Court File and Parties

Court File No.: Halton, 10-3246 Date: 2012-06-06 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Ehtesham Idrees

Before: Justice F.L. Forsyth

Heard on: March 7, 2012

Reasons for Judgment released on: June 6, 2012

Counsel:

• Kelli Frew, for the Crown
• Christopher Biscoe, for the accused Ehtesham Idrees

FORSYTH, J.:

Written Reasons for Dismissal of the Defendant/Applicant's Motion for a Stay of Proceedings Pursuant to Section 11(b) of the Canadian Charter of Rights and Freedoms

Introduction

[1] Mr. Idrees was arrested and charged with 16 separate Criminal Code offences on October 5, 2010. The charges against him allege that between November 5, 2008 and February 26, 2010, he did commit five counts of forgery contrary to s. 368(1) of the Criminal Code, six counts of fraud under $5,000 contrary to s. 380(1)(b) of the Criminal Code, and five counts of theft under $5,000 contrary to s. 334(b) of the Criminal Code.

[2] Mr. Idrees retained counsel, Christopher Biscoe Esq., who represents him to the present date. On December 14, 2010, after the usual intake appearances, a trial date of September 6, 2011 was set for all of these charges marked for three-quarters of a day of court time in the Ontario Court of Justice.

[3] On September 6th Mr. Idrees' matter was not reached by the trial judge. After the usual consultation with the trial co-ordinator the court on September 6th was informed that March 7, 2012 would be the second trial date for this matter. There is no issue that Mr. Idrees did not waive his s. 11(b) Charter right for any period of time during the progress of this case up to March 7, 2012 although his agent on December 14/10 did not inform the court of any earlier dates on which Mr. Biscoe may have been available before September 6/11.

[4] The Crown on September 6th, Ms. Agata Tasson, suggested that a day be fixed to address a possible earlier date for this trial to be conducted between September 6, 2011 and March 7, 2011 in case any date became available. Apparently, the matter was then adjourned to October 4, 2011 and on that day Mr. Biscoe attended on behalf of Mr. Idrees by way of designation and was informed that no earlier dates were available before March 7, 2012. Therefore, the matter was adjourned to the originally selected March 7, 2012 trial date.

[5] In compliance with the Ontario Court of Justice Rules of Court Mr. Biscoe filed a notice of application on February 8, 2012 seeking an order by this court that Mr. Idrees' section 11(b) Charter right to a trial within a reasonable period of time had been infringed by the developments in this case. He notified the court that the remedy he was seeking was a stay of proceedings pursuant to s. 24(1) of the Charter. He also complied with the Rules by filing a complete application record and factum, as well as an affidavit by Mr. Idrees.

[6] The Crown appropriately responded in writing, again in conformity with the Rules of court. Therefore, on March 7, 2012, the s. 11(b) motion was properly prepared to be presented and argued to this court.

[7] On March 7, 2012, after taking evidence from Mr. Idrees supplementary to his affidavit and entertaining cross-examination by the Crown of Mr. Idrees on his affidavit and in general on the issues, I received submissions from both Mr. Biscoe and Ms. Frew. Following those submissions, after some deliberation in my chambers, I rendered an oral ruling without written reasons in which I dismissed Mr. Idrees' s. 11(b) application. Evidence on the trial itself was then taken from one witness and at the end of the juridical day of March 7th, the trial was remanded for evidentiary continuation to May 31, 2012.

[8] I will now set out the history and main points of argument by both counsel on the s. 11(b) application and provide my written reasons for my oral dismissal of the application on March 7, 2012.

Procedural Record from October 5, 2010 to March 7, 2012

[9] Ms. Frew, in the Crown's respondent factum, is in substantial agreement with the facts set out in the applicant's factum in paras. 4 to 7. In brief, they are as follows. The applicant was arrested and charged on October 5, 2010 on the subject charges. There has been a delay of 1 year, 5 months and 2 days since he was charged up to and including March 7, 2012.

