be properly set. Therefore the time period between the laying of the charge of criminal harassment (February 1, 2012) and the completion of the judicial pre-trial (March 13, 2012) is reasonable and should be considered to be neutral. (Neutral delay: 42 days)
19The result of the judicial pre-trial was that two dates were set: August 3, 2012 was to be a date when the Crown was to bring an application pursuant to s. 486.3(4) of the Criminal Code and Mr. Amiri was to bring a Charter application respecting disclosure relating to the release of the complainant's DVD statement to Mr. Amiri personally. A trial date for October 12, 2012 was also set.
(b) Actions of the Accused
20It is on August 3, 2012 when Mr. Amiri's trial began to go off track. Part of the court record is a Crown Notice of Application, dated May 17, 2012, seeking an order pursuant to s. 486.3(4) appointing counsel to cross examine the complainant. Apparently Mr. Amiri never received this application and the Crown only became aware that it had not been served on Mr. Amiri just before August 3, 2012 and consequently, a new Notice of Application was served on August 2, 2012. Mr. Amiri objected to not being provided proper notice and Justice Armstrong adjourned the application to August 22, 2012.
21During the course of submissions before me and in some of the transcripts filed on this s. 11(b) application, Mr. Amiri has advised the court that he works as a paralegal representative and has appeared in courts representing clients.
22On August 22, 2012, the Crown's application was heard by Justice Armstrong. Mr. Amiri filed a response objecting to the appointing of counsel to cross-examine the complainant pursuant to s. 486.3(4). After submissions were completed Justice Armstrong ruled that Mr. Amiri had not shown why the proper administration of justice required Mr. Amiri to cross-examine the complainant and Mr. Elliott Starrer was appointed as counsel. Mr. Amiri advised Justice Armstrong that he planned to bring a certiorari application in the Superior Court once he entered a plea.
23On October 12, 2012, Mr. Amiri appeared for his trial before Justice Minard. Mr. Starrer advised Justice Minard that Mr. Amiri had not met with him but he had received full disclosure from the Crown and was prepared to cross-examine the complainant. Mr. Amiri had brought a disclosure application, which the Crown did not respond to as all of the items of disclosure he requested had been either provided to Mr. Amiri (paper disclosure, which included transcripts of the complainant's DVD statement and Mr. Amiri's statement and DVD of Mr. Amiri's statement) or to Mr. Starrer (DVD of complainant's statement and of Mr. Amiri's statement and paper disclosure).
24Mr. Amiri advised Justice Minard that Justice Armstrong's order pursuant to s. 486.3 was not binding as Justice Armstrong was not the trial judge. The Crown then advised Justice Minard that she would renew her application. Mr. Amiri submitted that this was not proper as he needed to file a response to the Crown's application. He therefore would need an adjournment of the trial. Mr. Amiri also advised that he wished to cross-examine the affiant of the affidavit filed in support of the application. Justice Minard considered the application by the Crown and in oral reasons ordered that counsel, Mr. Elliott Starrer be appointed to cross-examine the complainant. He did not address Mr. Amiri's request to cross-examine the affiant. Justice Minard then dealt with Mr. Amiri disclosure motion, which he dismissed.
25A recess was called after which Mr. Amiri served Justice Minard with an application for certiorari in the Superior Court, respecting his s. 486.3(4) order. The proceedings came to an end and the trial did not proceed. Mr. Amiri advised that the certiorari application was scheduled to be heard on October 29, 2012. Justice Minard adjourned the trial before him to November 1, 2012 for the purpose of setting a new date for trial in the event the Superior Court had ruled on Mr. Amiri's certiorari application. Justice Minard also advised Mr. Amiri that he would need to order the transcript from October 12, 2012 as well as the proceedings before Justice Armstrong and his ruling on August 22, 2012. Mr. Amiri acknowledged he was aware he needed those materials for the certiorari application in the Superior Court.
