COURT FILE No.: Newmarket 4911-998-11-00879, 4911-998-10-09158
DATE: 2012·02·01
Citation: R. v. Cyr, 2012 ONCJ 61
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
(Respondent)
— AND —
Cody Conrad Cyr
(Applicant)
Before Justice Peter J. Wright
Heard on December 16, 2011 and January 16, 2012
Section 11(b) Charter Application Written Ruling released on February 1, 2012
J. Fuller ..................................................................................................................... for the Crown
D. Reeve ...................................................................................... for the accused Cody Conrad Cyr
Wright J.:
The Application
[1] Cody Conrad Cyr applies to have a number of charges set out below stayed pursuant to s. 24(1) of the Charter of Rights and Freedoms (“the Charter”) because he was not tried on these charges within a reasonable period of time in violation of the guarantee set out in s. 11(b) of the Charter.
The Charges
[2] Mr. Cyr is charged with the following offences (“the substantive offences”):
Assault upon R.D. between July 17, 2009 and July 19, 2009.
Choking R.D. between July 17, 2009 and July 19, 2009.
Assault upon R.D. between July 24, 2009 and July 26, 2009.
Sexual Assault upon R.D. between August 1, 2009 and August 31, 2009.
Mischief by wilfully damaging the property of R.D. between March 15, 2010 and July 31, 2010.
Criminal harassment of R.D. between August 1, 2010 and September 19, 2010.
Assault upon R.D. between August 1, 2010 and September 19, 2010.
In relation to an information sworn on September 22, 2010.
[3] Mr. Cyr is also charged with a breach offence:
- Offence of breach of recognizance on January 29, 2011.
In relation to an information sworn on January 30, 2011.
The Relevant Dates
September 22, 2010 Defendant was arrested.
September 23, 2010 Defendant was released from custody on re cognizance.
October 12, 2010 Defendant’s first court appearance following release from custody. Counsel appears – not yet retained. Adjourned to November 9, 2009 to review disclosure and secure retainer.
November 9, 2010 Defence counsel appears. Retainer complete and designation filed. Further disclosure. Adjourned to November 30, 2009 to review further disclosure.
November 30, 2010 Defence counsel sets the date of December 8, 2010 at 9:00 a.m. for judicial pre-trail. Trial time estimate of 3 days. The policy in the Ontario Court of Justice – Newmarket is that all trials estimated at longer than 1 day require judicial pre-trails.
December 8, 2010 No judicial pre-trial occurs. Defence counsel indicates that the defendant is questioning retainer and surety matters. Defence counsel requests an adjournment to December 22, 2010 to resolve these issues.
December 22, 2010 Defence counsel indicates that defendant’s Legal Aid application has been denied. Defence counsel requests further adjournment. Judge orders that on return date a judicial pre-trial date will be set pre-emptory on the defendant – with or without counsel. Judge also orders defence counsel to advise on the status of the defendant’s Legal Aid appeal. Matters are adjourned to January 20, 2011.
January 20, 2011 Defence counsel requests an adjournment as the defendant does not have an answer from Legal Aid regarding his appeal. Defence adjournment is denied. Judge orders a judicial pre-trial to occur on February 3, 2011 at 9:00 a.m. with or without counsel in accordance with December 22, 2010 pre-emptory order.
January 29, 2011 Defendant arrested on breach of recognizance related to substantive charges before the court set for judicial pre-trial February 3, 2011. Breach of recognizance charge and bail hearing adjourned to January 30, 2011.
January 30, 2011 Defendant requested adjournment of Bail Hearing to January 31, 2011
January 31, 2011 Defendant requested adjourned of Bail Hearing to February 1, 2011.
February 1, 2011 Defendant was released on recognizance. Breach of recognizance charge adjourned to February 3, 2011.
February 3, 2011 Defence Counsel formally retained. Defence counsel files designation with the court. Judicial pre-trial conducted for all charges. Charges adjourned so that defence counsel can speak to the defendant about resolution and for Crown to speak to complainant and officer about resolution. Matter adjourned to February 22, 2011.
February 22, 2011 Defence counsel requested further adjournment in order to talk to the Crown and defendant. Matter adjourned to March 14, 2011 for judicial pre-trial as a function of resolution discussions.
March 14, 2011 New counsel retained by the defendant. Judicial pre-trial conducted in relation to the setting of trial dates. Trial dates set for February 6, 7 and 8, 2012.
Legal Framework
[4] Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused’s right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused’s right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused’s right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at p. 12.
[5] Section 11(b) also seeks to protect society’s interest in law enforcement by having cases tried on their merits and by having accused persons tried quickly and fairly. As the seriousness of the offence increases, so does the societal demands that the accused be brought to trial, R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 and R. v. Qureshi 2004 40657 (ON CA), [2004] O.J. No. 4711 (Ont. C.A.).