[10] After release on October 5, 2010 his first court appearance was on October 26, 2010. Between that date and his December 14, 2010 appearance, he received disclosure, conducted a Crown resolution meeting, and was prepared with his counsel to set a trial date on December 14, 2010. That trial date was fixed as September 6, 2011 with a judicial pre-trial scheduled for March 13, 2011. On March 13, 2011, the original trial date of December 6, 2011 was confirmed.

[11] On September 6, 2011 Mr. Idrees attended for his trial date. However his matter was not reached due to the state of the list and a new trial date of March 7, 2012 was established. The first date offered by the trial coordinator for the three-quarters of a day required was February 17, 2012 but Mr. Biscoe was unavailable on that day. He did state on the record that he had available dates beginning in November 2011. As I stated in the above preamble, the Crown and Mr. Biscoe cooperated with each other and arranged for an October 4, 2011 appearance to canvass the possibility of an earlier trial date, other than March 7, 2012. When that was not possible, the matter was adjourned to the original second trial date of March 7, 2012.

[12] In his factum on behalf of the applicant, Mr. Biscoe submits that the total delay of 17 months and two days between the date of the arrest of October 5, 2010 and the second trial date of March 7, 2012 is unreasonable and results in an infringement of Mr. Idrees' section 11(b) Charter right. Both counsel agree, as does the court, that this total period of delay warrants a s. 11(b) scrutiny as contemplated by the now very much established common law authorities, in particular R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.).

[13] As has now become the established custom in such applications, both Crown counsel and defence counsel argued this application in the context of the structural framework set out by the Supreme Court of Canada in R. v. Morin, supra. In addition, Ms. Frew advocated the principles that had been recently established by Mr. Justice Michael Code in the Ontario Superior Court of Justice in a decision of R. v. Lahiry, 2011 ONSC 6780 with respect to the proper method of calculating the period of time between the day when a trial is set and the actual trial date itself, in light of the appropriate attribution of certain periods of that delay to either institutional or party delay or even whether or not it should all be considered to be neutral.

The Morin Factors

1. The Length of Delay

[14] The total length of the delay in this case warrants Charter scrutiny pursuant to s. 11(b). It is now prima facie accepted that the guideline from Morin is a tolerable delay of 8 to 10 months in the Ontario Court of Justice, absent exceptional circumstances for exceptionally complex cases.

2. Waiver

[15] Both counsel agree that Mr. Idrees has not made any fully informed, clear and unequivocal waiver of any delay in this case. However, the Crown, in her response at para. 11 and 12, argues that waiver may be implied from the actions of the accused during the course of the proceedings and relies upon the Supreme Court of Canada decision in R. v. Smith, [1989] S.C.J. No. 19 at para. 38. At para. 12, Ms. Frew submits that an inference adverse to the defendant may be drawn by this court because on December 14, 2010 when a trial date of September 6, 2011 was set, the agent who was appearing for Mr. Biscoe on behalf of Mr. Idrees did not comment with respect to the delay between December 14, 2010 and September 6, 2011. In addition, Ms. Frew submits that the agent failed to indicate to the court when Mr. Biscoe could have been available to accommodate the trial at an earlier date than September 6, 2011. The Crown refers the court to the December 14, 2010 transcript at Tab 6 of the applicant's application record.

3. Reasons for Delay

a) Inherent Time Requirements

[16] At paragraph 14 of his factum, Mr. Biscoe addresses the three inherent time requirement categories established by Mr. Justice Sopinka in the Supreme Court of Canada in Morin, supra. The first category is the complexity of the case. The second category is "intake requirements" which, of course, include matters such as bail hearings, retaining counsel, obtaining disclosure, etc. The third category is whether or not the case requires a preliminary inquiry. Mr. Biscoe submits that there are no elements in this particular case which would merit classifying it as being complex. In support of that proposition he submits that there is no co-accused to be tried with Mr. Idrees and that the trial is scheduled for three-quarters of a day before the Ontario Court of Justice.

Mr. Biscoe concedes that the period between the first appearance of Mr. Idrees on October 26, 2010 and December 14, 2010 when he was prepared to set his date for trial was appropriate as "intake requirement" time. I would simply add to that concession the period of time between the date of the charge on October 5, 2010 and the first appearance date of October 26th which is exactly three weeks later as also being appropriate.

b) Actions of the Accused

[17] At para. 18 of his factum, Mr. Biscoe submits that none of the delay in this matter is attributable to Mr. Idrees. He, of course, emphasizes in particular that Mr. Idrees was prepared to proceed to trial as scheduled on September 6, 2011 as he expected to do, but his case was not reached.

