Court Information
Court File No.: Toronto
Ontario Court of Justice
Between:
Her Majesty the Queen
Mr. K. Yeh, for the Crown
— And —
Daniel Shea
Ms. L. Thomas, for the Accused/Applicant
Heard: May 10, 2012
Decision
NAKATSURU J.:
[1] Application
[1] The applicant, Mr. Daniel Shea, is charged with possession of cocaine, marihuana, psilocybin, MDMA, oxycodone, morphine, methamphetamine, and ketamine for the purpose of trafficking. He brings an application pursuant to s. 24(1) of the Charter alleging that his right to a trial within a reasonable time under s. 11(b) has been infringed. For the following reasons, I dismiss the application.
Analysis
[2] The factors to be considered on an application such as this are well established and set out in the case of R. v. Morin (1992), 71 C.C.C. (3d) 1 at 13 (SCC). These principles have more recently been considered in two binding decisions: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.)
[3] I will now address those factors.
A. The Length of the Delay
[4] It is not disputed that the delay in this case warrants examination by the Court.
B. Waiver
[5] Upon review of the record of proceedings and the application record, there have been no explicit waivers of s. 11(b).
C. The Reasons for the Delay
[6] There is no agreement between the parties with respect to the reasons for the delay in the case at bar and how the time periods should be attributed. At this point, it is necessary to scrutinize in some detail what happened in the history of the proceedings.
[7] I will initially note that the applicant was jointly charged along with a co-accused, Mr. Winston Pritchard. Prior to the hearing of the application, the charges against Mr. Pritchard were stayed by the Crown. In reviewing the history, although reference must naturally be made with respect to actions taken by Mr. Pritchard, my focus will be on the applicant.
Chronology
November 30, 2010: The applicant was arrested on November 29, 2010. The information was sworn on November 30, 2010. It is this latter date that is pertinent for s. 11(b) purposes.
December 2, 2010: This was the date of the applicant's bail hearing. The applicant has retained counsel. Mr. Pritchard also has counsel, Mr. Halberstadt, representing him at the bail hearing. Both are released on a consent bail with strict conditions. Counsel for the applicant requested January 12th as the return date.
January 12, 2011: This was the first appearance out of custody. Counsel for the applicant filed a designation. As counsel for the applicant was late when the matter was first called, counsel for Mr. Pritchard asked for February 23 as the return date. This was the first available date for counsel. No Crown disclosure was available on this date. When counsel for the applicant arrived, she was told this was the next return date. The case was remanded to February 23.
January 19, 2011: The applicant was arrested on a charge of failing to comply with his recognizance on these drug charges. It is alleged that he was at a gym not in the presence of his surety. His show cause was adjourned to January 24, 2011.
January 24, 2011: The applicant consented to the Crown's s. 524 application on the drug charges and there was a consent release. Additional sureties and an increased amount for bail with the same conditions were imposed.
February 23, 2011: A student-at-law appeared for the applicant. Disclosure was provided by the Crown. The student-at-law suggested a return date of March 16. A message was provided by counsel to Mr. Pritchard, Mr. Halberstadt, suggesting a return date of March 29th. The student-at-law agreed to that date. The Crown suggested that there were earlier return dates and that there were Crown pre-trials starting March 8th. All parties agreed to the return date of March 29th and disclosure for Mr. Pritchard was set aside.
March 4, 2011: Counsel for the applicant sent a letter to the Crown requesting a bail variation to include additional sureties, a change in residence, and permission to be outside his home for employment and fitness without his surety.
March 9, 2011: The Crown replied to the request. The Crown stated the addition of sureties can be done in court but reserved the right to cross any new potential sureties. Further, the Crown did not consent to the request for a bail variation to the house arrest for employment. The Crown noted that employer's letter was not signed, counsel had not indicated he had confirmed the employment, the employer had misspelled the applicant's name, and there was no schedule of work hours provided. The Crown further did not consent to the fitness exception since his fail to comply was due to his presence at the Jewish Community Center without the presence of his surety.
March 28, 2011: Counsel for the applicant faxed a letter to the Crown asking for the notes of two police officers and the search warrant and the information to obtain (ITO).
