Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Chung Van Dang and Thi Chi Bui
Before: Justice R. Bigelow
Heard on: October 24, 2014
Reasons for Judgment released on: October 30, 2014
Counsel:
- M. Nassar — counsel for the Crown
- K. Scofield — counsel for the accused Chung Van Dang
- G. La Fontaine and L. Thomas — counsel for the accused Thi Chi Bui
Judgment
Facts and Charges
1Mr. Dang and Ms. Bui are charged in an Information alleging that on or about 22 April, 2013 they unlawfully had in their possession for the purpose of trafficking cannabis marijuana and further that on the same date they had in their possession proceeds of crime to wit: $46,030 in Canadian currency.
2The charges were laid after the execution of a search warrant at a residence alleged to be that of the accuseds and a vehicle associated with that residence. A total of over 5 kilogram of marijuana was seized as well as a large sum of money alleged to be proceeds of crime.
3Counsel on behalf of both the accuseds have brought an application for a stay of proceedings based on an allegation of a violation of their clients rights pursuant to section 11(B) of the Charter of Rights and Freedoms.
Procedural History
4The history of the matter is not seriously in dispute and is summarized in Appendix A. Briefly put, the Accuseds were arrested on April 22nd 2013 and released on bail the following day. Both accuseds were represented from prior to their first appearance, although Ms. Bui changed counsel fairly early on in the proceedings due to the possibility of a conflict. At the second appearance on the 26th of June, 2013 counsel specifically requested disclosure of the ITO which was not finally disclosed until December 11, 2013. Throughout that time counsel for both the accuseds continuously requested disclosure of the ITOs and in fact scheduled two judicial pre-trials in November and December both of which were aborted due to the failure to disclose the ITOs.
5The Crown explains the delay in providing the ITOs firstly by pointing out that the Crown sought and obtained an ex parte Unsealing Order to expedite disclosure of the ITOs on June 25th but did not receive the ITOs until September 13 and submits that this time should be considered neutral. The Crown then submits that the delay between receiving the warrant and providing it to counsel should also be considered as inherent time requirements for the Crown to vet the ITOs.
6A judicial pre-trial was finally held on 14 January 2014 at which time trial dates of December 9 and 10th 2014 were scheduled along with a date of October 24, 2014 for both an 11(b) application and a Garofoli application.
7Both at and subsequent to the judicial pre-trial counsel for both the accuseds made repeated requests for further disclosure. No response was received to those requests until August 2014 when some further disclosure was provided. On 7 September counsel confirmed receipt of the further disclosure but indicated that they were still missing notes from police officers from both an earlier investigation in 2012 as well as from the days leading up to the arrest of the accused. Counsel also indicated in that letter that without receipt of that material they would not be in a position to properly prepare the Garofoli application. [1]
8The Crown did not reply to that request until approximately 1 week before the date scheduled for the hearing of the Garofoli application.
Legal Framework
9The factors to be considered by the court when considering an application for a stay of proceedings based on an alleged breach of section 11(b) of the Charter were set out by the Supreme Court of Canada in R v Morin where the court stated:
The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra"[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:
- 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.
These factors are substantially the same as those discussed by this Court in Smith, … and in Askov,.. . [2]
Analysis
The Length of the Delay
10The prosecution fairly concedes that the total delay from the commencement of these proceedings until the commencement of the trial of 19 months and 22 days justifies judicial scrutiny.
Waiver of Time Periods
11The prosecution also agrees that the applicants did not waive any time periods.
Reasons for the Delay
Inherent Time Requirements
Intake Period
12The intake period was defined by the Supreme Court of Canada in Morin as "activities such as retention of counsel, bail hearings, administrative work, disclosure, etc." [3] In this matter the bail hearing took place on the day following the arrest of the accused and counsel was retained and appeared at the first appearance after show cause. The Crown obtained an ex parte order for the unsealing of the ITOs filed in support of the search warrant applications executed in this matter on the day before the second appearance. Initial disclosure was provided on the second appearance and counsel for the accuseds requested disclosure of the ITOs.
13Leaving aside the issue of time required to unseal the ITO, which will be dealt with later, the normal intake processes were completed by the second appearance. Therefore, I find that the intake in this matter to be the time between the date of the swearing of the information and the 26th of June (65 days).