Ms. Frew concedes that there were no overt acts on behalf of the applicant that directly resulted in unreasonable delay. However, she submits that any adjournments that were at the request of the accused cannot be counted against the Crown, a fact which I must say appears to be obvious. See para. 16, Crown response.

c) Actions of the Crown

[18] Mr. Biscoe concedes that the Crown was not responsible for any of the delay in this case and for that reason, Ms. Frew did not even address this category in her response.

d) Institutional Resources and Other Reasons for Delay

[19] At para. 21 of his factum, Mr. Biscoe submits that it is clear that the primary delay in this case was caused by institutional delay. He points out that the system was unable to accommodate Mr. Idrees, even on his first scheduled trial date of September 6, 2011, which then caused prejudicial additional delay to him. In essence, he appears to be addressing both category d) and e) together of the Morin Inquiry factors considered to be appropriate for analysis as reasons for delay. By that I mean that Mr. Biscoe seems to be blending the number of months that it took to obtain the first trial date – from December 14, 2010 to September 6, 2011 – with the months that were then required to find a second trial date after Mr. Idrees' matter was unable to be reached on his first trial date of September 6, 2011. His reference in his para. 21 to prejudicial additional delay caused by the frustration of the September 6, 2011 trial date is of course better considered under the heading in the Morin factors of prejudice to the applicant which I will deal with in a moment.

The Crown, in her response, refers the court at paras. 17 and 18 to the reported decision of R. v. Pusic, [1996] O.J. No. 3329 at para. 59 and also to para. 76 in R. v. Morin, supra. In Pusic, Mr. Justice Hill stated at para. 59:

We do not have the luxury of a system which can provide instant access to litigants, in terms of courtrooms, judges and jury panels. Some institutional delay must be tolerated in recognition of the limited resources available.

In para. 76 of Morin, the Supreme Court stated:

While I have suggested that a guideline of 8 to 10 months be used by courts to assess institutional delay in Provincial Courts, deviations of several months in either direction can be justified by the presence or absence of prejudice.

And further at para. 19 of her response, Ms. Frew states:

... courts have tended to attribute the entire period from the day the trial is set to the actual day of trial to institutional delay. However, where counsel do not state their earliest available dates on the record, courts should not deem them immediately available as of the date the trial was set.

She refers the court to R. v. Lahiry, supra, for that proposition.

Ms. Frew, at para. 20, sets out her argument that since Mr. Biscoe's agent on December 14, 2010 did not advise the court of Mr. Biscoe's earliest available trial date after December 14, 2010, this court in conformity with the Lahiry rationale ought to assess a reasonable period for trial preparation by Mr. Biscoe for September 6th of two months, given the relatively complicated and extensive nature of the charges against Mr. Idrees and the Lahiry rationale. Therefore, that two month period, Ms. Frew argues, should be considered a neutral time period and not included within the institutional delay in this case. Therefore, she asks the court to conclude that the institutional delay for the setting of the first trial date between December 14, 2010 and September 6, 2011 would be six and three-quarter months as opposed to the full eight and three-quarter months counting by the calendar.

The Crown concedes that the inability of the Halton Criminal Justice system to accommodate Mr. Idrees' trial on the scheduled trial date of September 6, 2011 was due to a lack of institutional resources. She then refers the court to the fact that Mr. Biscoe had advised the court on September 6, 2011 that his earliest availability for the second trial date was early November 2011, some two months after the scheduled first trial date. In addition, Ms. Frew points out that Mr. Biscoe was unable to accept the first available date that was offered by the Halton trial coordinator for three-quarters of a day of February 17, 2012 and instead had to take the second date offered of March 7, 2012. The Crown argues in para. 21 of her response that this total time period which amounts to approximately two and one-half months should be considered by the court to be in the neutral category and therefore deducted by the total actionable period of delay which would result in an institutional delay of three and one-half months between the September 6, 2011 frustrated trial date and the next trial date of March 7, 2012. See transcript of September 6, 2011 and applicant's application record at Tab 8.

