Court File and Parties

Court File No.: TORONTO Date: 2012-12-03 Ontario Court of Justice

Between: Her Majesty the Queen — and — Anastasios Michalopoulos

Before: Justice F. Bhabha

Heard on: September 21, 2012

Reasons for Judgment released on: December 3, 2012

Counsel:

• M. Abraham for the Crown
• J. Rosenthal for the accused

BHABHA J.:

Ruling on 11(b) Application

[1] On September 21st 2012 the applicant sought a stay of proceedings under s. 24(1) of the Charter on the basis that his constitutional right to be tried within a reasonable delay under s. 11(b) was violated.

[2] In accordance with the practice in this jurisdiction the application was heard in advance of the trial date, which is scheduled for December 3rd and 4th 2012.

[3] There are many reasons for dismissing the application.

Charge

[4] AM is charged with one count of failing to comply with a recognizance.

[5] The applicant was arrested on August 28th 2011. His trial is scheduled for December 3rd and 4th of this year. The total delay in this case is therefore slightly in excess of fifteen (15) months. The trial date was set in on February 2nd 2012. The ten (10) month delay from February 2nd 2012 to December 3rd 2012 is purely institutional. However, the applicant contends that he was ready to set a trial date as early as December 7th 2011 and the only reason a date was not set at that time is because of the necessity of a judicial pre-trial. The defendant therefore calculates the institutional delay to be approximately twelve months, which he says is unreasonable in all circumstances of this case.

[6] The charge in this case is fairly simple and straightforward. This is not complex matter. The allegation is that the defendant drove his motor vehicle at time when he was subject to a bail condition that he not operate a motor vehicle. The history of this case is not complicated. The only period in dispute is the time period between December 7th 2011, when the issue of a judicial was raised (the pre-trial was scheduled on December 14th), until February 2nd 2012 when pre-trial took place and the trial date was actually set.

Chronology

[7] Although there is only one period of delay whose characterization is disputed, the court is required to review the entire chronology in order to assess the reasonableness of the institutional delay. That chronology is set out below.

First appearance:

[8] On August 28th 2011 the applicant was arrested on one count of failing to comply with a recognizance. He retained counsel without delay.

Second appearance:

[9] On September 28th 2011 initial disclosure was provided. A designation is filed. Officer's notes were still outstanding but an agent for the applicant advised that a pre-trial would be scheduled if counsel was of the view that a pre-trial could be completed in the interim. Otherwise further disclosure would be requested. Crown advises outstanding disclosure should not hold up pre-trial. Matter put over to October 19th at defence request.

Pre-trial scheduled:

[10] Defence made a written request for a pre-trial on October 4th but applicant's name was not legible thereby delaying scheduling of crown pre-trial by two weeks. On October 18th 2011 Ms. Henry from the Crown's office scheduled a pre-trial with the applicant's counsel for October 25th.

Third appearance:

[11] On October 19th the matter has to be put over to conduct the crown pre-trial. The arresting officer's notes are still outstanding. At defence request the matter is put over to November 2nd 2011.

[12] Crown pre-trial took place as scheduled on October 25th 2011.

Fourth appearance:

[13] On November 2nd 2011, the defence advised the court that "Mr. Rosenthal needs to obtain some information from his client...in pursuit of a further Crown pre-trial". Ms. Henry questions whether this return date is realistic but agrees to return on the 9th of November.

Fifth appearance:

[14] On November 9th 2011, Ms. Henry advised the court that there were ongoing discussions between herself and counsel for the applicant. "Counsel is to provide further information to me...we have an ongoing – or a next pre-trial scheduled for November 24th." Ms. Henry and the agent for the applicant agree to return on November 30th 2011.

Sixth appearance:

[15] On November 30th 2011, agent for the applicant asked that the matter go over for a week. The agent advises that counsel for the applicant, Mr. Rosenthal provided materials to Ms. Henry and he is waiting to hear back from her. The crown advised that Ms. Henry's instructions are that a trial should be scheduled and she estimates two to three hours. The applicant's agent cannot set a trial as he has no dates and believes counsel is away. The agent suggest a one week adjournment but doubts counsel will be able to attend on the date suggested; December 7th 2011. The crown advises: "...counsel needs to attend so we can set a trial date, or at least have trial dates available". The court makes it peremptory on December 7th that a date be set.

Seventh appearance:

[16] On December 7th an articling student for an agent appears and advises that a judicial pre-trial was set for February 2nd 2012. Ms. Henry inquired why a judicial pre-trial was necessary. "We are delaying the case two months for a judicial pre-trial that isn't required to set the trial date." Both the court and the crown expresses concern about delay.

Discussions off the record regarding need for judicial pre-trial:

[17] Between December 14th and December 15th Ms. Henry and Mr. Rosenthal exchanged emails regarding the necessity of a judicial pre-trial given the defence estimate of a one (1) day trial. Mr. Rosenthal was prepared to set the date if no pre-trial was required and appears to defer to Ms. Henry as to whether one is necessary.

Eighth appearance:

[18] On December 14th the matter is put over to February 2nd 2012, the date the judicial pre-trial is scheduled. There are discussions about trial estimates and whether a judicial pre-trial is required or a one (1) day trial. Agent appearing for the defence indicated on the record that they are prepared to set date without a judicial pre-trial if one was not required.

Ninth appearance:

[19] On February 2nd the judicial pre-trial took place. Mr. Rosenthal appeared in person and both the trial date and the 11(b) application were scheduled at the same time.

