WARNING

The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 Identity of victim or witness not to be published.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it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.

112. 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 Offences.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 FILE No.: Region of Durham 998 10 Y26006

DATE: 2012·01·12

Citation: R. v. T.(K.), 2012 ONCJ 21

ONTARIO COURT OF JUSTICE

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

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

K.T.

G.J.

Before Justice J. De Filippis

Heard on October 3 & November 3, 2011

Reasons for Ruling released on January 12, 2012

Mr. M. Flagg ............................................................................................................. for the Crown

Mr. M. Jacula ....................................................................................................................... for K.T.

Mr. A. Romain ..................................................................................................................... for G.J.

De Filippis, J.:

[1] The Applicants are scheduled to go to trial beginning on January 12, 2012. They seek an Order, pursuant to Section 24(1) of the Charter of Rights and Freedoms that these proceedings be stayed on the basis that their right to be tried within a reasonable time has been infringed, contrary to section 11(b) of the Charter. As should be the case in all such applications, the Applicants arranged to have the motion served, filed, and heard before the start of the trial. At the conclusion of oral argument, having previously considered written submissions, I ruled as follows: “Even accepting the calculation of delay proposed by the applicants, I am not persuaded, in all the circumstances, that their 11(b) rights have been infringed. The motion is dismissed with reasons to follow.” These are my reasons.

[2] The applicants, who are youths within the meaning of the Youth Criminal Justice Act, are charged in an Information containing 28 counts with a variety of offences involving robberies while having their faces masked and some of which are alleged to have been facilitated with the use of a weapon. The offences are said to have occurred from May to September 2010 but charges were not laid until December of that year. The total delay between the arrest of the Applicants and the schedule start of trial is almost 13 months (i.e. 12 months and 26 days).

[3] The Applicants were arrested on December 16, 2010. On December 30, Mr. T. was detained after a bail hearing. The next day, Mr. J. was released after a bail hearing. By this time he had retained counsel for a trial. Mr. T. brought a motion for bail de novo returnable on January 17, 2011 but this was abandoned on the day in question as counsel was awaiting authorization from Legal Aid to bring a bail review. That authority was later obtained and transcripts ordered. At this time, Mr. T. also retained counsel for a trial. On March 2^nd, Mr. T. was released on Crown consent at a bail review. A judicial pretrial was held on April 4^th and a trial was fixed for seven days; January 12, 13, 16, 17, 19, 20, and 23. These were the first dates offered by the court. Meanwhile the judicial pretrial was adjourned to continue on June 6^th to deal with outstanding disclosure issues.

[4] Mr. T. testified that his health has been adversely affected by the time spend worrying about the charges. He stated that his strict bail conditions have impaired his ability to attend school or work. Moreover, these same conditions prevented him from fully participating in the “celebration of life” of his brother. The latter was murdered during these proceedings and the case remains unsolved. He conceded that when arrested on these charges, he faced a charge of break and enter in Ottawa, which was disposed of in April 2011. Thus, for part of the period in question in this application, Mr. T. was also worrying about other criminal matters.

[5] Mr. J. testified that he has suffered stress and anxiety as a result of these charges causing him to have headaches and chest pains. He claims his performance at school has suffered and that his strict bail conditions have severely restricted his social life, including playing basketball and going out with his girlfriend. He conceded that when arrested for these charges he had an outstanding robbery charge, which was disposed of in May 2011. Thus, for part of the period in question in this application, Mr. J. was also stressed and anxious about other criminal matters.

[6] Section 11(b) of the Charter provides that “any person charged with an offence has the right … to be tried within a reasonable time.” In R. v. Morin 1992 89 (SCC), [1992] S.C.J. No. 25, the majority of the Supreme Court of Canada held that the primary purpose of the provision is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speaking for the majority, Justice Sopinka (at para 28):

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

Justice Sopinka recognized a secondary societal interest that is protected by section 11(b), namely, that those accused of crimes be brought to trial and dealt with according to law.

[7] The decision as to whether s. 11(b) has been infringed is not to be made “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.” Some delay is inevitable. The question is when is it unreasonable? That question is to be answered in light of the following (Morin, para 31):

1. the length of the delay;
2. waiver of time periods;
3. 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 the delay;
4. prejudice to the accused.

[8] A waiver of delay must be clear and unequivocal. Consent to a trial date without any comment or explanation may amount to waiver but not if it merely acknowledges the inevitable. All prosecutions have certain inherent time requirements which lead to delay; these include the first appearance, retaining counsel, disclosure, and the resolution meeting. In R v Meisner [2003] O.J. No. 1948 at para 32, Justice Hill held that a period of two months is a normal feature of a case entering the Ontario Court of Justice. This period is to be considered neutral. Inherent time requirements may be extended in complex cases. The actions of the parties that cause delay may also be relevant, including the failure of the Crown to provide disclosure.