March 29, 2011: Mr. Pritchard has changed lawyers in the interim. Mr. Crewe now appeared for him. Mr. Crewe stated that he has the Crown disclosure and has reviewed it. He sought a Crown pre-trial and asked for the earliest date. He was advised April 13th was the earliest one. Mr. Crewe was unable to do it then and suggested some time later. Further Crown disclosure was provided on this date. Mr. Crewe suggested a return date of April 26, 2011, and in the interim, he stated he will do a Crown pre-trial. The case was remanded to that date. During the time this was spoken to, neither the applicant nor his counsel was in court. An agent for the applicant later attended. She advised counsel for the applicant had requested further disclosure. The Crown provided further disclosure. The agent stated she was going to request April 12th but the co-accused had gone to April 26th. The agent stated that she understood there would have to be Crown pre-trials. The agent was told that the first available pre-trial was April 13th so the agent agreed to the 26th where both accused could be matched together.
[8] It is submitted by the applicant that the period from November 30, 2010, to January 12, 2011, should be attributed to initial intake. January 12, 2011, to February 23, 2011, should be attributed to Crown delay due to the unreasonable delay in obtaining initial disclosure. The defence agreed that February 23, 2011, to March 29, 2011, should be considered neutral since the defence had to review the disclosure provided. It is submitted that the initial intake period ended on March 29th.
[9] The Crown submitted that the initial intake period was from November 30, 2010 to March 29th, 2011. March 29th to April 26, 2011, should be considered neutral as part of the inherent time requirements of the case.
[10] In my opinion, the times period from November 30, 2010, to April 26th, 2011, should be attributed to the neutral intake period. This is a period of 4 months 27 days.
[11] First of all, in coming to this conclusion, I cannot accept the defence contention that the Crown should be responsible for the delay from January 12 to February 23 because the Crown did not have disclosure ready by January 12th. The defence argues that the police had completed its investigation upon the arrest of the accused and that there was no valid reason why disclosure should not have been ready on the first appearance date.
[12] In my view, to the extent it is possible, a s. 11(b) analysis should avoid arbitrary allocations of time. The actual history of the proceedings should be closely scrutinized from the transcripts and other evidence filed on the application to best determine how time periods should be characterized. In other words, the assessment should be based upon on-the-ground reality. To illustrate, the actual length of the initial intake period will depend upon the return date(s) requested by the defence; a date often chosen to convenience defence counsel when he/she is next in the courthouse. Thus, frequently, there is quite a variable range for intake periods for similar cases. Of course, if the delay is so long that it becomes unreasonable to describe it as intake, a period of delay may be attributed to the actions of the parties.
[13] In this case, January 12th was the first appearance after the bail hearing. While ideally disclosure would have been ready on the first appearance, it is commonly not. The disclosure process takes administrative steps including review and vetting and is not as simple as making photocopies of notes. In this case, there were two co-accused with multiple drugs seized. There was a bail hearing conducted. It is not surprising to me that disclosure was not available on the first appearance. It did not appear surprising to any of the parties or the justice of the peace on that date either. The Crown indicated that this was the first time up after the show cause and she required a few weeks. Counsel for Mr. Pritchard readily agreed. When counsel for the applicant later appeared, she too willingly assented to the return date without comment on the lack of disclosure. In my opinion, the Crown is not responsible for the period between January 12 to February 23 and this will be attributed to initial intake.
[14] I recognized that the 4 months 27 days is a long period of time to attribute to intake for a case of this nature. However, the events must be assessed contextually. A number of intake steps and other related proceedings had taken place in this period. A bail hearing, initial disclosure, the accused being charged with a fail to comply related to the bail on these charges, a s. 524 application, a request for and consideration of a bail variation, request for further disclosure, and more disclosure being provided. Mr. Pritchard had also changed counsel.
[15] It was only on March 29th that the parties were available and ready for a Crown pre-trial. The Crown on February 23rd had indicated that there were available even earlier Crown pre-trial dates. A Crown pre-trial or Crown resolution meeting is an invaluable and necessary part of the intake process.