26On October 27, 2012, Mr. Amiri filed a factum in the Superior Court respecting the certiorari application, which now included issues pertaining to Justice Armstrong's appointment of counsel pursuant to s. 486.3(4); Justice Minard's jurisdiction to appoint counsel without giving Mr. Amiri 15 days to provide a response; Justice Minard's error in failing to allow Mr. Amiri to cross-examine the affiant on the Crown's application under s. 486.3(4); Justice Minard's dismissal of the disclosure application and his refusal to grant an adjournment because the Crown refused to provide Mr. Amiri with a copy of the complainant's DVD statement.
27On October 29, 2012, Mr. Amiri and the Crown, Ms. Montemurro appeared before Justice McCarthy in the Superior Court. Out of an abundance of caution, the Crown had ordered both of the above-noted transcripts. The transcript from October 12, 2012 had been filed with the Superior Court on October 25, 2012 by the Crown but the transcript from August 22, 2012 would not be ready until November 5, 2012. Mr. Amiri had not ordered any of the transcripts as he had indicated he would. Consequently, the certiorari application was adjourned to December 3, 2012 at Mr. Amiri's request. Mr. Amiri had filed a factum on October 27, 2012 on his certiorari application.
28On November 1, 2012, Mr. Amiri appeared before Justice Minard around 12 noon and Ms. Montemurro advised that the Superior Court proceeding had been adjourned to December 3, 2012 and that Mr. Amiri was to ensure that a proper record be filed with the court. Justice Minard then suggested that the matter be adjourned until a date after December 3, 2012 to ensure that the certiorari application had been dealt with before setting a trial date. Ms. Montemurro suggested that perhaps a target trial date could be set in anticipation of the Superior Court proceeding being concluded. Justice Minard agreed to set a date on the understanding that if Mr. Amiri's certiorari application was successful then the target trial date would be adjourned but if he was unsuccessful then the trial could proceed. Mr. Amiri indicated he understood what was being suggested.
29Initially Mr. Amiri and Ms. Montemurro were looking for a target trial date in the New Year; however, because of Justice Minard's schedule the earliest date would be in March 2013. Consequently, it was suggested that December 18, 2012 be the target trial date as a preliminary hearing that Justice Minard was involved in did not require all of the dates that had been set. December 7, 2012 was selected as an intervening date to determine the status of the Superior Court proceedings. Mr. Amiri wanted the transcript of the proceeding before Justice Armstrong to be provided to the Superior Court and he was advised again it was his responsibility to obtain that transcript.
30On December 3, 2012, the Superior Court certiorari application was heard before Justice Fuerst. I have been advised by Ms. Montemurro and Mr. Amiri during submissions, as Mr. Amiri did not obtain any of the transcripts pertaining to the Superior Court proceedings, that Justice Fuerst was of the opinion that the August 3, 2012 transcript of the original proceedings before Justice Armstrong would be of assistance to her and the matter was again adjourned to December 17, 2012.
31On December 7, 2012, the matter was once again before Justice Minard. Mr. Amiri was again late arriving in court. Justice Minard was advised that the Superior Court proceeding had commenced before Justice Fuerst and was continuing on December 17. Mr. Amiri advised Justice Minard that if he was successful in his application then it was unlikely that the trial would be able to proceed the very next day. Further, if he was unsuccessful it was his plan to appeal to the Court of Appeal. Justice Minard advised Mr. Amiri that would be up to him and cautioned him about being on time. Justice Minard further advised that if Mr. Amiri's certiorari application was successful it would affect how matters proceeded on December 18.
32On December 17, 2012, Justice Fuerst ruled that because Justice Armstrong did not end up being the trial judge and there was nothing in the record to suggest that he was acting in case management capacity when he made his s. 486.3(4) order on August 22, 2012, his order was not binding on Justice Minard. However, she held that Justice Minard did have jurisdiction to hear the Crown's renewed s. 486.3(4) application and that an adjournment to allow Mr. Amiri time to file a response was unnecessary as he had already done so before Justice Armstrong and Mr. Amiri was therefore not prejudiced in any way. Justice Minard did err by not allowing Mr. Amiri to cross-examine the affiant to the affidavit filed in support of the Crown's application. Therefore, the order made by Justice Minard was quashed and the matter was remitted before him for a rehearing.