[9] The time period for delay due to limitation of institutional resources starts to run when the parties are ready for trial but cannot be accommodated. In this regard, Justice Sopinka stated that an appropriate period of institutional delay in the provincial courts is eight to ten months and, for cases in the superior courts, a further six to eight months from the preliminary hearing to trial (Morin, para 55).

[10] The fact that the right to be tried within a reasonable time has been enshrined in the Charter implies, in and of itself, that accused persons suffer prejudice when their trials are delayed and that prejudice can be inferred from prolonged delay even in instances where no actual or direct evidence of prejudice is presented by the accused. In R v Askov 1990 45 (SCC), [1990] S.C.J. No. 106 at para 46, Justice Corey noted that “There could be no greater frustration imaginable for an innocent person charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial”.

[11] In R. v. K.G., 2009 ONCA 131 the Court of Appeal for Ontario cited with approval its earlier decision in R. v. Qureshi (2004) 2004 40657 (ON CA), 190 C.C.C. (3d) 453 at para. 14:

Two kinds of prejudice are relevant [on a s. 11(b) application]. First, the court may infer prejudice from the delay itself and is more likely to do so the longer the delay. On the other hand, an accused’s action or inaction that shows a desire to avoid a trial on the merits may negate any inference of prejudice from the delay itself. Second, the accused or the Crown may lead evidence to show either prejudice or an absence of prejudice.

[12] Prejudice may be inferred from the length of delay and, at some point, may be such that a stay of proceedings is required without proof of actual prejudice. In other cases, the application of section 11(b) of the Charter invites a balancing of delay and prejudice. In such cases, evidence of actual prejudice, suffered because of the delay, is important. Proof of significant actual prejudice will inevitably lead to stricter adherence to the guidelines. Where such proof is lacking the basis for enforcement of the Charter right is undermined. The purpose of the right is to expedite trials and minimize prejudice, not to avoid a trial on the merits.

[13] The Applicants assert that the impact of time on a young person is different and the ability of such a person to appreciate the connection between behaviour and consequences is less developed than for an adult. Thus, as a general proposition, youth court matters should proceed to a conclusion more quickly than those in the adult system. In this regard, delay which may be reasonable in the adult system may not be reasonable in youth court. I agree.

[14] The total delay in this case, between arrest and trial, is almost 13 months. Such a delay warrants an inquiry by the Court. The parties agree that the Applicants did not waive delay. The Applicants claim that about one month is attributable to intake activities. The Respondent suggests a longer period of time. Moreover, the parties disagree with respect to the characterization of the time needed for judicial pretrials. Finally, the parties are at odds about whether the Crown contributed to delay by providing late disclosure. As a result of these differences, the Applicants claim that the relevant period of delay for the purpose of this motion is 10 months and 21 days whereas the Respondent claims it is about nine months.

[15] The different calculation of relevant delay by the Applicants and Respondent is less than two months. On either calculation, I am not persuaded that s. 11(b) has been infringed. In any event, I do not accept the Applicant’s calculation. Before dealing with that, however, I will address the issue of prejudice: I find that the complaints made by the Applicants are genuine and arise primarily by virtue of the charges being laid. While any delay will exacerbate this prejudice, in this case, both applicants were also affected by other criminal charges that were resolved during these proceedings. Thus, the issue actual prejudice is not a pressing concern in my analysis.

[16] The Crown provided initial disclosure soon after the arrests and continued to do so for the next several months. While this may have contributed to delay, on the record before me, I do not find it to be a significant factor. The period between arrest and the first judicial pretrial were taken up with bail matters, retaining counsel, and review of disclosure. Mr. J. retained counsel at the end of December 2010. However, Mr. T. did not complete his retainer until February 2011. The parties were not in a position to make informed decisions about a trial until the judicial pretrial on April 4, 2011. That pretrial was held about six weeks after both defendants had settled their bail status and retained counsel for trial. In my view that is not an inordinate delay. Moreover, I agree with the Respondent that a realistic period of time required to complete judicial pretrials is part of the inherent requirements of a case and is considered neutral time. Accordingly, I find that the entire period between arrest and the judicial pretrial is neutral time. I would characterize the period from April 4, 2011 to January 12, 2012 as institutional delay. This period – nine months and eight days – is the relevant delay for the purposes of this application.

[17] The relevant period of delay in this case is within the guidelines but longer than it should be for a youth court matter. However, this is not a routine youth court trial. It has been set down for seven days. In these circumstances, the delay is not unreasonable.

[18] The application to stay the proceedings is dismissed.

Released: January 12, 2012

Signed: “Justice Justice J. De Filippis”