[16] There is another complicating factor in this case. There were two co-accused with two counsel involved. Without attributing any blame, the applicant's representative was late on more than one occasion. The result is that it was necessary for the applicant to go to the date that co-counsel had chosen. This is an unavoidable result of having trials of jointly charged accused and of counsel not attending at the time the case is initially spoken to.
[17] For these various reasons, while the initial intake period does seem extended, I find the period of time from November 30, 2010 to April 26, 2011, to be neutral intake.
April 26, 2011: A student-at-law attended for the applicant. Mr. Crewe attended for Mr. Pritchard. The Crown stated that there was an unsealing of a search warrant outstanding and suggested that the student-at-law attend at the Crown's office to make inquiries. When the matter was again spoken to, Mr. Crewe indicated that he has had a Crown pre-trial and was ready to set a judicial pre-trial. It was indicated that the applicant wished to obtain the search warrant before having a Crown pre-trial. The Crown strongly urged the applicant to have a Crown pre-trial since at this pre-trial, outstanding disclosure issues could be sorted out. The Crown indicated that she was ready to do one and the co-accused was eager to move things along. She stated that it was quite common to do a Crown pre-trial prior to the unsealing of a search warrant and that given a judicial pre-trial would be required in any event, the ITO would be available by that date. The student-at-law took the position that the search warrant was critical to meaningful discussions and there was no point to the pre-trial otherwise. There was further discussion on the record about whether the Crown's office received the request of March 28th for the warrant and a copy of the letter was made since the Crown indicated that it was otherwise surprising that nothing had been done on the defence request. The Crown urged that a Crown pre-trial nevertheless be conducted and that the applicant move the case along. The Crown indicated that the warrant would certainly be unsealed before the judicial pre-trial. The Court stated that the matter had been up a number of times and that the Court had some issues as well. Mr. Crewe suggested that the matter return sometime after May 16th and the applicant could do a pre-trial by then. The student-at-law agreed and suggested the return date of May 27th given defence counsel's calendar.
May 26, 2011: There was a miscommunication regarding the date of the Crown pre-trial. The applicant had the pre-trial set for May 26, 2011. The Crown had it set for May 25, 2011. The Crown called and left a message that the defence had missed the pre-trial. The defence responded by letter the next day, May 26th, 2011. No pre-trial was conducted as a result. Defence counsel who intended to review the brief before the pre-trial did not do so with the cancellation of the pre-trial. A new Crown pre-trial date of June 17th, 2011, was set up.
May 27, 2011: The student-at-law attended for the applicant. Crown filed a replacement information based upon the testing results. It was indicated that there was a scheduling error by the Crown and a new Crown pre-trial was set for June 17th. The student-at-law requested they return on June 20th. The Crown indicated it needed three clear days to get the brief back to court. Mr. Crewe suggested June 24th and put his concerns about the delay on behalf of his client on the record and the fact he had his Crown pre-trial some time ago. The student-at-law asked for an update on the search warrant request and was told it was still in the process of being prepared. The parties agreed to June 24th.
June 17, 2011: Counsel for the applicant directed his assistant to cancel the Crown pre-trial as the search warrant material was still outstanding.
June 24, 2011: Mr. Crewe attended for Mr. Pritchard. Some further Crown disclosure was provided. A discussion ensued about how best to proceed on the case. Mr. Crewe was unable to stay and requested the case return on July 6th to provide an opportunity to speak to the Crown and clarify matters pertaining to his client. No one appeared for the applicant. Counsel for the applicant had not diarized this court appearance. The Crown suggested that the applicant return on June 30th with a bench warrant with discretion so that further difficulty with Mr. Pritchard did not arise due to the applicant's non-appearance.
June 30, 2011: Counsel attended for the applicant and the bench warrant was rescinded. Counsel was advised his co-accused was attending on July 6th. Counsel indicated he was not sure whether the search warrant had been unsealed and if it wasn't, a request would have to be made. He requested that the matter return on July 28th, the same date as the last case he spoke to. The Crown indicated he did not see a request and that defence counsel would have to make a request. The case was remanded to July 28th. Defence counsel was unsure about the process of unsealing search warrants that prevailed in this courthouse and no one could advise him. Defence counsel did not have time to chase down the answer at the Crown's office as he had another matter that day so he requested July 28th and that a request for the warrant would have to be made.
