Citation: R. v. Bao, 2012 ONCJ 53

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

HONG-MAN BAO

Before Justice H. Borenstein

Heard on January 27, 2012

Reasons for Judgment released on February 3, 2012

Joseph Hanna ............................................................................................................ for the Crown

Peter Lindsay ................................................................................... for the accused Hong Man-Bao

BORENSTEIN J.:

[1] Mr. Hong-Man Bao is charged with impaired driving and driving while “Over 80”.

[2] He applies to stay the charges alleging unreasonable delay.

[3] The framework for analysis is well known. The Court looks at the length of time it has taken to bring a case to trial, less any time period waived by the accused. If that period is long enough to cause concern, the Court must examine the reasons for any delay, such as inherent time required to prepare a case, actions of the Crown, action of the accused short of waiver that delayed the proceeding, limits on institutional resources or any other reason for the delay. The Court must assess any prejudice to the accused caused by the delay. The Court then weighs all those factors having regard the interests section 11(b) is meant to protect and the societal interest that trials be determined on their merits.

[4] If the delay is unreasonable, a stay must be granted. If not, the trial continues.

[5] On Sept 9, 2010, Mr. Bao was involved in an accident. He was released from the police station after providing breath samples.

[6] On Sept 21, 2010, the information was sworn charging him with these offences.

[7] October 28, 2010 was Mr. Bao’s first Court appearance by which time he had retained counsel. At the first appearance, Mr. Bao attended Court and received disclosure.

[8] The case was adjourned to November 25 to allow the defence to review the disclosure and conduct a crown pre-trial.

[9] On November 25, a judicial pre trial was scheduled for December 6, 2010.

[10] In this jurisdiction, judicial pre trials on impaired driving charges can be held any date the matter is in Court. Nonetheless, the matter was adjourned at the defence request to December 6.

[11] On December 6, at the judicial pre-trial, it was estimated that one and a half days were required for trial. Counsel indicated that Mr. Bao did not require an interpreter.

[12] A one-and-a-half day trial was scheduled for June 23 and 24,2011, 6 ½ months after the December 6set date. Those were the first dates the Court could offer. Defence counsel indicated that he was available on earlier, unspecified, dates.

[13] In February 2011, Mr. Bao changed lawyers and hired Mr. Lindsay. Mr Lindsay was unavailable on June 23 and brought a motion for an adjournment of the June trial. The motion was granted and, on February 23, 2011, a new trial was scheduled for July 26, and 27, 2011, one month later than the originally scheduled trial.

[14] Turning to the July 26, 2011 trial, although prior counsel advised that Court that Mr. Bao did not require an interpreter, a fully accredited Cantonese speaking interpreter was in Court on July 26and Mr. Lindsay indicated that the interpreter was required.

[15] The trial began but for a variety of reasons, some personal to counsel, the proceedings were struck on consent and a new trial date was scheduled for November 14 and 24, 2011. When adjourning the trial, defence and Crown counsel indicated that the period between July 26 and the November trial date should be characterized as neutral for 11(b) purposes. A fully accredited interpreter was requested for the November trial date.

[16] On November 14, the fully accredited interpreter unexpectedly cancelled but left a message that he could attend Court on the November 24 date. A conditionally accredited Cantonese interpreter was in Court. Mr. Lindsay was not prepared to proceed with a conditionally accredited interpreter. The presiding trial judge indicated that the issue was competence not accreditation and suggested that a voir dire be held into the competence of the interpreter. Mr. Lindsay indicated he was not in a position to engage in a voir dire at that time as he wanted to assemble case law on whether a voir dire was required and, and, if so, on the issues relevant to the voir dire. He also indicated that a voir dire would take the better part of the day and, given that a fully accredited interpreter was expected on the next date, he suggested that the practical solution was to adjourn to the next date. The trial judge agreed to adjourn the matter to November 24. On November 24, the fully accredited interpreter was again absent but a conditionally accredited interpreter was present. Crown counsel indicated that he wanted to proceed with a voir dire. Mr. Lindsay submitted that, prior to making submissions on whether there should be a voir dire which he submitted “would take up much of the day”, he suggested canvassing new dates with the trial coordinator.