[6] 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:
the length of the delay;
waiver of time periods;
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
- prejudice to the accused.
Application of the Analytical Framework to this Case
1. Length of Delay
[7] It is approximately 16. 5 months from the date of Mr. Cyr’s arrest (September 22, 2010) and the date Mr. Cyr’s trial is scheduled to begin (February 6, 2012). A 16.5 month delay from date of arrest to the commencement of trial requires an examination of the factors set out in R. v. Morin, supra.
2. Waiver
[8] On the substantive charges there is no suggestion that Mr. Cyr waived any delay.
[9] The analysis in this case is clearly focussed on the third and fourth factors set out in R. v. Morin, supra - (reasons for the delay and prejudice to the accused) followed by the balancing of the interests protected by s. 11(b) of the Charter.
3. Reasons for the Delay
[10] An analysis of the factors set out in R. v. Morin, supra (the “Morin factors”) is best considered by a review of the history of this case as it proceeded through the Ontario Court of Justice.
(a) September 23, 2010 – November 30, 2010
[11] This intake period (2 months and 9 days) is part of the inherent time requirements of the case. It spans the period of time from the date Mr. Cyr was arrested – September 23, 2010 to the date for the scheduling of the judicial pre-trial – November 30, 2010. A judicial pre-trial was required in this case as Crown and defence counsel estimated 3 days of trial time. This trial estimate triggered the provisions of the Ontario Court of Justice trial management policy at Newmarket which requires a judicial pre-trial in all cases estimated to take more than 1 day of trial time.
(b) November 30, 2010 – January 20, 2011
[12] On November 30, 2010 a judicial pre-trial was scheduled to take place on December 8, 2010.
[13] On December 8, 2010 defence counsel advised the court that there was a fundamental problem in his relationship with the defendant and as such there was no way in which he could conduct a meaningful judicial pre-trial or even schedule a new judicial pre-trail. Defence counsel requested and the court permitted an adjournment of these proceedings to December 22, 2010 to permit defence counsel to attempt to rehabilitate his relationship with the defendant and to further advise the court.
[14] On December 22, 2010 defence counsel reiterated the continuing fundamental problems of his relationship with the defendant, which was centered around retainer issues and the denial of legal aid coverage, among other issues. Defence counsel requested a 3 week adjournment. The court adjourned the matter to January 20, 2011 on the basis that it was “peremptory to set a date for a judicial pre-trial – with or without counsel”.
[15] On January 20, 2011 defence counsel again voiced concerns about the fundamental problem of the solicitor/client relationship which he had earlier expressed on December 8 and December 22, 2010. Acting on the peremptory order of December 22 the court ordered that the judicial pre-trial on these proceedings take place February 3, 2011, with or without counsel.
[16] The failure of the judicial pre-trial to take place on December 8, 2010 and the delays created from November 30, 2010 to January 20, 2011 were caused by the actions of the defendant.
(c) January 20, 2010 – February 3, 2010
[17] On January 20, 2010 the court scheduled a judicial pre-trial to take place on February 3, 2010 – with or without counsel – in accordance with the pre-emptory order of December 22, 2010..
[18] Is the 14 day delay, between January 20, 2010, the order date and February 3, 2010 the judicial pre-trial date, institutional delay or part of the inherent time requirement?
[19] The resolution of this issue is significant. Indeed in some cases it may be determinative.
[20] Two decisions of the Ontario Court of Appeal speak to this issue but each case reaches opposite conclusions – one case supports the view that the delay should be seen as institutional and one case supports the view the delay should be seen as part of the inherent time requirement.
(i) Institutional Delay
[21] In R. v. C.R.G. 2005 32192 (ON CA), [2005] O.J. No. 3764 (Ont. C.A.), Rosenberg J. A. expresses the view at paragraph 30 that this delay is part of the institutional delay. More specifically Rosenberg J.A. isolates this issue and deals with it at the conclusion of his judgment:
In my view, reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists. That court has seen a huge increase in its caseload so that, according to statistics filed in the Morin case, it handles 95 percent of criminal cases in Ontario: see R. v. Morin, at p. 27. It is entirely reasonable that the court attempt to take measures that will reduce the impact of cases that are expected to be a particular burden on resources. The purposes of the judicial pre-trial are, in part, to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of the time required to hear the case…I do agree that the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case. See R. v. Chatwell (1998), 1998 3560 (ON CA), 122 C.C.C. (3d) 162 (Ont. C.A.) at para. 11.
(ii) Inherent Time Requirement
[22] In R. v. Tran 2012 ONCA 18, [2012] O.J. No. 83 Simmons J. A. expresses the view that this delay is part of the inherent time requirement. Simmons J.A. expresses her view at paragraph 34:
Dealing first with the judicial pre-trial delay between December 4, 2009 and January 19, 2010, it seems to me that requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.