33On December 18, 2012, Justice Minard was advised of Justice Fuerst's ruling and provided with a copy of her endorsement. Mr. Ventola, who was a law student working in the Crown's office and the affiant of an affidavit filed in support of the Crown's application under s. 486.3(4) was not present as the Crown did not know how to find him. A new date for the Crown's s. 486.3(4) application was set for March 15, 2013 to allow Mr. Amiri an opportunity to cross-examine the affiant of the affidavit filed in support of the Crown's application.
34Initially the date of February 12, 2013 was set for the s. 486.3(4) application and March 15, 2013 was set for the trial; however, it was Mr. Amiri's position when these dates were put before Justice Minard that there was not sufficient time (2 hours) for the application to be completed and therefore March 15, 2013 should be used for the application and another date should be set for the trial. Justice Minard acceded to Mr. Amiri's request and a new trial date was set for May 10, 2013.
35Mr. Amiri then raised disclosure issues, namely, the failure of the Crown to provide him a DVD of the complainant's statement and copies of the Facebook messages the complainant referred to in her statement. Mr. Amiri had been provided a transcript of the complainant's DVD statement and the DVD had been provided to Mr. Starrer, as had the Facebook messages and Mr. Amiri was told he could view the DVD, either with Mr. Starrer or alone, in the Crown's office. Mr. Amiri had not availed himself of viewing the DVD, either with Mr. Starrer or alone. Mr. Amiri took the position that the Crown's comments were premature given that Mr. Starrer had not yet been appointed as counsel to cross-examine the complainant. If he was appointed on May 15 then it was Mr. Amiri's position that there would be no further obligation on the Crown to provide the disclosure he was requesting. Further, it was Mr. Amiri's position that the Crown had not filed a response to his disclosure application, which the Crown was required to do by the rules. The Crown then advised that she was agreeable to providing Mr. Amiri with copies of the four pages from Facebook.
36Justice Minard ruled that Crown had complied with their disclosure obligation by providing a transcript of the complainant's statement and an opportunity for Mr. Amiri to view the statement in the Crown's office. Mr. Amiri's application was therefore dismissed.
37In my view, the failure by Mr. Amiri to order the appropriate transcripts for the certiorari application directly affected the target trial date of December 18, 2012. The trial could not proceed on that date because Mr. Amiri's application had been granted and the s. 486.3(4) order was quashed and there was no time to subpoena the witnesses to be cross-examined by Mr. Amiri on the Crown's s. 486.3(4) application. If Mr. Amiri had ordered the transcripts as he advised he would on October 12, the hearing would have proceeded on October 29, 2012 before Justice McCarthy. If the ruling had been in Mr. Amiri's favour there would have been sufficient time to arrange for a date when the cross-examination of the affiant could take place prior to the target trial date.