July 6, 2011: Mr. Crewe attended for Mr. Pritchard. He was advised that applicant was returning on July 28th. Mr. Crewe agreed to that date and stated he hoped a judicial pre-trial could be conducted in the interim.
July 19, 2011: The applicant received the search warrant and ITO delivered to counsel's office by courier. It was not sealed.
July 27, 2011: The student-at-law for the applicant booked a Crown pre-trial for August 15, 2011.
July 28, 2011: Mr. Crewe attended and advised he got a call from the Crown that the Crown wished to set a judicial pre-trial. The Crown suggested that a judicial pre-trial be set that day. However, counsel for the applicant was not present and there was no message to the duty counsel. Mr. Crewe stated he could not set a judicial pre-trial without the presence of co-accused's counsel. The matter was held down for Mr. Crewe to call co-counsel. Later, an agent appeared for counsel for the applicant. He advised that a Crown pre-trial was set for August 15th and that his instructions were to put case over to August 18th. Mr. Crewe stated he was attempting to set a judicial pre-trial but would have to wait for the co-accused's Crown pre-trial to take place. The matter was remanded to August 18th. Disclosure for the fail to comply was provided to the applicant.
August 15, 2011: The Crown called counsel's office to conduct the Crown pre-trial at 2 p.m. The articling student advised counsel was out of town and unavailable but that an associate counsel who had appeared for the applicant on previous court appearances, would be conducting the pre-trial. The student advised that she would call shortly. The associate counsel called the Crown at 2:30 p.m. and advised that she had not had an opportunity to review the file as she had just flown in from out of town. She proposed to reschedule the Crown pre-trial. Crown counsel recommended that since a judicial pre-trial would be necessary, a quick Crown pre-trial be conducted not withstanding her lack of preparation. Counsel agreed and requested the Crown pre-trial be moved to 4:30 p.m. At that time, a brief Crown pre-trial was conducted. The Crown communicated the Crown's early resolution position. The Crown asked if there were any disclosure issues. Counsel replied that she was not aware of any outstanding disclosure but her office would send a letter if the need arose. The Crown explained that given the range of issues, a trial or preliminary inquiry would take at least one day therefore a judicial pre-trial would be required. Therefore, it was agreed that the defence was to set a judicial pre-trial at its earliest convenience.
[18] There is strong dispute with respect to the period of time April 26 to August 18, 2011, a period of 3 months 23 days. The defence argues that all of this period should be attributed to the Crown since it was caused by the failure of the Crown to timely provide the search warrant and the ITO. The search warrant and the ITO were not sealed and they should have been provided far earlier than July 19th. In a case such as this, the defence submits, the need for the search warrant and the ITO was obvious. It is submitted that the applicant acted reasonably in not conducting the Crown pre-trial in the absence of this significant material. It is submitted that the defence had a right to this disclosure before it was required to take such a fundamental step as a Crown pre-trial.
[19] The Crown argues that this period of time should be treated as neutral except for the period of April 26th to May 27th. For that latter period, the Crown accepts the responsibility of the scheduling error for the Crown pre-trial. This is a period of some 31 days. Otherwise, it is argued that the delay was caused by the inherent requirements of the case including the need to conduct a Crown pre-trial. The Crown submits that the failure to disclose the ITO and warrant was of no moment since it was clear that even on August 15th, defence counsel had not yet reviewed the file and was not in a position to conduct a Crown pre-trial.
[20] This period of time is difficult to characterize. Looking realistically at the big picture, I find that three things caused the delay during this time. The first factor was the failure by the Crown to make timely disclosure of the search warrant and the ITO. The second factor was the refusal of the defence to conduct a Crown pre-trial until it received the said disclosure. The third less significant factor is the failure of counsel or the applicant to attend court on June 24th and the need to marry the two co-accused back together.
[21] With respect to the Crown failure to provide the search warrant and the ITO, it should not have taken from March 28th, when it was requested by the defence, to July 19th, when it was couriered to the defence, to obtain these materials. The Crown does not contend the materials were sealed. No explanation is provided why it took so long. It is not persuasive to me to argue because the defence did not actually review the search warrant and the ITO until later that this somehow relieved the Crown of its obligation to disclose in a timely fashion.