[23] No reference is made by Simmons J.A. in Regina v. Tran, supra to the views expressed by Rosenberg J. A. in R. v. C.R.G.
[24] It will remain for the Ontario Court of Appeal to provide clarification on these apparently conflicting and divergent views.
[25] In this case the court favours the view expressed by Rosenberg J. A. in R. v. C.R.G., supra. The language used by Rosenberg J. A. was direct, clear and declarative. The use of the language:
“I do agree that the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, and not an aspect of the inherent time requirements of the case.”
[26] The language employed by Simmons J. A. in R. v. Tran, supra was far more conditional – indeed it may even allow for the proposition that in certain cases the scheduling of a judicial pre-trial may be seen as institutional and may not be inherent:
“Accordingly some reasonable period of the delay in arranging the judicial pre-trial should be treated as part of the inherent time requirements of the case.”
[27] In this case Mr. Cyr faces very serious charges. On January 20, 2011 he was without retained counsel. A judicial pre-trial was set for February 3, 2010 by order of the court -with or without counsel. The 14 day delay was a function of a court order made in furtherance of a trial management policy of the Ontario Court of Justice in Newmarket which requires judicial pre-trial in cases which are estimated to last more than 1 trial day. The 14 day of delay was birthed in the environment of a court order. It is my view therefore that the delay is institutional.
(d) February 3, 2011 – March 14, 2011
[28] On February 3, 2011a judicial pre-trial took place. Defence counsel confirmed that he had been retained by the defendant and filed a designation.
[29] Rather than setting a date for trial or a preliminary inquiry following the judicial pre-trial, defence and Crown counsel requested a further adjournment to February 22, 2011 to determine if counsel might “work out a possible resolution” as represented to the court.
[30] As a result of counsel’s request the case was adjourned to February 22, 2011.
[31] On February 22, 2011 defence counsel attended in court and requested another adjournment to March 14, 2011 to allow for continued discussions between counsel and indicated that they had enlisted the assistance of the judge for a continuing judicial pre-trial. A reading of the transcripts in this application makes it very clear that this judicial pre-trial, spoken of by counsel, was completely resolution oriented. The judge was involved in the process of discussion between counsel to assist in facilitating counsel’s discussions regarding resolution. The judge was not involved as part of the mandated judicial pre-trial process pursuant to the trial management policy of the Ontario Court of Justice in Newmarket referred to earlier.
[32] Sometime following defence counsel’s attendance at court February 22, 2011, Mr. Cyr discharged his counsel and retained Mr. Reeve as his new counsel.
[33] On March 14, 2011 Mr. Reeve attended court. The judicial pre-trial on March 14, 2011 proceeded but not as one designed to facilitate resolution as had been intended pursuant to counsel’s earlier representations on February 22, 2011 – rather it was conducted on the basis of this matter proceeding to trial. Trial dates of February 6, 7 and 8, 2012 (3 days) were set. Other matters related to the trial management were completed.
[34] The institutional delay which I have found occurred as a function of the judicial pre-trial policy at the Ontario Court of Justice in Newmarket was spent between January 20 and February 3, 2011. This is clear as a date for trial could have been set on February 3, 2011.
[35] The delay which occurred from February 22 to March 14, 2011 was inherent delay as it was a function of defence and Crown counsel’s expressed desire to continue resolution discussions. No material was filed in this application indicating otherwise and certainly no material was filed which would indicate that the responsibility for this further delay was institutional in nature.
[36] As such the entire period from February 22, 2011 to March 14, 2011 is part of the inherent time requirements of this case.
(e) March 14, 2011 – February 6, 2012
[37] On March 14, 2011, immediately following the judicial pre-trial, Mr. Reeve set the trial dates of February 6, 7, and 8, 2012.
[38] What portion of the time period between March 14, 2011 to February 6, 2012 can be considered institutional delay?
“Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them” R. v. Tran, supra para. 32.
[39] In this case Mr. Reeve acknowledged that he was not ready to proceed to trial on March 14, 2011 but would have been ready to proceed to trial as early as April 4, 2011. Crown counsel accepted Mr. Reeve’s assertion.
[40] Institutional delay in this case therefore spans a portion of this time period beginning April 4, 2011 when Mr. Reeve was available to try this case through to February 6, 2012 which is the date set for the commencement of this trial. This institutional delay amounts to 10 months and 2 days.
Dates
Delay
Morin Factors
September 23, 2010- November 30, 2010
2 months and 7 days
inherent
November 30, 2010 - January 20, 2011
1 month and 20 days
actions of the defendant
January 20, 2011 – February 3, 2011
14 days
institutional
February 3, 2011- March 14, 2011
11 days
inherent
March 14, 2011 –
February 6, 2011
1 month and 16 days
inherent
March 14, 2011 – April 4, 2011
21 days
inherent
April 4, 2011 - February 6, 2012
10 months and 2 days
institutional
[41] Total institutional delay amounted to 10 months and 16 days which is 16 days beyond the 8-10 month of delay set out in the Morin guidelines.