Other Inherent Time Requirements
14Inherent time requirements also include the time needed for mandatory judicial pre-trials and the time between when the court is ready to schedule a trial and the time when all parties would be able to commence the trial. [4] Two judicial pre-trials had to be adjourned due to the ITOs not having been disclosed so I am only prepared to consider the time between the 2nd abortive Judicial Pre-Trial and the final Pre-Trial as inherent time required for mandatory pre-trials. (December 6, 2013 to January 14, 2014 – 40 days)
15Defence counsel indicated that they would be able to commence a trial as of February 14th, 2014; therefore the time between January 14th and February 14th (33 days) is also inherent delay.
16I find inherent time requirements to be (65 + 40 + 33) 138 days.
Actions of the Accused
17The only action of the accused which the Crown alleged cause delay was the change of counsel by Ms. Bui leading to a delay in a Crown pretrial with new counsel. However, it should be noted that both the accused were in fact represented from their first appearance and in fact a Crown pretrial with respect to both the accused took place prior to the change in counsel. New counsel for Ms. Bui indicated quite reasonably that pre-trials without the ITOs would have very little purpose. In my view the change of counsel by Ms. Bui had no impact on the speed with which the matter proceded.
18Therefore, I find that the defence is not responsible for any of the delay.
Actions of the Crown
19The Crown received the ITOs from court support on 13 September and contacted the officer in charge asking for the affiant and to "come in to vet the search warrant" on the 19th September. [5] There is no evidence before the Court respect to what occurred between that date and the 12th December when the ITOs were finally provided to counsel. It is clear from the ITOs that the address in question first came to the attention of the police in another investigation in 2012 and the Crown in her submissions indicated that there was a confidential informant involved in that investigation.
20Ms. Nassar submits that this delay of almost 3 months is reasonable and should be considered neutral. In support of this she relies on a number of decisions from this court.
21In R v Beck [6] Justice Bovard determined that a period of two months was reasonable to vet the search warrant. It should be noted that in that case there was evidence before the court with respect to the process used by the Crown in vetting warrants which is not the case in this matter. It is also noteworthy that in considering the delay in vetting the warrant, Justice Bovard took into account a two week delay in the Crown receiving the warrant materials from the court after providing court support with an unsealing order.
22In the case of R v Tang Justice Caldwell accepted a three month delay in vetting the search warrant stating:
…Decisions regarding when and if to disclose material pertaining to an informant are among the most serious faced by the Crown given the potentially life-threatening consequences. It is irrelevant whether such consequences were a possibility in this particular case. As such, in my view, the court should be very careful about second-guessing the time required to make these decisions or the number of people who had to be consulted in order to make this determination.
Ultimately, it is for the defence to prove these matters on the balance of probabilities. The defence may argue that it is impossible in this instance as the defence clearly has no knowledge of the information that was added. That fact does not however, change the fact that the owner still lies with the defence. [7]
23However, in the case of R v Cheung Justice Green held that:
In my view, in the absence of an evidentiary foundation to infer otherwise, and consistent with the position I have earlier taken (see R v Morris, [2011] O.J. No. 1406 at paragraph 52), the ITO vetting, redacting and disclosure exercise should not have taken longer than four weeks. [8]
24As indicated above in the Beck case the court had evidence with respect to both the procedures used in the Crown's office to vet ITOs as well as specific information with respect to what had occurred in that case and the court in finding that 60 days was an appropriate time period included the time required to obtain an unsealing order as well as a delay in having the warrant provided to the Crown.
25Although there is no question of the serious nature of the responsibility on the Crown in vetting ITOs particularly where confidential informants are involved, in my view, that does not give the Crown carte blanche to take as much time as they wish to vet a warrant and despite the onus on the defence in Charter Applications, given that the explanation for delay, if any, is solely within the knowledge of the prosecution, I am in agreement with the reasoning of Justice Green that a time period of approximately four weeks is reasonable for the vetting process in the absence of evidence to suggest otherwise.
26In the case before the court the only evidence to suggest that a longer time would be necessary is that there was a prior investigation involving the location and that in that investigation some information was obtained from a confidential informant. Ms. Nassar submits that based on that information the Crown needed additional time to receive information from officers involved in that prior investigation in order to ensure that the ITO was properly vetted.
