COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Steele, 2012 ONCA 383

DATE: 20120607

DOCKET: C52303

Rosenberg, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Xavier Steele

Appellant

Michael Dineen, for the appellant

Scott Latimer, for the respondent

Heard: March 19, 2012

On appeal from the conviction entered by Justice Croll of the Superior Court of Justice on March 12, 2010.

Rosenberg J.A.:

[1] The appellant appeals from his convictions for robbery, use of an imitation firearm and obstruction of a peace officer on the sole ground that the application judge, Marrocco J., erred in dismissing his application for a stay of proceedings based on a breach of the right to trial within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. The appellant’s trial took place almost three years after he was charged. For the following reasons, I would allow the appeal, set aside the convictions and stay the proceedings. In my view, the application judge erred in his characterization of the delay due to the state’s failure to make timely disclosure, erred in failing to consider inferred prejudice from the delay, and used the wrong test for whether to grant a stay of proceedings.

THE FACTS

[2] The charges against the appellant arose out of the robbery of a video games store. It was alleged that the appellant and two accomplices robbed the store. One of the accomplices allegedly wielded a replica firearm. The appellant was arrested on April 5, 2007. Following the unsuccessful application before Marrocco J. for a stay of proceedings, the appellant and one of his accomplices, Remone Rodney, were convicted by Croll J. on March 12, 2010. The appellant was sentenced on June 30, 2010 to 22 months and 10 days imprisonment and 18 months probation.

THE DELAY

The Disclosure Problem

[3] As indicated, the appellant was arrested on April 5, 2007. His bail hearing was eventually held on April 13, at which time he was released on conditions with house arrest terms. He was required to be at home unless in the presence of his mother or a surety or for work purposes. The appellant made eight further court appearances while waiting for disclosure. Initial disclosure was apparently delivered to Crown counsel in mid-October 2007. Crown counsel needed time to vet the disclosure before it was provided to the appellant. The case was adjourned to November 1, 2007 so that the appellant’s case could be joined up with that of his co-accused. On November 1, initial disclosure was made to counsel for the co-accused. The appellant’s counsel was unable to attend on that date. The case was adjourned to November 29. Counsel for the appellant stated that she had not yet been able to pick up disclosure. The transcript of that appearance indicates that counsel had experienced difficulty in picking up the disclosure. The case was adjourned to December 20, then to January 10, 2008, and then again to February 7 while counsel reviewed disclosure.

[4] In the meantime, counsel for the appellant wrote to Crown counsel to point out that the appellant’s statement to the police, the store’s surveillance tapes, a witness statement and notes from six police officers were missing from the disclosure. The case was adjourned to March 6, 2008. By that time the DVD of the appellant’s statement was available. Although the other disclosure was still outstanding, counsel asked to set a date for a judicial pre-trial. The judicial pre-trial was set for April 8, 2008. By that time some more disclosure was made. The remaining disclosure was not completed until July 2008.

The Preliminary Inquiry

[5] Following the judicial pre-trial on April 8, 2008, the preliminary inquiry was set for June 22 to 25, 2009. However, the appellant continued to appear in court to attempt to obtain the remaining disclosure. At one point, on July 25, 2008, the presiding judge suggested that earlier dates for the preliminary inquiry might be available. The case was adjourned to August 8, 2008, in order to follow up on this possibility. On August 8, the trial co-ordinator confirmed that there were no earlier dates.

[6] According to the Agreed Statement of Facts filed on the application, the appellant appeared on several occasions in May and June 2009 because of a retainer issue between Legal Aid Ontario and the appellant. At one point, counsel made an application to be removed from the record or, in the alternative, have the court make an appointment of counsel. The issue was resolved when, following an order from a judge of the Ontario Court of Justice, Legal Aid Ontario reinstated the appellant’s legal aid coverage. According to the Agreed Statement of Facts, counsel agreed that transcripts of the appearances in May and June 2009 were not required for argument of the s. 11(b) application.

[7] The appellant and his co-accused were ordered to stand trial on June 25, 2009.

The Appearances in the Superior Court of Justice

[8] The appellant first appeared in the Superior Court of Justice on July 30, 2009, at which time his bail conditions were varied from house arrest to a curfew from 9:00 p.m. to 6:00 a.m. After several remands, the trial was set for March 1, 2010, which was the first available trial date. The s. 11(b) application was heard and dismissed on February 26, 2010. In the Agreed Statement of Facts, counsel agreed that the various transcripts of proceedings in the Superior Court of Justice were not required. Before the application judge, Crown counsel, not Mr. Latimer, agreed that the delay from September 22, 2009 to March 1, 2010 was institutional delay.