Analysis

[20] The four factors I am required to consider on this type of application are well known:

1. The length of the delay;
2. The reasons for the delay;
3. Presence or absence of waiver by the defence; and
4. Any prejudice suffered by the applicant resulting from the delay.

Length of the delay

[21] The total length of the delay is slightly in excess of fifteen months. It is sufficiently long to warrant an inquiry. The "pure", indisputable institutional delay in this case is ten months. This is the time period from February 2nd when the date was set to December 3rd 2012, the trial date.

[22] The applicant argues that this delay is unreasonable in and of itself given the nature of charge and the absence of any legal complexities that would justify a delay at the upper end of what is considered to be constitutionally tolerable. The defence submits that when one adds the approximately eight-week period for December 7th 2011 to February 2nd 2012 then the delay is clearly intolerable and unconstitutional.

Reasons for delay

[23] The ten month institutional delay required to set the trial date was the result of the lack of available resources to accommodate a one and a half (1.5) day trial earlier than the date provided. The reasons for the delay have to do with whether a judicial pre-trial was mandated by court protocol. The defence maintains that it was ready to set a date in mid December and but for the requirement for a judicial pre-trial a date could have been set eight weeks earlier.

[24] Firstly, counsel's trial estimate for this relatively simple and straightforward matter was for a full day. The crown's estimate was for 2-3 hours. The Crown on the record raised concerns about the delay that judicial pre-trial would cause. There are no similar concerns reflected on the record by the defence.

[25] Both the case management crown and counsel for the applicant appeared to be of the view that a judicial pre-trial was mandated. It was not. I am the administrative judge at this courthouse and have been since January 2012. I have been sitting in this courthouse for six years. I am aware of the protocol regarding judicial pre-trials. They are not required for matters requiring a day of court time or less regardless of the nature of the charges. I note that the protocol for drinking and driving cases has changed and as of it is no longer necessary to have a judicial pre-trial even for matters that may take more than a day. This however is not a drinking and driving case. The charge is failing to comply with a recognizance. As at December 7th counsel's estimate was for a one-day trial. A judicial pre-trial was therefore not mandated. It appears to have been scheduled because counsel thought it was required. See also Justice Clements' comments at paragraph 59 of R. v. Ignani regarding the protocol for judicial pre-trials at College Park.

[26] The record confirms that Mr. Rosenthal was prepared to defer to the crown's understanding regarding the proper protocol. This is completely understandable. However, given the applicant's concerns which are set out in his affidavit, if there was any doubt about the protocol and the impact it may have on securing an early trial date, independent inquiries about the need for a judicial pre-trial could easily have been made.

[27] Counsel cannot choose to defer to the crown's (mistaken) understanding about whether a judicial pre-trial was required and then complain about the delay in securing an earlier trial date.

[28] I find that the six week delay between December 14th and February 2nd cannot be characterized as institutional delay. Rather it is neutral. Both parties thought a judicial pre-trial was required when it was not.

Waiver

[29] I find that there is no express waiver of section 11(b).

Prejudice

[30] The applicant set out in his affidavit some of the prejudice he has suffered since his arrest. The Crown did not cross-examine him on his affidavit.

[31] As an example of the prejudice suffered, the applicant complains that one of the conditions of the applicant's release was that he could not operate a motor vehicle. The applicant is a businessman who has between his various businesses and franchisees employs over 5,000 people. Because of the driving restriction as a condition of his release, he had to task one of his employees to act as his driver. As a result, that employee could not perform his usual job functions.

[32] On September 28th 2011, approximately four weeks later, the applicant had his recognizance varied and he was once again able to drive while conducting business.

[33] While it is unfortunate that the applicant had to incur the expense of having a driver and he was no doubt inconvenienced by the imposition of such a term on his recognizance, it is abundantly clear that any such prejudice flowed from the charge and not the delay. In any event, the prejudice was alleviated early on in the history of this matter.

[34] The applicant also complains that when able to drive, he often asked prospective franchisees to drive because he would be embarrassed were he to be stopped by the police. There was a risk that the outstanding charge would be revealed. This complaint appears to me to be something that arose out of the charges and not the delay per se. There is very little detail in the applicant's affidavit of specific prejudice resulting from the delay.

[35] Regarding his failing memory, I accept that his memory is not likely to be as fresh as on the day of his arrest, but this is not a complicated matter. It is an allegation of driving while under a recognizance with subject to a condition that he not operate a motor vehicle. Based on the record, it appears that the apart from the applicant, the defence plans to call a number of witnesses. This is not a case where the only witness for the defence is the applicant. In the circumstances, the applicant's fair trial interests cannot be said to have not been impaired or compromised such that the drastic remedy of a stay is warranted.

[36] Given the length of the institutional delay in this case which I find to be ten months, I cannot infer prejudice.

[37] The question on this application then is: "purely" and undisputed institutional delay of ten months unreasonable in all of the circumstances? Mr. Rosenthal cited R. v. Morin in support of his argument that the delay is unreasonable given the nature of the charge. That argument however ignores the fact that regardless of the absence of complexity, a day and a half (1.5) of judicial resources have been allocated to hear all of the evidence – particularly the anticipated defence evidence necessary to ensure the applicant has a proper defence. In that sense this is not the "garden-variety", one crown witness case that was contemplated in R. v. Morin.

[38] I therefore find that a delay of ten months while not ideal, in not so unreasonable in all of the circumstances, bearing in mind the absence of any real prejudice occasioned by the delay. For these reasons, the application is dismissed. The parties will appear before me for trial on December 3rd 2012.

Released: December 3, 2012

Signed: _______________________________

Justice F. Bhabha