38Consequently, I find that the time between October 12, 2012 and October 29, 2012 is neutral as this was required to put the proper and necessary materials before the Superior Court. (Neutral delay: 18 days)
39I further find that the delay between October 29, 2012 and December 3, 2012 was directly caused by Mr. Amiri's failure to order the necessary transcripts for his certiorari application in a timely and expeditious manner. Mr. Amiri agreed that the December 18, 2012 trial date would not proceed if he was successful on his application as it was being heard on December 17, 2012 because of his actions, which was the day before the target trial date. (Actions of Accused: 36 days)
40I agree with the Crown that the delay from December 3 to December 17, 2012 as a result of Justice Fuerst determining that the August 3, 2012 transcript of the proceedings before Justice Armstrong would be helpful to her should be considered as neutral. (Neutral: 14 days)
41Mr. Amiri advised that he planned to bring a s. 11(b) Charter application because of delay. May 6, 2013 was set for the hearing of that motion and Mr. Amiri was advised that he was to prepare the proper documentation; namely, Notice of Application, Factum and transcripts of the relevant proceedings. There are only 3 transcripts that were prepared after March 30, 2013 (March 1, 2012; November 1, 2012; and March 15, 2013) the latest of which was April 10, 2013. Mr. Amiri did not provide the various transcripts until April 30, 2013 and did not serve his Factum on the Crown by email until May 1, 2013. The court copies were not served and filed until May 3, 2013. I was advised in the Crown factum and Mr. Amiri agreed that he had suggested to the Crown in his email that because he had not complied with the rules concerning his serving and filing he would understand if the Crown wanted an adjournment and of course, he would waive any delay between May 10, 2013, the currently scheduled trial date, and the new trial date set. The Crown prepared their response and provided it to the court on May 6, 2013 and as a result the trial date was not adjourned.
(c) Actions of the Crown
42In my view, the actions of the Crown did not contribute to the circumstances that prompted Mr. Amiri to bring a certiorari application to quash the s. 486.3(4) order of Justice Minard. Further, the fact that the Crown had applied before Mr. Justice Armstrong on August 22, 2012 for an order under s. 486.3(4) did not cause any delay in the trial date set for October 12, 2012. If Justice Armstrong had been the trial judge on October 12, 2012, his order would have been proper. Further, if Justice Armstrong had indicated on the record that he was acting in the capacity of a case management judge, pursuant to s. 551.3 of the Criminal Code, his order would have been proper.
43Mr. Amiri's disclosure applications were dismissed by Justice Minard, as the trial judge on two occasions, and by Justice Fuerst on the certiorari application. I find that nothing done by the Crown respecting disclosure caused any delay in this case.
44In fact, on March 15, 2013, the Crown brought a new s. 486.3(4) application and Mr. Amiri was permitted an opportunity to cross-examine the affiant of the affidavit filed in support of that application. After reviewing the written submissions by the Crown and Mr. Amiri and considering the oral submissions made by the Crown and Mr. Amiri, I ruled that Mr. Amiri had not demonstrated on a balance of probabilities that the proper administration of justice required that Mr. Amiri be permitted to personally cross-examine the complainant. I appointed Mr. Elliott Starrer. This was the third order under s. 486.3(4) made by the Ontario Court of Justice.
45What is interesting is that since my order Mr. Amiri has not spoken to Mr. Starrer to provide him instructions respecting the cross-examination of the complainant. Further, he has not attended the Crown's office, either with Mr. Starrer or alone, to review the DVD for which he has brought at least three applications for the disclosure. He advised me on May 6, 2013, during the hearing of his s. 11(b) application, that he did not intend on viewing this DVD prior to the trial date, which is May 10, 2013.
(d) Institutional Delay
46In my view, the delay between March 13, 2012 and October 12, 2012 is as a result of a lack of institutional resources. Mr. Amiri, on March 1 and March 13 indicated clearly that he wanted the earliest trial date that was available to the court. The earliest date was 213 days away. (Institutional delay: 213 days) Of course, if the trial had proceeded on October 12, 2012, there would have been no delay necessitating or justifying a stay under s. 24(1) of the Charter.