Evidence of Actual Prejudice

[9] The appellant filed an affidavit and was cross-examined by Crown counsel. He was 20 years of age at the time of his arrest. Although he abided by the terms of his bail, he was stopped by the police three times and threatened with arrest for breaching the house arrest conditions, until the police checked with his sureties who confirmed that he was out for work purposes. He became afraid of leaving the house and dropped out of his college program. He lost his employment, in part because he missed many days to attend court. His house arrest also interfered with his relationship with his friends and extended family.

THE REASONS OF THE APPLICATION JUDGE

[10] The application judge attributed the period from April 5, 2007 to November 1, 2007 (7 months) as the intake period, given that the Crown was required to provide substantial disclosure. He then looked at the delay caused by problems with disclosure. He attributed only January 6, 2008 to March 6, 2008 as delay caused by the Crown due to disclosure problems. The earlier period from November 2007 to January 2008 was neutral. The period from March 6, 2008 to April 8, 2008 to schedule the judicial pre-trial was reasonable and neutral. The period from June 25, 2009 to September 22, 2009 was a reasonable intake period in the Superior Court. The period from September 22, 2009 to March 1, 2010, plus 28 days for the trial itself, was institutional delay. Counsel for the appellant properly concedes that the application judge erred in categorizing the 28 days for the trial as institutional delay. Deducting this amount, the application judge attributed 22 months to institutional or Crown delay.

[11] The application judge dealt with prejudice in the following manner. He noted that the appellant appeared numerous times in the Ontario Court of Justice but this was due to retainer problems. Had there not been such problems, the appellant could have appeared by designation. These retainer problems were not the fault of the Crown. As well, the appellant did not attempt to change his bail conditions until he was ordered to stand trial. The appellant’s right to a fair trial was not prejudiced by the delay. As to security of the person, the application judge simply noted that the appellant had been stopped by the police three times. He considered that restrictions on seeing friends and family were imposed by his own family, not the courts, and could not be attributed to the Crown.

[12] The application judge concluded by stating that in balancing all the factors he had to bear in mind that a stay of proceedings is “an extraordinary remedy”. There was a genuine public interest in having serious charges tried on their merits. Balancing “all of these factors”, it was not appropriate to stay the charges.

ANALYSIS

[13] The appellant submits that the application judge erred in three respects:

• He overestimated the intake period in the Ontario Court of Justice;

• He failed to give any weight to inferred prejudice from the delay; and

• He applied the wrong test for when to grant a stay of proceedings.

The Intake Period and Institutional Delay

[14] The application judge held that an appropriate intake period was from April 2007 to November 2007, a period of seven months. The appellant disputes this attribution and submits that less than two months should be considered delay due to intake, with the balance as Crown delay. The application judge considered the further period from November 2007 to April 2008 as partly attributable to Crown delay due to disclosure problems (two months), with the other three months as inherent (neutral) delay. The appellant does not quarrel with the application judge’s attribution of this delay. The application judge categorized the period from April 2008 to June 2009, when the preliminary inquiry began, as institutional delay. The appellant agrees with this. On appeal, Crown counsel submits that some of this 14 months should be considered neutral as part of the inherent time requirements of the case.

[15] I agree with the appellant that the trial judge erred in his categorization of the time in the Ontario Court of Justice. In effect, the application judge attributed ten months to either intake or inherent time requirements of the case. However, the record shows that most of this delay was due to police/Crown failure to make prompt disclosure to the appellant and his co-accused. Even accepting that the case had some complexity given that there were two accused, ten months for intake is unreasonable. This delay is almost wholly explained by the delay in making disclosure, yet the application judge only attributed two months of the period from April 2007 to April 2008, when a date was finally set for the preliminary inquiry, to Crown delay. The record shows an inattention to disclosure requirements right up to April 2008, with significant pieces of disclosure such as the DVD of the appellant’s statement to police, the video tape from the surveillance and the notes from several officers remaining outstanding until then. Other officers’ notes, as well as a witness statement, remained outstanding until July 2008. On the other hand, appellant’s counsel made prompt and repeated requests for disclosure and finally agreed to conduct the judicial pre-trial and set the dates for the preliminary inquiry in April 2008, notwithstanding that some of the disclosure remained outstanding. The disclosure that remained outstanding for most of this period was not insignificant or peripheral; it represented an important part of the Crown’s case.

[16] There is no fixed or usual period of intake: see R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at pp. 792-93. However, in this case, there was no need for an extended intake period. The appellant had retained counsel within days of his arrest on April 5, 2007 and that counsel represented him on his bail hearing held on April 13, 2007. The appellant attended court on May 4 and 25, 2007, but no disclosure was forthcoming. Counsel made a written request for disclosure on May 31, 2007. The record contains three more letters thereafter from counsel seeking disclosure. After initial disclosure was made there were further letters seeking specific items missing from the disclosure. There was usually no response to defence counsel’s letters. Counsel also informed the presiding judicial officer at various adjournments that disclosure was missing. Other than the submission that the case involved substantial disclosure, there is no explanation on the record for the very lengthy delay in making disclosure for what would seem to be a straightforward case: the robbery of a video games store.