Ms. Frew therefore submitted at para. 22 of her response that the total amount of institutional delay after deducting the periods which she respectfully submitted should be deducted for the reasons she explained in her response, would be approximately nine months. She then submits that since that institutional delay is well within the acceptable range contemplated in R. v. Morin, supra, there would be no unreasonable delay in this particular case and that the applicant's motion should be dismissed.

While she may have made that submission, of course she must have realized that she would have to address the issue of actual prejudice to the accused because, once again, Justice Sopinka in R. v. Morin, supra, reminds us that the acceptable period of institutional delay can be adjusted a few months either way depending upon the presence or absence of a significant or insignificant degree of actual prejudice caused by the delay. I only point out in this case that I consider the institutional delay that is created by a trial not being reached to have an additional impact upon the category of prejudice beyond that which a simply running time period between a date when the parties are ready to set the date for trial and the date that is selected would have. Obviously, counsel would prepare for a trial date and would be charging fees accordingly to his client and the accused person would be mentally gearing up for the trial, just as would the Crown witnesses.

Crown's Revised Position on Institutional Delay

[20] Subsequent to the preparation of the written Crown response, this 11(b) application was argued with supplementary oral submissions on March 7, 2012. During the course of those submissions, after reconsidering the edicts of R. v. Lahiry, supra, and especially para. 69 of that decision, Ms. Frew withdrew her submissions that a period of two and one-half months should be deducted from the institutional delay calculation during the time period between September 6, 2011 and March 7, 2012 simply because Mr. Biscoe's first available trial date after September 6th was November 2011. Specifically, she conceded that that two month period should not be considered to be neutral. Actually, the relevant paragraphs of Lahiry are paras. 67 and 69. Mr. Justice Code stated at par. 67:

67 There is now a substantial body of case law dealing with this issue of re-scheduling a trial that has not commenced or that has not been completed on the scheduled trial date. These authorities hold that the case must be given priority in the system and that the delays resulting from re-scheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances. See: R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.); R. v. Allen, supra at pp. 347-351; R. v. Satkunanathan (2001), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.); R. v. M.(R.) (2003), 180 C.C.C (3d) 49 at paras. 6-9 (Ont. C.A.); R. v. W.(A.J.) (2009), 2009 ONCA 661, 257 O.A.C. 11 at paras. 29-43 (Ont. C.A.); R. v. Khan, supra at paras. 58-71, and at par. 69:

69 The other two periods of delay, when setting the third and fifth trial dates, should be apportioned as they were partly due to systemic congestion and partly due to the expanding needs of the case. In R. v. W. (A.J.), supra at paras. 30 and 33, Rosenberg J.A. gave the judgment of the Court of Appeal and dealt with an analogous situation where a jury trial did not proceed on the March trial date. A mistrial was declared because there was only one judge available to conduct the trial and because another case was given priority. The court offered new trial dates in June and July, within three months of the mistrial, but defence counsel was not available. Rosenberg J.A. apportioned the delay as follows:

The question of how to characterize the resulting delay is a difficult one. It seems to me that in principle, since the mistrial was caused by a systemic failure, the delay until the system is able to again accommodate the trial is properly characterized as institutional delay. Thus, from March 19, 2007 until June 4, 2007, [the first date that the Court was available for continuation of the trial] at least, is institutional delay. ... In this case, the delay from June 4 to July 31 [when the Court had available dates but counsel was unavailable] is properly considered to be neutral. The system was available to hear the case, but defence counsel, for perfectly valid reasons was not. The reason for the delay from June 4 to July 31 was made clear on the record. That delay was not waived but the result of unavailability of defence counsel, who had been prepared for trial on the original date but quite properly had scheduled other matters in the reasonable assumption that the respondent's case would proceed as scheduled: see R. v. Godin, 2009 SCC 26, at para. 23.

Therefore, on March 7, 2012, Ms. Frew submitted that the total institutional delay that ought to be calculated by this court should be 11 months and not 9 months as she had previously submitted.