[22] However, in my opinion, the defence was not correct to resist conducting a Crown pre-trial in these circumstances. I appreciate that the search warrant and the ITO are very important items of disclosure in a case like this. Certainly, an accused need not be called upon to enter a plea, make an election, or set a trial or preliminary inquiry date without such disclosure. However, I disagree with the applicant that on the facts of this case he was right to stand upon his decision not to conduct a Crown pre-trial before receiving such disclosure. An accused is not necessarily entitled to refuse to proceed to the next step of the proceedings even where the Crown has clearly failed to make the mandated disclosure: see R. v. Lahiry, supra, at paras. 109 to 111.
[23] In general, Crown pre-trials are important forums to resolve outstanding disclosure issues. In this case, on numerous occasions, the applicant was urged to conduct a Crown pre-trial by both the Crown and the Court. Had such a Crown pre-trial been conducted, undoubtedly the issue of the outstanding search warrant and the ITO would have been discussed and immediate attention would have been brought to bear in ensuring it was obtained. Indeed, even in preparation for such a pre-trial the Crown may uncover unresolved disclosure issues. The Crown pre-trial is a far more effective forum to uncover and resolve disclosure issues than in the brief and often chaotic forum of a set date court. Further, an exchange of letters suffers from the frailty of being missed or lost. Here, there is some indication that the Crown did not have the initial request in its brief. Regardless, the defence should have proceeded with the Crown pre-trial even if all the issues could not be fully and finally canvassed. Crown pre-trials are not one shot deals. They can be continued on another date if necessary.
[24] Secondly, on the facts of this case, the lack of disclosure did not prove an insurmountable obstacle to the conduct of a Crown pre-trial. One was set in May when the Crown and Court urged it upon the defence. While the defence made its position known on the record, it was nonetheless willing to conduct one. It is most unfortunate that due to miscommunication this one was missed. Then another Crown pre-trial was scheduled but defence counsel intentionally cancelled it. This too was unfortunate since by then it should have been clear that something was amiss with respect to disclosure and this could have been more fully canvassed at the pre-trial. Finally, on August 15th, the actual Crown pre-trial conducted was very brief and done by the defence with little preparation. While I appreciate that defence counsel had the search warrant and the ITO by then, it does not seem that very much of substance was actually discussed. I cannot see why some form of a Crown pre-trial could not have been conducted by the defence earlier. Finally, it was clear to all and made apparent on the record that a judicial pre-trial was going to be required. Even if the disclosure issues could not be resolved by the Crown pre-trial, the formality of one should have been conducted so that the next step of a judicial pre-trial could have been scheduled. I am most confident that the outstanding disclosure issue would have been resolved either before the judicial pre-trial, at the judicial pre-trial or shortly thereafter with the assistance of the presiding pre-trial judge. Even at the judicial pre-trial stage, the applicant was not yet being called upon to make any fundamental decisions that would affect the conduct of his case. It is common that judicial pre-trials are continued if there are outstanding issues or the potential of further fruitful discussions on resolution.
[25] The steadfast refusal of the applicant to conduct a Crown pre-trial is clear from the record. This too was in the context of the co-accused who was most anxious to move this case forward. I find that in these circumstances, the position of the applicant was unwarranted and he must shoulder some of the responsibility for the delay for this period of time.
[26] Finally, there is the issue of the applicant missing his court date on June 24th. Had someone attended, no doubt the matter would have been remanded to the same date as his co-accused, likely July 6th. Once required to re-attend on June 30th, for some reasons the matter was remanded to July 28th rather than July 6th. It appears to me that both counsel in court on June 30th, 2011, were not clear on what had previously transpired. They had not attended on previous court appearances. Defence counsel appears to have felt that a defence request for the search warrant had not yet been made. Crown counsel appears to share that view. It further appears that defence counsel asked for July 28th, a date where a previous unrelated case was remanded to. Neither party nor the Court seemed to think remanding the applicant to July 6th to join up with Mr. Pritchard was a wise option. That should have been done. This left Mr. Pritchard when he showed up on July 6th with little option but to be remanded to July 28th to join up with his co-accused.