47I have dealt with the delay between October 12, 2012 to December 18, 2012 above. With respect to the delay between December 18, 2012 and May 10, 2013 (143 days), it is not simply a matter of determining whether this period of time was created as a result of a lack of institutional resources. The trial co-ordinator had offered earlier dates for the Crown application (January 22, 2013, Mr. Amiri was not available) and (February 12, 2013, which was originally selected) and March 15, 2013 for the trial. Mr. Amiri submitted to Justice Minard that he did not believe that February 12, 2013 had sufficient time to allow for the cross-examination of the affiant(s) and consequently, the trial date was changed from March 15 to May 10, 2013. It was as a result of his submissions concerning the time required to deal with what was a third s. 486.3(4) application that the trial date was adjourned a further 56 days to May 10, 2013. I am of the opinion that all of the delay between March 15, 2013 and May 10, 2013 should be attributed to the actions of Mr. Amiri. (Actions of accused: 56 days)
48I am of the view that Mr. Amiri, as I have already indicated, bears some responsibility for the target trial date of December 18, 2012 being lost, as a result of his failure to expeditiously obtain the necessary transcripts. Further, Mr. Amiri admitted during his appearances on November 1, 2012 and December 7, 2012 that the target trial may not be able to proceed if his application was successful. It is my view that the repeated adjournments of the certiorari application resulted from Mr. Amiri's failure to order and obtain the necessary transcripts in a timely and expeditious fashion.
49Consequently, some portion of the delay between December 18, 2012 and March 15, 2013 should be attributed to the actions of Mr. Amiri as it was his failure to order the transcripts for the certiorari application that caused the target trial date to be lost. I therefore attribute one half of this delay to the actions of Mr. Amiri and one half to institutional delay. (Actions of the accused: 43 days; Institutional delay: 44 days)
50Further, Mr. Amiri's desire for the earliest trial date has eroded to a certain degree as a result of his failure to comply with the Court's rules respecting the filing of the Notice of Application and his factum on the s. 11(b) Charter motion. (see paragraph 41, supra.) He could have filed his materials 30 days prior to the May 6, 2013 date, with the exception of 2 transcripts, which he could have provided on April 10, 2013, the date they were prepared. It is my view that his willingness to have the trial adjourned and bear the responsibility for any delay occasioned demonstrates this.
51The Crown has submitted that there is a pattern of behaviour on the part of Mr. Amiri that demonstrates that he does not want an early trial date; in fact, he has done everything to ensure that the trial does not go ahead. She points to Mr. Amiri's actions during the many criminal proceedings relating to his charge of criminal harassment, including: his failure to get the transcripts for the certiorari application in a timely fashion; his failure to properly serve and file his s. 11(b) application; his failure to view the one piece of disclosure he has maintained should have been provided to him personally, the complainant's DVD; his failure and refusal to meet with Mr. Starrer, who has been appointed on three occasions (August 22, 2012, October 12, 2012 and March 15, 2013) and his indication to the Crown that he will be bringing a Charter application or applications on May 10, 2013, when he has demonstrated his understanding and knowledge of the Rules of the Ontario Court of Justice.
Prejudice
52Prejudice 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 the stress and 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 to raise a defence. See R. v. Godin.
53The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice"prejudice may be inferred from the length of the delay." See R. v. Godin, supra, paragraph 31.
54Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred. See R. v. Godin, supra, paragraph 38.
55Mr. Amiri has not provided an affidavit attesting to any actual prejudice he has suffered as a result of the delay in having his trial take place. When I asked him what actual prejudice he might have suffered, he advised me that if he was convicted of criminal harassment he would lose his license to practice as a paralegal licenced by the Law Society of Upper Canada. This, of course, is not the kind of prejudice contemplated by the Supreme Court in Godin, supra or the Court of Appeal in Kovacs-Tatar, supra.
Conclusion
56The total length of time from the arrest of Mr. Amiri on February 1, 2012 to the scheduled trial date, May 10, 2013 is 464 days. In reducing this number by what I have determined to be neutral delay of 74 days and the actions of the accused, Mr. Amiri, of 135 days the actual delay is 255 days or approximately 8½ months, which is clearly within the guidelines set by the Supreme Court of Canada. Consequently, considering and weighing all of the factors that have to be balanced it is my view that Mr. Amiri has not met his onus of showing that the delay was unreasonable and the motion is dismissed.
Released: May 10, 2013
Signed: "Justice Peter C. West"