Court File and Parties

Court File No.: Newmarket Courthouse 11-02845 Date: 2012-07-31 Ontario Court of Justice

Between: Her Majesty the Queen — And — Cam Tieu

Before: Justice Peter N. Bourque

Ruling on 11(b) Application released on July 31, 2012

Counsel:

• Adjoe Adjei, for the Crown
• Alex Trica, for the accused Cam Tieu

Bourque J.:

Charges

[1] The defendant Cam Tieu is charged with production of marijuana, possession of marijuana for the purpose of trafficking and theft of electricity.

Trial Within a Reasonable Time – Section 11(b) Charter of Rights & Freedoms

[2] The defendant makes an application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time" has been infringed.

[3] He further asks that if I find that such an infringement has occurred, then pursuant to the provisions of s. 24(1) of the Charter, the only remedy which is "just and appropriate under the circumstances" is a judicial stay of the charges against him.

Onus

[4] The onus to satisfy me that there has been a Charter breach as alleged is upon the defendant on a "balance of probabilities".

Relevant Time Periods and Actions by the Parties Which Impact Upon the Issue of Delay

[5] Relevant time periods:

• Date of Offence: March 31, 2011 (incorrectly set out as March 19, 2011 on the information)
• Date of Charge: March 31, 2011 – Arrest on scene
• Bail Hearing: April 1, 2011, release on $10,000 surety bail with conditions.
• First Court Appearance: May 4, 2011 – agent for defence counsel attends and receives initial disclosure. Defence seeks the information to obtain the search warrant (ITO). Adjourned to May 18, 2011 for Crown to see if "we need to get an order for the ITO".
• Second Court Appearance: May 18, 2011 – Defence seeks the ITO – Crown denies that the defence has status as defence does not reside at property searched and does not own it (the Crown eventually decided that it should provide the ITO as part of the disclosure). Crown requests a judicial pre-trial. Adjourned to June 8, 2011 for a judicial pre-trial.
• Third Court Appearance: June 8, 2011 – Judicial pre-trial not commenced as the ITO was not produced and judicial pre-trial was adjourned to June 30, 2011 (the ITO was produced later that day but not in time for the judicial pre-trial).
• Fourth Court Appearance: June 30, 2011 – Judicial pre-trial not reached court states, "there is no time today" – New judicial pre-trial date of July 21, 2011 set.
• Fifth Court Appearance: July 21, 2011 – trial date set – first trial date offered was August 8 and 9, 2012 – defence states that the defendant is anxious to proceed.
• First Trial Date: August 8, 2012
• Second Trial Date: August 9, 2012
• Total time from charge to proposed trial completion: 16 months and 8 days
• Total intake time: Charge to first appearance: 1 month and 3 days
• First appearance to first judicial pre-trial: 1 month and 4 days
• First judicial pre-trial to second judicial pre-trial: 22 days
• Second judicial pre-trial to third judicial pre-trial: 21 days
• Total time from first set date to trial completion: July 21, 2011 to August 9, 2012 – 12 months and 9 days

Legal Framework

[6] Section 11(b) explicitly focuses upon the individual interest of liberty and security of the person. Nonetheless there is, at least by inference, a community of societal interest implicit in s. 11(b). The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures. When trial takes place without unreasonable delay, with all witnesses available and memory is fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not will be acquitted and vindicated.

[7] As the seriousness of the offence increases so does the societal demand that the accused be brought to trial: R. v. Morin, [1992] S.C.J. No. 25 at p. 13. This applies not as a separate analysis of the 11(b) issue but is applied throughout the analysis.

[8] To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:

1. The length of 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 delay; and,
4. Prejudice to the accused.

[9] In R. v. Godin, 2009 SCC, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:

"… It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

[10] The Court went on to restate, "…that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice". The Court went on to say:

It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.

Analysis

Length of Delay

[11] In this case the total length of the delay from charge until attendance for the completion of the trial is over 16 months. In my opinion, this length of time requires an inquiry into the reasonableness of the delay.

Waiver of Some or All of the Time Periods

[12] In this proceeding there has been no express waiver of all, or part, of the time periods. To the contrary, the defendant asserted several times, at several appearances, that they wished to set early date and move this matter along to trial.

Reasons for Delay

Inherent Time Requirements of the Case

[13] This is a matter for which the Crown is proceeding by indictment. The defence has elected to be tried in this court. The police investigation was complete by the time of the laying of the charge. The Crown and defence agreed that the trial would take two days. It is a type of case which is routinely dealt with in the Ontario Court of Justice in this jurisdiction. I take notice that, in this jurisdiction, trials exceeding one day in length (especially if the days are to be continuous) are given trial dates much further down the road than a single day trial. It does not change, in my opinion, the range of time suggested in R. v. Morin, but it does make the upper limit of the range as more realistic.