[27] While this did not expedite matters, in the context of the other two factors, it is of less significance since the Crown did not disclose the warrant and the ITO until July 19th and the defence continued to insist on not conducting a Crown pre-trial.
[28] This then leads me to the task of characterizing this period of delay. I am prepared to accept the Crown concession that April 26th to May 27th should be attributed to Crown delay. I find this despite my view that given the defence position, the miscommunication may not have affected the ultimate course of how the events unfolded. Nonetheless, given that the Crown concedes this time period and given its responsibility for failing to disclose the warrant and the ITO in a timely fashion, 31 days will be attributed to Crown delay.
[29] The remaining period of time, from May 27th to August 18th, is best divided equally between the defence and Crown. This time period cannot be properly characterized as inherent. The co-accused completed his Crown pre-trial much earlier and within the initial intake period. Rather, the true cause of the delay is both the Crown and the defence action. The Crown did not disclose until July 19th; the defence refused to conduct a pre-trial until August 15th. The fairest way to attribute the delay is to do it equally. Therefore, there will be an additional 1 month 11 days attributed to the actions of the Crown and 1 month 11 days attributed to the actions of the defence.
August 18, 2011: Mr. Crewe and the student-at-law for the applicant appeared and a judicial pre-trial date of September 19, 2011, was chosen.
[30] All parties agree that the time period from August 18 to September 19, 2011, should be characterized as neutral as being a part of the inherent requirement of the case.
September 19, 2011: Counsel for the applicant did not attend the judicial pre-trial due to a personal matter. The judicial pre-trial was re-scheduled to October 19, 2011.
[31] All parties agree that from September 19 to October 19, 2011, this period of delay should be characterized as defence delay. This is a period of 30 days.
October 19, 2011: The judicial pre-trial was conducted in the morning and the matter was later spoken to in court. The Crown indicated that something unusual had occurred. When the judicial pre-trial was conducted before Justice Ray, counsel for the applicant had indicated that he would elect a preliminary inquiry. They estimated a day and a half for this. In the intervening hour leaving the judicial pre-trial and attending the trial coordinator to obtain dates, counsel for the applicant decided to change his election and elect trial in the Ontario Court of Justice. They decided that three days would be the appropriate trial estimate and that a further judicial pre-trial would be conducted by counsel and the judge. The trial was targeted to commence July 30, 2012. The earliest available dates for trial offered by the Court were commencing July 25 but counsel for the applicant was not available. The judicial pre-trial was set for November 28th.
November 28, 2011: The continuing judicial pre-trial was adjourned to November 29 since the judge was not available.
November 29, 2011: The judicial pre-trial was conducted. The target date of July 30, 2012, was confirmed. A s. 11(b) application date was set for May 3, 2012. Mr. Crewe made a number of comments for the record in accordance with his understanding of the case of Lahiry. The Crown responded to some of the comments. Counsel for the applicant indicated that they would be available in this trial commencing December 9th. This brief comment has been supplemented by an affidavit of the articling student which lists all the available dates including dates in November of 2011.
[32] The defence submits that all of the time from October 19, 2011, to July 30, 2012, should be characterized as institutional delay. The Crown argues that the time required to complete the judicial pre-trial should be characterized as inherent and that the time required for defence preparation must be subtracted. In the Crown's submission, about half the time should be counted as neutral and the other half as institutional.
[33] In my opinion, for the same reasons as noted above, the time from October 19th to November 29, 2011, should be attributed to the inherent requirement of the case necessitated by the requirement to schedule and complete the judicial pre-trial. The fact that the judicial pre-trial was held on October 19th did not obviate the need for a further one. Counsel for the accused after the pre-trial was completed, changed their election. This was a significant decision. A judicial pre-trial where it is anticipated a preliminary inquiry is going to be held usually is a streamlined one where the issues are narrow. No Charter issues or pre-trial motions are canvassed. The potential calling of a defence witness and the number of defence witnesses are not discussed. Thus, when the defence decided to change course, another or a continuing judicial pre-trial had to be conducted in order to ensure that the matter was ready to be set down for trial, the issues canvassed and narrowed if possible, and a trial estimate properly obtained. On October 19th, counsel properly obtained target dates so that further delay would be avoided. However, given the requirement of a further judicial pre-trial, the time required to set one up and complete, a period of 1 month 10 days, should be treated as neutral.