4. Prejudice to the Defendant
[42] In the context of the s. 11 (b) calculus is concerned with three interests of defendant:
Liberty
Security of the person
The right to make full answer and defence
(R. v. Morin, supra; R. v. Godin [2009] C.C.C. 26)
[43] A review of the materials filed and the submissions made by counsel in relation to prejudice support the view that much of the prejudice – be it actual prejudice asserted or prejudice inferred by the passage of time came about as a result of the fact the defendant was charged with sexual assault, but not due to delay of the proceedings.
[44] While there have been difficulties – even some hardships incurred by the defendant while on bail, none of these difficulties, in the court’s view, impact upon the concept of actual prejudice or even inferred prejudice which would otherwise affect the defendant’s right under the provisions of s. 11 (b). A review of the three interests with which prejudice may play a role in the context of s. 11 (b) calculus reveals the following:
Liberty – throughout the time period in question the defendant has remained at his liberty, save and except the 4 days he spent in custody between January 29, 2011 and February 3, 2011, when he was arrested and detained on a charge of breach of recognizance.
The defendant’s security of the person has been affected in the sense that he may not be free from the stress and cloud of suspicion that accompanies the serious criminal charges that he faces but in the view of the court that affect has not resulted in the type of prejudice – either actual or inferred – as contemplated in the context of the s. 11 (b) calculus.
There has been no prejudice to the defendant’s right to make full answer and defence. There has been no assertion that evidence has been lost or discarded or in some other way compromised. The defendant submits that his memory and the memory of others fade through the passage of time, but memory fades for everyone during the passage of time. Here it could be said that the complainant’s memory has faded in equal measure – a fact that actually benefits rather than prejudices the defendant.
[45] Undoubtedly the defendant has suffered as a result of the serious criminal charges. It would be difficult to imagine anything to the contrary. During the currency of the substantive charges before the court the defendant was arrested on January 29, 2011 for a breach of recognizance, held in custody and released on February 3, 2011 on stricter terms, which included a type of house arrest. These stricter terms came about as a result of the alleged conduct of the defendant in breaching his recognizance while he was at his liberty awaiting a trial on the substantive charges. During the entire period of time prior to commencement of the trial scheduled to proceed February 6, 2012 the defendant has done little to alleviate against the terms of the recognizance, which he asserts were onerous and prejudicial. He did seek a bail variation on one occasion to permit him to play lacrosse, in a recreational league, and that was granted on consent by the Crown. A careful review of the materials filed and submissions made leads this court to conclude that there has been minimal or no prejudice suffered by the defendant within the s.11 (b) calculus.
Balancing the Individual and Societal Interests
[46] In this case the overall delay is approximately 16.5 months from the date of arrest and charge to the date of trial.
[47] Of this total 4 months 9 days of delay is part of the inherent time requirements of this case and therefore neutral.
[48] 1 month and 20 days of delay were caused by the defendant’s actions.
[49] 10 months and 16 days of delay are institutional in nature. It is outside the Morin guidelines of 8 to 10 months. It is this time period which must be assessed in the context of determining whether the defendant’s right to trial within a reasonable period of time as guaranteed under the provisions of s. 11 (b) has been violated
[50] As Sopinka J. noted in R. v. Morin:
“The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay”.
[51] The Supreme Court of Canada and the Ontario Court of Appeal have repeatedly rejected the notion of any type of judicially created or imposed “limitation period” or the application of mathematical and administrative formula when determining whether there has been a violation under s. 10 (b).
[52] The Ontario Court of Appeal has emphasized that the societal interest in assuring that matters are tried on their merits in R. v. Qureshi, supra, Laskin J. A. found that the “marginal prejudice” caused by delay must be weighed against the considerable prejudice to society’s interest caused by a stay of the proceedings (R. v. Kovacs-Tatar [2003] O.J. No. 4756 para. 58 (Ont. C.A.) and R. v. Qureshi, supra).
[53] This is a complex and complicated case scheduled to last for 3 days. A number of offences are alleged to have been committed by Mr. Cyr (see substantive offences) over a span of 14 months. The charges include allegations of penile and digital penetration with anticipated testimony from 6 Crown witnesses – police and civilian – together with videographic and photographic evidence.
[54] While this is a close case I am not satisfied that the defendant has met the burden of establishing, on a balance of probabilities, that his right to a trial within a reasonable period of time, as guaranteed under the provisions of s. 11 (b), has been violated or infringed.
[55] Accordingly the application is dismissed.