[14] There is therefore no reason in the time requirements of the case that the time frame as suggested in R. v. Morin should not be complied with; that is, an institutional delay period of between 8 and 10 months.

Judicial Pre-Trials

[15] There is conflicting opinion as to whether the time required to conduct a judicial pre-trial is inherent to the case or whether it is institutional delay. In R. v. C.R.G., [2005] O. J. No. 3764, the Court of Appeal, while acknowledging the need to manage lists in the Ontario Court (and the benefits of having them), the court held that the delay is institutional.

[16] In the subsequent case of R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83, the Court of Appeal came to the opposite conclusion. The court sets out the same reasons as the previous court for encouraging the use of judicial pre-trials in busy judicial centres and decided that "some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case".

[17] I agree with the decision in R. v. Tran, and for the purposes of this jurisdiction, I think that a month to schedule, prepare for, and complete a judicial pre-trial is inherent to the case. However, where the pre-trial is delayed or adjourned for reasons not attributable to the defence, then periods beyond the month could cease to be reasonable and thus become institutional or Crown delays. There was a delay for under a month for a judicial pre-trial which had to be adjourned two times. Once because of a failure to provide disclosure and secondly because the court could not accommodate the matter.

[18] I therefore conclude that the delay from March 31, 2011 to June 8, 2011 is intake and a reasonable time for holding the judicial pre-trial. That is 2 months and 8 days. The defendant eventually obtained a trial date on the date the judicial pre-trial was completed. I therefore find that the period from June 8, 2011 to July 21, 2011 is institutional or Crown related delay.

Availability of Counsel

[19] In R. v. Tran the court also stated that "parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel requires time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing…and these times are part of the inherent time requirements of the case". In determining these issues there should be some evidence either at the time the trial date was set, or at the 11(b) hearing, upon which this matter can be ascertained. If not it would appear that the court is free to (as in Tran) substitute its own estimates. In assessing the defence preparation time, obviously the counsel's expertise in dealing with this type of case is a consideration.

[20] The defence as filed an affidavit which sets out that the lawyers for the defendant could have been available early in August 2011 to try this case. The affidavit also indicates that they have expertise and experience in these types of cases and can be ready for trial in a week.

[21] Taking all of these factors into account, I believe that a delay of one month is appropriate for the factors set out in R. v. Tran.

Limits on Institutional Resources

[22] The Crown has not brought to my attention any specific limits on the institutional resources in this jurisdiction.

Total Delay

[23] I find that when one deducts the period from March 31, 2011 to June 8, 2011 (intake period and inherent delay, a period to conduct a judicial pre-trial) and deducts a further month from July 21, 2011 to August 21, 2011 (counsel readiness and availability for trial) then the total delay in this matter is 13 months.

Prejudice to the Accused

[24] The defendant has filed an affidavit which sets out the prejudice that he has suffered as a result of the delay. He testified in court on this application.

[25] In addition to the expected additional emotional pressures, costs of counsel and the preparation for trial, he relates that the delays in this matter have impacted significantly on his familial and emotional relationships. He states that the stress over time has caused him to break up with his girlfriend. He states that he is no longer welcome at family functions. He also states that he has been shunned by friends. He feels that this has grown over time and he was eager to have this matter disposed of. It is clear that the source of the problem lies with the charges themselves. I disagree with the Crown's analysis that there is therefore no prejudice which accrues over time.

[26] I have already cited the excerpts from R. v. Godin, which restates the prejudice resulting naturally from a situation where the guidelines in R. v. Morin are exceeded by a significant amount.

Seriousness of the Charges

[27] The Crown reminds the court that production of marijuana is a serious matter and points out that there were over 1000 plants seized at a residential location where the defendant was found. If found guilty he would face a period of incarceration. I note however, that there is no evidence that there were any firearms involved, or seized, as part of the investigation and there was no violence.

Conclusion

[28] Counsel has cited to me several cases in this jurisdiction where serious drug cases of from 13.5 months (R. v. Nguyen, [2010] O.J. No. 1340) to 12.75 months (R. v. Do, [2009] O.J. No. 3649) and 12 months (R. v. Khoia, [2010] O.J. No. 6022) have resulted in stays for delay.

[29] Each case is based on its own facts. As noted in the recent decision of the Ontario Court of Appeal in R. v. Steele, 2012 ONCA 383, [2012] O.J. No. 2545, a stay should only be granted in the clearest of cases, but it is an error to describe the stay as an "extraordinary" remedy. I find that there is actual prejudice in this case but not overwhelming. Those of us who have practised law for many years can forget the serious and continuing attack on one's psyche and self esteem that an overhanging criminal charge can have. Steele, in my opinion, re-states that inferred prejudice from delay should be given weight.

[30] Weighing all of the factors, I find that the defendant has shown on a balance of probabilities that his right to be tried within a reasonable period of time has been infringed and I therefore pronounce a stay upon all the charges.