[34] It is clear from Lahiry and Tran, that some time must be attributed to the need for the defence to prepare for trial. Therefore, not all the time from November 29th onward can be characterized as institutional. First of all, I cannot accept the defence submission that available dates earlier than November 29th should be accepted as the first dates the defence were ready for trial. To do so would be a fiction. The judicial pre-trial was not yet completed. There is no persuasive evidence that the defence had commenced preparing for trial once the target trial dates were set.
[35] Furthermore, I cannot accept December 9th to be the first date that counsel was available and prepared to go to trial. At trial, there will be a Charter application attacking the search and excluding the evidence seized. On November 29th, when the trial dates were confirmed, the defence had not prepared any materials for such an application. No notice of application had been served or filed. Indeed, to the date of this s. 11(b) application, no notice of application or other materials has yet been served and filed. Most importantly, the Rules of the Court require that such a notice and materials be served and filed 15 days in advance of trial. Therefore, the defence would not have been able to comply with the Rules by December 9th. Thus, the defence could not have been properly ready for trial by that time.
[36] I accept, as counsel for the applicant submitted, that defence lawyers prepare as the date of trial nears. This is common practice. Thus, from a certain perspective, to require defence lawyers to state for the record the first date that they have for trial, available to them and with sufficient time to prepare, seems somewhat artificial. However, for a s. 11(b) analysis, I must make that determination based on the record presented by the applicant. In this case, counsel has provided a litany of available dates. In my view, it is not necessary to do so. It is better to simply place on the record the first available date counsel has for trial and to succinctly state the reason for that. I should note availability of the defence is not necessarily synonymous to being prepared for trial. If counsel can be quickly prepared for trial, for example, the case is simply a credibility issue involving a complainant and the accused, then counsel can provide that explanation for the record. In such a case, it may be realistic for the defence to be prepared for trial in a few days. Other cases may take longer to prepare.
[37] In this case, there will be a s. 8 Charter motion with perhaps a Garafoli application. In my opinion, the most realistic assessment of the time required by the defence to be ready and available for trial would be about a month. Counsel for the applicant in oral submissions agreed with this estimate. Given how Justice Code treated the issue in Lahiry, this conclusion is generous to the defence. Thus, the first available date provided by applicant is January 3, 2012. The period of time November 29, 2011, to January 3, 2012, is therefore deducted from the calculation of institutional delay.
[38] I do not accept the Crown position that more time should be attributed to defence preparation. In Lahiry, Justice Code was doing his best to estimate the period of time attributed to the defence in the absence of any information how long it would take the defence to be ready. Here, I have evidence to calculate it more exactly.
[39] The Crown further submitted that defence was not ready for trial because it did not perfect this s. 11(b) application until April, 2012. Thus, the Crown argues, all this time should be attributed to the defence. In my opinion, the flaw in the Crown's argument is that if the defence was given an earlier trial date, there would have been no need to perfect and bring a s. 11(b) application. Thus, it should not rebound to the defence's detriment that they needed the time to order transcripts and otherwise prepare material for this application.
[40] Finally, on a more minor point, the Court was able to offer July 25th as the first available date. Defence counsel was not available. In my view, the period of institutional delay ends on July 25th. It is at this point that the case could have been heard given the judicial resources available. While defence counsel is not to blame for having a conflict, these extra five days cannot be considered the result of an institutional inability to offer earlier dates. This short period of time should be treated as neutral given that it is an inherent aspect of any litigation process that the parties may not be available on the first date offered due to other commitments.
[41] Thus, from October 19 to November 29 is neutral in that the judicial pre-trial had to be completed. November 29 to January 3, 2012, is neutral as time required for the defence to prepare and be available for trial. From January 3, 2012, to July 25, 2012, is a period of institutional delay, a period of 6 months 22 days. July 25 to July 30, 2012, is neutral.
[42] In summary, the total periods are attributed in the following way:
- Intake/inherent delay: 8 months 19 days
- Defence delay: 2 months 11 days
- Crown delay: 2 months 12 days
- Institutional delay: 6 months 22 days
[43] Thus, the total operative delay (Crown and institutional delay) in this case is 9 months 4 days. This is within the guidelines set out in Morin.