[17] Given that state of the record, it was unreasonable to attribute most of the time to intake or neutral time and only two months to Crown delay. Most of it was Crown delay and should have been so categorized. Of the 12 months from April 2007 to April 2008, I would categorize only five months as neutral or part of the inherent time requirements of the case. The balance of seven months together with the institutional delay from April 2008 to June 2009 represents 21 months of either institutional or Crown delay in the Ontario Court of Justice, a period far exceeding what is reasonable for this kind of case.

[18] However, for the first time on appeal, Crown counsel submits that some of the 14 months from April 2008 (when the date for the preliminary inquiry was set) to June 2009 (when the preliminary inquiry began) should be categorized as neutral. He submits that this is not all institutional delay because during this time there were problems with the appellant’s legal aid status that had to be resolved. As well, counsel at trial failed to establish that the appellant was ready to conduct the preliminary inquiry at any time during this 14-month period, and the delay was solely because the court was unable to accommodate an earlier date for the preliminary inquiry. The Crown relied on this court’s decision in R. v. Tran, 2012 ONCA 18, 287 O.A.C. 94.

[19] In Tran this court made several important points at paragraphs 31 to 40 of the reasons. First, the court is not bound by an erroneous concession by Crown counsel in allocating periods of delay. Second, defence counsel should put on the record their first available dates to conduct the judicial pre-trial and the preliminary inquiry or trial, as the case may be. If counsel does not do this, it may be impossible to determine how the delay should be allocated. Especially where there is more than one counsel involved, it should not be assumed that counsel can clear their calendars and co-ordinate their schedules so as to be ready within a few months of the judicial pre-trial. Further, the time necessary for counsel to prepare for the preliminary inquiry or trial must be taken into consideration as part of the inherent time requirements of the case. In setting down these guidelines, this court found persuasive the reasons of Code J. in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, at paras. 25-37. As Code J. noted at para. 26, systemic or institutional delay only starts to run when the parties are ready for trial but the system cannot accommodate them.

[20] In accordance with Tran, time must be allowed for defence counsel to prepare. The record discloses defence counsel indicated that she required approximately five weeks from when she obtained the first box of disclosure to prepare for the judicial pre-trial. There was also a delay by defence counsel in collecting the initial disclosure, apparently because of a breakdown in communications. Allowing eight weeks for preparation as neutral or part of the inherent requirements of the case is reasonable. Any further delay is attributable not to time to prepare, but to continuing problems with disclosure that prevented counsel from completing the statement of issues for the preliminary inquiry and proceeding with the judicial pre-trial. Eventually counsel proceeded with the judicial pre-trial and set the date for the preliminary inquiry, even though some disclosure was still outstanding.

[21] I would not accede to Crown counsel’s submission that this court should revisit trial Crown counsel’s concession that the entire period from April 8, 2008 to June 22, 2009 should be categorized as institutional delay. Mr. Latimer’s submission is principally anchored in the fact that defence counsel at trial never put her first available dates for the preliminary inquiry on the record. However, we do not have the entire record because counsel agreed to proceed on the application by way of an agreed statement of facts. What is known is that the transcript of April 8, 2008 indicates that counsel informed the presiding judge that they had obtained the first available dates for the preliminary inquiry and that “11(b) is an obvious concern”. Further, at court appearances in late July and early August 2008, at the request of the presiding judge, attempts were made to obtain an earlier date for the preliminary inquiry. The transcript of August 8, 2008 shows counsel for the co-accused informing the presiding judge that “there were no earlier dates.” Crown counsel did not dispute this statement. There is nothing on the record to show that the lack of earlier dates was due to the unavailability of counsel, as opposed to a lack of institutional resources.

[22] As to the continuing retainer problems that the appellant was having because of difficulties with legal aid, again, counsel at trial agreed to proceed by way of an agreed statement of facts rather than obtain the transcripts relating to this issue. What the record does reveal is that defence counsel remained on the record throughout and that the legal aid issues were not causing delay. As counsel said on April 8, 2008:

I have been appearing on the record, I am still appearing on the record. Whether or not I get retained, I am still on the record and I am prepared to set the date today whether or not I am retained. I just want to make that clear, and the matter has not been slowed down at all because of my lack of retainer.

[23] In my view, given this state of the record, it is not open to Crown counsel to ask for the first time on appeal that the April 2008 to June 2009 period not be characterized as institutional delay. On this record the respondent Crown has not shown that trial Crown counsel made an erroneous concession in agreeing that this entire period was institutional delay.

[24] To summarize, of the period from the arrest on April 5, 2007 to July 30, 2009, when the appellant first appeared in the Superior Court of Justice, 21 months is attributable to institutional or Crown delay. The remaining seven months are either intake, time to prepare or the inherent time requirements of the case and are neutral.