27I am prepared to agree that a period of six weeks would be a reasonable time to vet the ITO in this case based on the evidence before me. Therefore, I find that 42 of the 84 days between receipt of the ITOs and their disclosure falls at the feet of the Crown.
Limits on Institutional Resources
28The first available date the court was able to offer to the parties after the Judicial Pre-trial was December 9th, 2014 some 329 days away. However, counsel were not available to start the trial until February 14th therefore the institutional delay occasioned at this point was (329-31) 299 days or 9 months and 29 days.
Other Reasons for Delay
29As noted above, the Crown obtained an unsealing Order on June 25th, 2013 but did not receive the ITOs from court support until September 13th apparently due to one of the ITOs having been misfiled.
30Clearly the fact that a document in the care of the court has been misfiled is in no way the responsibility of the prosecution and despite the fact that there may have been alternative methods open to the Crown to commence the vetting process, I am not prepared to assign that delay to the Crown. However, the delay is certainly also not to be laid at the feet of the defence. In my view, this delay should be considered under institutional delay.
31Therefore, the total institutional delay in this matter is (299 + 80) 379 days or 1 year 14 days.
Total Delay Attributable to State Conduct (Institutional and Crown)
32I find the total delay attributable to the Crown (42 days) and Institutional delay (379 days) to be 1 Year and 56 days or just short of 16 months.
Prejudice to the Accused
33Both applicants filed affidavits in support of their claims of prejudice and were not cross examined on them.
34Ms. Bui avers that she is currently 57 years of age having been born in Vietnam in 1957. She moved to Canada in 1996 and became a Canadian citizen in 1999. Since her arrival in Canada she has worked in various types of employment including farming, warm picking and running a convenience store. She was working on a vegetable farm until December 2013 when she was terminated because she was too slow at the job. Since then she has been unemployed but is training in nail salon techniques and hopes to be able to return to work in a nail salon.
35She has two sons one of whom is her co-accused as well as a daughter. Her husband passed away in 1988.
36Prior to her arrest she lived with her daughter and son at the address where the offenses are alleged to have occurred. Since her release on bail she has been unable to return to that residence and has been required to reside with her surety in a small room above a nail salon where the smell from the salon seeps into her room giving her headaches.
37She and other members of her family have been under significant financial stress as a result of the charges. Her former residence has been the subject of a preservation order and although the property has now been sold, the proceeds of the sale are being held by the Superior Court pending disposition of these matters. Her son and daughter now reside at different residences some distance apart from her and all of their expenses have increased. As a result of their financial situation and living arrangements, she is unable to have as much contact with her family as she had previously. She also indicates that her doctor has recommended an increase in her blood pressure medication as well as sleeping pills to deal with the stress of the situation.
38Mr. Dang avers that he is 31 years of age having been born in Vietnam in 1983. He came to Canada with his family in 1996 and became a Canadian citizen in 1999. Prior to his arrest he was employed at a factory and resided with his mother and sister at the premises where the offenses alleged to occurred. Since his release on bail he has been living with his surety in topo and has been working as a construction worker in Mississauga.
39He also indicates that he as well as the other members of his family have been under significant financial stress since incurring the charges before the court. In particular he refers to legal fees for numerous unnecessary court appearances.
40He also states that he is unable to spend as much time with his family as previously and that this has cause significant stress.
41Ms. Nassar fairly points out that the court must differentiate between prejudice an accused suffers as a result of being charged with a criminal offense and prejudice an accused suffers from delay in proceeding with charges. She submits that there is really no prejudice here other than that suffered as a result of being charged.
42Defence counsel on the other hand suggest both that there is evidence of actual prejudice and the court can infer prejudice from the amount of delay.
43Although certainly some of the prejudice suffered by both the accused comes as a result of being charged, in my view, there is also some prejudice which has been suffered by both individuals as a result of the delay. The accused have had to pay legal fees for counsel attending court on numerous occasions when little or nothing was accomplished. They have also been forced to pay significantly higher living costs which continue to accumulate. Ms. Bui also has suffered certain medical issues as a result of the stress of having the matters outstanding for over a year and a half.