D. Prejudice
[44] Both inferred prejudice and actual prejudice are considerations in the assessment of prejudice. In addition to inferred prejudice, the parties can present evidence of actual prejudice or evidence negating prejudice. The Crown can show that conduct of the accused falling short of waiver may be relied upon to negate prejudice. The presence or absence of prejudice is also an important factor in determining the length of institutional delay that will be tolerated.
[45] In this case, I find that there is no actual prejudice to the fair trial interests of the applicant. No evidence was presented on this. I further find that there is no actual prejudice to the applicant's security of the person. There is no affidavit or other evidence from the applicant. The affidavit of the student-at-law of counsel for the applicant makes no mention of either form of prejudice.
[46] The only prejudice referred to is the fact that applicant has been on a form of house arrest as a condition of his bail. Such a restrictive bail condition can be significant prejudice to an accused's liberty interest. However, there are factors present in the applicant's case that are against a finding of prejudice. Firstly, there is no evidence from the applicant. While I can readily infer that the condition would restrict his freedom, the degree of that restriction given that there are exceptions to the house arrest, cannot be more specifically assessed. Secondly, the applicant requested a bail variation to permit him to obtain employment. The Crown requested more information from him in order to properly assess the request. This request of the Crown was reasonable in the circumstances. The applicant decided not to pursue the option of obtaining employment. The applicant's decision not to pursue the variation must be taken into consideration when he now argues prejudice. Thirdly, perhaps most importantly, the house arrest condition is attached to other outstanding charges faced by the applicant. While on release for these charges, on January 19, 2011, he was arrested for fail to comply with his recognizance. The Crown brought a s. 524 application on these substantive charges and this was consented to. On January 24th, 2011, the applicant was released on all charges with no changes to his bail except for additional sureties and an increased amount for his bail. Then, again, on February 12, 2012, the applicant was charged with other offences along with one count of failing to comply with his recognizance. The Crown brought another s. 524 application and opposed the applicant's release. The applicant was released on bail for all outstanding charges on March 9, 2012. His new global release has a new address, a change in the sureties, an increased amount for bail and the house arrest condition with the exceptions for counsel and court appearances removed. While giving full effect to his right to be presumed innocent on these outstanding charges, nevertheless, I find it difficult to give any great weight to his assertion that he is now suffering prejudice while on house arrest. The applicant has been charged with further offences and the condition of bail which he now complains of would in all likelihood remain attached to his other outstanding charges. This would be from January of 2011 and March of 2012. I finally note that although the applicant has complained about the disclosure, unlike Mr. Pritchard, at no point either at a court appearance or by correspondence, has the applicant ever complained about the pace of the proceedings.
[47] On this record, I find that the applicant has not proven that he has suffered actual prejudice.
[48] Furthermore, I am not prepared to infer prejudice in this case. Here, the operative delay falls within the guidelines. This is not such a long and unreasonable delay that I find that prejudice should be inferred. As noted, I have found no actual prejudice sufficient in my view to lower the guidelines.
E. Balancing Societal Interests
[49] These offences are serious. A multitude of controlled drugs were allegedly found in the applicant's home. One of the drugs is cocaine. Society has an interest in seeing such charges tried on their merits. I recognize that these are not the most serious offences known to law. Nonetheless, this balancing favours the dismissal of the application.
F. Conclusion
[50] The operative delay in this case falls within the Morin guidelines. I accept that Crown delay must be treated seriously; perhaps even more seriously than institutional delay. However, in this case, the total period of Crown delay is about 2 months, not an extensive period. Further, the Crown delay was occurring at the same time as the actions of the defence refusing to conduct the Crown pre-trial thus diluting the effect of the Crown action in causing the delay. I am satisfied that there has been no actual prejudice nor am I prepared to infer prejudice given the delay involved. The balancing of societal interests favours a trial on the merits. For these reasons, after considering all the factors, I find that the applicant has not proven a violation of his s. 11(b) right. The application is dismissed.
Released: May 25, 2012
Signed: Nakatsuru J.