4. Prejudice to the Accused

[21] Mr. Idrees supplied an affidavit in support of this application. In that affidavit at paragraph 3, he states that the delay in processing these charges has caused him significant hardship. He states that he has been unable to find replacement employment in the financial industry. He, of course, lost his initial job because of the charges. He states that he had one interview in particular with Cash Money Inc. for the position of branch manager but was then told that he could not be successful in obtaining the position because of the outstanding charges. He was only able to find a sales job in Ottawa and that was because of a referral from his brother. He states that he has only been able to earn 45% of his previous salary throughout this period while he has been waiting for trial.

[22] In paragraph 4 of his affidavit, he states that because of the decrease in his salary, he has suffered other significant financial hardships such as falling behind on credit card bills and his line of credit. In addition, all of this financial strain has had a deleterious effect on his marriage, resulting in a separation. He can only see his daughter once a month because of his having to work in Ottawa.

[23] He deposes that the stress of waiting for the trial has also caused him to develop a diagnosed condition of depression for which he has been prescribed medication, which he continues to take to the present day. He has sometimes found the stress to be overwhelming waiting for this matter to be finalized, he states. In particular, he said that this problem was significantly exacerbated when the first trial date was frustrated. As a matter of fact, he said that he was finally diagnosed and given the medication for depression after that frustrated trial date of September 6, 2011.

[24] Finally, of course, he points out in paragraph 6 of his affidavit that he has incurred additional legal costs because of the need now to have Mr. Biscoe represent him up to and including the trial date of March 7, 2012 and of course any ensuing dates thereafter if necessary. In addition, he has to travel from Ottawa to Halton to attend trial.

[25] Mr. Biscoe, in paragraphs 25 and 26 of his application record refers the court to those factors which were stated by Mr. Idrees in his affidavit. At paragraph 27, Mr. Biscoe submits that these factors should result in the court adopting the approach that was contemplated by Mr. Justice Sopinka in R. v. Morin, supra, of adjusting the acceptable range of delay of 8 to 10 months in a case in the Ontario Court of Justice downward to at least the lower end of that guideline established by the Supreme Court, namely approximately 8 months. Therefore, he argues, that since the institutional delay that even the Crown now agrees is extant in this case of approximately 11 months is significantly greater than the tolerable delay ought to be, and given the significant actual prejudice to Mr. Idrees, the court should find that there has been a breach of his s. 11(b) Charter right.

[26] The only remedy sought, of course, is a stay of proceedings pursuant to s. 24(1) of the Charter.

Crown's Position on Actual Prejudice

[27] Ms. Frew cautions the court about the judicial peril of falling prey to the same reasoning that was considered to be erroneous by the Ontario Court of Appeal in R. v. Qureshi, [2004] O.J. No. 4711 at para. 40. Mr. Justice Rosenberg of the Ontario Court of Appeal stated in that paragraph:

40 An assessment of prejudice is an important component of a s. 11(b) analysis. The trial judge, however, did not consider whether the respondents were prejudiced by the delay. Significantly, therefore, he made no finding of actual prejudice. Still, because he found a s. 11(b) violation, he likely concluded, implicitly if not expressly, that extensive prejudice could be inferred from the delay itself. If that was his conclusion I respectfully disagree with it.

[28] The Crown breaks down the actual prejudice argument into two categories at paragraph 27 of her response. The first, she submits, refers to prejudice going to the trial process itself and the second consists of a category that refers to prejudice suffered by the applicant as a result of awaiting his trial.

[29] With respect to the first category of prejudice going to the trial process itself, Ms. Frew submits that the applicant has made no submission whatsoever and taken no position that he has suffered any prejudice by this delay which may affect his ability to make full answer and defence in the sense of being able to present evidence, if necessary, and cross-examine the Crown witnesses.