[17] After attending the trial coordinator’s office, Crown counsel indicated that four single dates were available in November and December and numerous single dates in January but that, if two days were required, the matter would have to go to February 21 and 22. There is no issue that two days were required. The Crown expressed concern about a potential 11(b) application and suggested they proceed with the voir dire into the competence of the interpreter and possibly commence the trial. Mr. Lindsay indicated that he was unavailable on the November and December dates offered but was available on the two dates in February and suggested that they be set. The trial judge agreed to adjourn the case and set the February dates. In the interim, Mr. Bao has brought this 11(b) application.

[18] The application was heard on January 27 with the assistance of a fully accredited interpreter. Mr. Bao swore an affidavit and was cross examined. His affidavit indicates that the contents were translated to him by a Cantonese interpreter.

[19] Mr. Bao moved to Canada from Hong Kong 15 years ago when he was 16 years old. In Canada, he attended high school in English. His text books were written in English and he graduated high school. He then went on to complete a four-year engineering degree at the University of Waterloo. His universities studies were in English. For the last seven years, he has worked as a computer programmer in English. He speaks Cantonese with his family and close friends.

[20] Despite the fact that he studied and works in English, he testified that he thought he would only get the major points of what was said in Court without an interpreter. He was shown his own affidavit and asked which English words he did not understand in his affidavit. He reviewed his affidavit in English and replied that he had difficulty understanding the words “compromise” and “deteriorate”.

[21] According to Mr. Bao’s evidence, his anxiety increases as each trial date approaches. He is concerned he will not remember details of the events. However, he testified that his lawyer took notes of his meetings and that he reviews those notes before each trial date.

[22] Mr. Bao swore that he had to take vacations at awkward times for each of the trials. He had to pay extra fees for his toxicologist due to the missed trial dates. He paid the toxicologist’s for July 26 and 27, and then a further $621.50 for both November 14 and 24 when the trial did not proceed. He will pay that same amount on February 20 and 21.

[23] That was the evidence called.

[24] I now turn to how the various time periods leading to the trial ought to be characterized.

September 21, 2010 swearing of information to the December 6 set date.

[25] With one exception, both counsel agree that the period of time between the swearing of the information and the December 6 set date should be characterized as neutral intake for the purposes of this application.

[26] Mr. Lindsay submits that the period of time leading to the first Court appearance on October 28, 2010 was too long. He submits two weeks would have been sufficient. In my view, five weeks from swearing the information or seven weeks from the alleged offence date to the first appearance is a reasonable period of time and has been recognized as reasonable in numerous cases. This is not the only case the police generate that enters the Court system. That length of time permits the police to prepare and deliver disclosure to the Crown, the Crown to vet the disclosure, it allows an accused to appear for prints, to retain counsel and to generally facilitate the Court process. I view this period as neutral for 11(b) purposes. Accordingly, the period between the swearing of the information and the December 6 set date is neutral.

December 6, 2010 set date to June 23, 2011 trial date

[27] The trial was initially scheduled for June 23, 2011, 6 months and 17 days after the set date.

[28] The recent Ontario Court of Appeal decision in Tran and Vuong (2112) O.J. No. 83 (Ont. CA) which approved of the decision in Lahiry et al. (ONSC 6780) (Ont. S.C.) , provides guidance.

[29] Counsel are usually not prepared to conduct a trial on the set date. Time is required to prepare for the trial and that time ought to be considered part of the inherent time requirements, not institutional delay. Moreover, counsel have other cases to prepare and try as well. It is unrealistic to presume that counsel are able to prepare and litigate the case on the set date appearance. Counsel should indicate the first date they are in a position to proceed with the trial. As the Court of Appeal noted in Tran, without doing so, it would be difficult if not impossible for the Court to properly assess how much time is required to prepare the case in light of other commitments.

[30] By way of example, in this case, Mr. Lindsay was unavailable on June 23 and the single dates offered in November and December. I recognize that two dates were not available in November and December. I note this to illustrate that counsel have other cases.

[31] While counsel on December 6 did not explicitly state all of his available trial dates, he did indicate that June 23 was the first date the Court could provide and that he did have earlier, unspecified dates. Therefore, even though dates were not explicitly placed on the record, I will nonetheless deduct one month to account for preparation and other commitments, Accordingly, the institutional delay from the set date to June 23, 2011 is five months and 17 days.

Changing counsel

[32] When Mr. Bao changed counsel, Mr. Lindsay brought an application for an adjournment on February 22 as he was unavailable on June 23 due to other commitments. The adjournment was granted and, on February 23, a new trial date was set for July 26.

[33] The Crown submits that the February adjournment reveals that Mr. Bao was not in a position to set a trial date until February and that the entire period from the swearing of the information and February 23, 2011 ought to be treated as neutral intake or defence delay.