Conclusion
44As Justice Code pointed out in R v Lahiry [9]:
At the end of assessing these four factors, the Court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown. The court should also arrive at some assessment as to the strength or weakness of the claim to prejudice. It is only unreasonable periods of delay, causing prejudice, which section 11 B protects against. As noted above, these factors must then be balanced against the societal interest in a trial on the merits.
45The Supreme Court in Morin suggested an 8-10 month range for trials in Provincial court. The delay here is double that of the lower end of the range and more than 50% higher than the upper range. In addition I find that there is in fact some, although limited prejudice, suffered by the accused.
46Although the state interest in a trial on the merits is important, I note the offence before that court does not involve any allegation of violence and what role, if any, the accused played in the distribution of the marijuana seized is unclear. In my view, a balancing of those interests against the significant delay and the prejudice to the accused dictates a finding that the accuseds rights guaranteed by section 11(b) of the Charter of Rights has been violated.
47Therefore pursuant to section 24(1) of the Charter I order that the charges be stayed.
Released: October 30th, 2014
Signed: "Justice R. Bigelow"
Appendix A — Procedural Timeline
| Date | Purpose | Summary | Time Period |
|---|---|---|---|
| April 22, 2013 | Arrest date | ||
| April 23, 2013 | Information sworn | ||
| April 23, 2013 | Accused released on bail | ||
| May 30, 2013 | First appearance | Counsel appears for, files designations and request disclosure. Crown advises that disclosure being vetted and matter adjourned for three weeks at request of Crown. | 58 days |
| June 25, 2013 | Ex parte unsealing order | Crown receives ex-parte order to unseal the ITOs and shortly thereafter forwards it to the court clerk's office. | 26 days |
| June 26, 2013 | Second appearance | Crown provides initial disclosure. Defence counsel requests the information to obtain which was not provided with initial disclosure. | 1 day |
| July 10, 2013 | Third appearance | Crown counsel advises that information to obtain still not available | 15 days |
| July 22, 2013 | Crown pretrial | 12 days | |
| July 31, 2013 | Fourth appearance | ITOs still not available | 9 days |
| August 21, 2013 | Fifth Appearance | ITOs still not available | 21 days |
| August 30, 2013 | Court support notification | Crown's office advised by Court Support that one ITO found but 2nd not yet located | 9 days |
| September 13, 2013 | ITOs received | Crown's office receives copies of both relevant ITOs | 12 days |
| September 19, 2013 | Officer contacted | OIC contacted to arrange for affiant to attend Crown's office to vet warrant | 6 days |
| September 19, 2013 | Sixth Appearance | Crown in court unaware when ITO may become available | |
| October 10, 2013 | Seventh Appearance | Judicial pretrial scheduled without having received ITO on the understanding that it would be provided before trial. | 21 days |
| November 8, 2013 | Eighth appearance — first judicial pre-trial | Judicial pretrial did not proceed because ITO had not yet been provided. Crown fact counsel advises that the ITO had been vetted and would be provided to counsel within the week. Judicial pretrial rescheduled for December 6, 2013 | 29 days |
| December 6, 2013 | Ninth appearance — second judicial pretrial | Crown advises that ITO still being vetted. Second judicial pretrial cancelled. Third judicial pretrial scheduled for January 14, 2014. | 28 days |
| December 12, 2013 | ITOs provided to counsel | 6 days | |
| January 14, 2014 | 10th appearance — third judicial pretrial | Matter scheduled for first available trial date of December 9 and 10th 2014 with a one day Garofoli hearing and section 11(b) application scheduled for October 24, 2014. Defence Counsels' first availability for trial February 14, 2014 | 33 days |
| February 14th, 2014 | Defence Counsel available for trial | 31 days | |
| October 24, 2014 | 11th appearance | Date scheduled for 11(b) and Garofoli | 252 days |
| December 9, 2014 | Trial Date | 47 days |
Footnotes
1Exhibit F to the Affidavit of Jason Au Application Record Tab 14
2[1992] 1 SCR 787
3PAGE 15 of 28
4R v Lahiry 2011 ONCA 594 , 108 OR (3d) 187 (SCO)
5Affidavit of Margaret Damiano, Respondent's Factum at Tab 2
62008 OJ No. 3513
72007 OJ No. 4606 at paragraphs 38-39
82011 OJ No. 5248 at para 19
9Supra at paragraph 9