[25] Of the time in the Superior Court of Justice from July 30, 2009 to March 1, 2010 (the date for the trial to begin), approximately five months is institutional delay. There was no contest before the application judge that March 1, 2010 was the first available date for the trial.

[26] Thus, 26 months of the almost three years to bring the appellant to trial are properly characterized as institutional or Crown delay.

Prejudice

[27] The trial judge placed minimal weight on actual prejudice. He noted that the appellant did not attempt to vary his strict bail conditions until he was ordered to stand trial and that the repeated court appearances were because the appellant had not provided a designation to have counsel appear on his behalf. These findings were available on this record.

[28] Where the application judge erred, in my view, was in failing to consider the inferred prejudice from the delay. As the Supreme Court of Canada said in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at paras. 31 and 34:

The 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. The longer the delay the more likely that such an inference will be drawn.” Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward.

The majority of the Court [of] Appeal acknowledged that these charges had been hanging over the appellant’s head for a long time. It was reasonable, in my view, to infer as the trial judge did that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice. The majority of the Court of Appeal appears to have given no weight to this consideration. [Emphasis added.]

[29] While the application judge dealt with actual prejudice, he erred in failing to give any weight to inferred prejudice.

The Remedy

[30] In balancing the factors, the application judge stated that a stay of proceedings is an extraordinary remedy. In R. v. Thomson, 2009 ONCA 771, 248 C.C.C. (3d) 477, at para. 5, although the trial judge found a lengthy unexplained delay, he refused to stay the proceedings because a stay is a “drastic remedy” that “should be confined to the clearest of cases”. He also stated that the court must be satisfied that a fair hearing can no longer be had in light of the delay. As this court explained at para. 9 of Thomson, that was an erroneous approach because a stay of proceedings is the minimal remedy for a breach of the right to trial within a reasonable time. It is not the remedy of last resort reserved for the clearest of cases.

[31] The proper test was identified by this court in Thomson, at para. 25, by reference to McLachlin J.’s concurring reasons in Morin at p. 810: “In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.” As Arbour J.A. pointed out in R. v. Bennett (1991), 1991 CanLII 2701 (ON CA), 3 O.R. (3d) 193 (C.A.) at 206, at common law and under the Charter, outside the s. 11(b) context a stay of proceedings is a discretionary remedy to be granted sparingly. But for a s. 11(b) violation a stay of proceedings is the minimum remedy. As Lamer J. explained in R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588 at 614: “After the passage of an unreasonable period of time, no trial, not even the fairest possible trial, is permissible.”

[32] The application judge’s reasons balancing the various factors are as follows:

In balancing all of the factors, I should also bear in mind that a stay of proceedings is an extraordinary remedy. There is a genuine public interest in having serious charges tried on their merits. In my view, when all of these factors are balanced, it is not appropriate to stay the charges and I decline to do so.

[33] Thus, the application judge did not make the error of reserving a stay of proceedings to the clearest of cases. But it was an error to describe the stay as an extraordinary remedy. Further, because he failed to take into account inferred prejudice, his balancing was unreasonably skewed in favour of the genuine public interest in a trial on the merits.

Conclusion

[34] In Morin at p. 799, the court suggested a period of institutional delay in the Ontario Court of Justice of 8 to 10 months, and 6 to 8 months after committal for trial. In this case there is a combined institutional and Crown delay in the Ontario Court of Justice and the Superior Court of Justice of 26 months, a period in excess of the upper end of the acceptable institutional delay (18 months). Balancing the various factors, especially the fact that a significant portion of the delay is attributable to the Crown because of disclosure problems, the delay was unreasonable. The seriousness of the offence and the interest in a trial on the merits do not outweigh the other factors, including the inferred prejudice to the appellant from the 35 months it took to bring him to trial.

[35] In Godin, there was a delay of 30 months to bring the accused to trial on serious offences including sexual assault, unlawful confinement and death threats. Virtually all the delay was attributable to the Crown or institutional delay. Justice Cromwell described this delay as “striking” and, in words that also apply to this case, he said at para. 41:

Of course, there is a strong societal interest in having serious charges tried on their merits. However, the progress of this case was delayed to such a degree that the appellant’s constitutional right to be tried within a reasonable time was violated.

[36] In this case it took 35 months to bring the appellant to trial and virtually all of that delay, as in Godin, is attributable to the Crown or institutional delay. Given the length of the delay and the explanation for it, a stay of proceedings is the only appropriate remedy.

DISPOSITION

[37] Accordingly, I would allow the appeal, set aside the convictions, and enter a stay of the proceedings.

Signed: “M. Rosenberg J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree H.S. LaForme J.A.”

Released: ‘MR” JUNE 7, 2012