[30] With respect to the second category of actual prejudice Ms. Frew argues that almost all of the factors set out by Mr. Idrees in his affidavit should be considered by the court to be charge-related, as opposed to having been caused simply by the delay in the progress of this case through the courts. At paragraph 30, Ms. Frew argues that s. 11(b) of the Charter does not protect individuals against prejudice arising from the simple fact of the charge being laid but rather protects them against the prejudice arising from the "delay" in processing or disposing of the charges. She refers the court to the decision of the Supreme Court of Canada in the decision of R. v. Rahey, [1987] S.C.J. No. 23 at para. 71.

Societal Interests

[31] Mr. Biscoe did not specifically address this category. However, the Crown did so at paragraph 31 of her response. Ms. Frew submitted that the charges in this case should not be considered by the court to be minor alleged offences and therefore there should be considered to be a strong societal interest in bringing the applicant to a trial on the merits. She submits that this societal interest should outweigh any prejudice that the court may find has been suffered by the appellant because of the delay in his trial being brought to court and, in particular, with respect to the frustrated trial date on September 6, 2011.

[32] In conclusion, the Crown submits that the court should find that there has been no s. 11(b) breach of Mr. Idrees' Charter rights established on the required standard of a balance of probabilities by the factors present in this case. Even if the court should find a breach, the Crown urges the court to carefully consider the admonition of Madam Justice Arbour stated in R. v. Bennett, [1991] O.J. No. 884, at para. 44, a decision of the Ontario Court of Appeal:

44 Both at common law and under the Charter, stays of proceedings for abuse of process have been granted sparingly, and only in the "clearest of cases". A stay is tantamount to an acquittal in that it effectively brings the proceedings to a final conclusion in favour of the accused (R. v. Jewitt, [1985] 2 S.C.R. 128, 21 C.C.C. (3d) 7, 47 C.R. (3d) 193, 20 D.L.R. (4th) 651, 61 N.R. 159, [1985] 6 W.W.R. 127, at p. 148 S.C.R., p. 23 C.C.C.). By granting a stay, the court in effect stands between the accused and the state to prevent what otherwise would be the just resolution, on the merits, of an allegation of criminal conduct.

[33] For all of these reasons, the Crown asks the court to dismiss this s. 11(b) Charter application by Mr. Idrees.

Analysis

[34] I find that the total period of impugned institutional delay after the appropriate deductions for intake and/or neutral periods is either 11 or 12 months, depending on the application of R. v. Lahiry (supra). I believe that both counsel agree.

[35] I find that the applicant did not waive any period of time throughout this proceeding.

[36] On the one hand, I find that the institution acted with dispatch in scheduling the second trial date, but on the other hand I find that the fact that the accused's trial could not be accommodated on September 6 is a discrete factor which certainly adds to the actual prejudice that was suffered by the accused/applicant. Obviously he incurred additional legal expenses that cannot simply be considered to be "charge-related" since he was entitled to have his trial conducted, for which he had retained Mr. Biscoe in the first place, on September 6/11. However, other than that, I agree with the Crown that the remainder of his claimed prejudice was "charge-related" and the totality of the institutional delay was not so excessive as to "convert" that delay into actual prejudice from the inherent prejudice associated with being charged with criminal offences in the first place.

[37] I also agree with the Crown that these charges, at least prima facie, appear to be somewhat more complex than some, both in their nature of forgery and fraud allegations and also in the number of them required to be prosecuted. I find that the societal interest in having them decided on their merits is significant. However, both of these latter points are more relevant to the requested s. 24(1) remedy of a stay of proceedings than they are to the issue of whether or not I find that the applicant has satisfied me on a balance of probabilities that his s. 11(b) right to a trial within a reasonable time has been breached in the first place.

[38] On that central issue I find that the applicant has not quite convinced me on the required balance of probabilities that his s. 11(b) right was breached by the total institutional delay of 11 or 12 months. I say "not quite" for a reason. The fact that his trial was not reached on its first trial date is and always will be an important factor in any s. 11(b) analysis and had the system not been able to offer the second trial date within 5 months and 11 days from September 6/11 and the first date offered of February 17/12, I may have come to a different conclusion.

[39] In the result, the application is dismissed and it is unnecessary for me to adjudicate upon the s. 24(1) issue. I wish to thank both counsel for their competent and thorough submissions.

Released: June 6, 2012

Signed: "Justice Frederick L. Forsyth"