[34] Mr. Lindsay submits that only the one additional month between the June 23 and July 26 trial dates should be characterized as defence delay.

[35] I agree with the defence position as it relates to this period of time. When Mr. Bao decided to change lawyers, he promptly brought an adjournment application and set a new trial date which was one month after the originally scheduled trial date. A fair view of what occurred is that the conduct of the defence added one month to these proceedings. It would be unfair and ritualistic to characterize the entire period of time leading to the February set date as either neutral or defence delay. Accordingly, the period between June 23 and July 26is delay caused by the defence.

[36] Both counsel concede that the period between July 26 and November 16 should be treated as neutral for 11(b) purposes.

[37] Accordingly, before assessing where the delay falls due to the November adjournment, I view the delay to November 16 as follows:

• September 21, 2010 swearing of information to December 6set date – neutral intake

• December 6, 2010 to June 23, 2011 trial date – 5 months and 17 days institutional delay, one month inherent delay

• June 23, 2011 to July 26 – defence delay

• July 26 to November 14 – neutral

[38] Therefore, to November 14, 2011, there were five months and seventeen days of institutional delay.

[39] The period of time from November 14,2011 to February 21, 2012 is an additional three months and one week.

[40] If that entire period were characterized as institutional delay, that would bring the institutional delay to just under nine months, well within the guidelines referred to in Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 (SCC) and R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (SCC)

[41] However, I do not view the period from November 14 as institutional delay. I view it as delay caused by decisions of the defence. Given Mr. Bao’s proficiency in English, defence counsel ought to have taken up the Crown and Trial Judge’s suggestion that a voir dire be conducted. Competence is the issue, not accreditation. In this case, it appears as though Mr. Bao might need assistance with very few words. He himself would know what words he did not understand. That level of interpretation could have likely been accommodated and provided by the conditionally accredited interpreter. The decision not to participate in the voir dire was an unreasonable decision made by the defence and the delay was caused by that decision. Therefore, the operative delay in this case is approximately five and a half months.

[42] Regardless of whether it was five and a half months or closer to nine months, I would not stay the proceedings.

[43] Section 11(b) seeks minimize the prejudice that delay can cause to an accused’s liberty, or fair trial interests or to their security of the person, usually in the form of stress and anxiety that most people experience when facing criminal charges. Prejudice can be inferred and it can be specifically proven.

[44] There is no prejudice to Mr. Bao’s liberty interests.

[45] I am not satisfied that there is any significant prejudice to his ability to make full answer and defence. While he is concerned that he might not be able to recall all the details of the events, that is a risk that exists in every case. There is always a risk that memories fade over time. There is nothing in this case to cause me to find that there is such a risk to a significant degree. Moreover, Mr. Bao has the ability to review notes that were made by his counsel proximate in time that likely contain relevant details.

[46] Mr. Lindsay also submits that Mr. Bao had to expend funds for the toxicologist on trials that had to be adjourned.

[47] The amount of money wasted by the November adjournment in relation to the toxicologist was $1,243.00. That amount, or even twice that amount, is not an amount significant enough to make a difference in this case. I have no evidence concerning Mr. Bao’s income or his financial circumstances. Regardless of the amount, as I indicated, I find that the defence was responsible for the case not proceedings in November.

[48] Mr. Lindsay submits that Mr. Bao suffered prejudice in a further fashion. The Crown requires a toxicologist’s report to proceed with the Over 80 charge. The Crown did not have the report on the prior trial dates but now does. Mr. Lindsay submits that this amounts to prejudice to Mr. Bao, in effect, the Crown was able to fix its case between the last court date and the next one.

[49] That is not the type of prejudice that section 11(b) seeks to protect.

[50] The Crown advised Mr. Bao at the judicial pre-trial that it would seek to tender a toxicologist’s report. The fact that they did not have it at an earlier trial that did not proceed is irrelevant. The Crown’s brief is not frozen in time. There is no suggestion that the lack of an interpreter was a subterfuge to have the case adjourned. Moreover, as indicated, the Crown was prepared to proceed in November presumably without the toxicologist’s report.

[51] I also consider the societal interest that those who allegedly commit criminal offences have their guilt or innocence determined on the merits.

[52] In this case, on balance, there has been no violation of Mr. Bao’s right to be tried within a reasonable time. The case will continue.

Released: February 3, 2012

Signed: “Justice Borenstein”