Court File and Parties

Court File No.: Sudbury 11-3606, 12-125, 12-52, 11-3532

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Neil Carmichael-Graham

Before: Justice Andrew L. Buttazzoni

Heard on: March 22, 2013 and April 4, 2013

Reasons for Judgment released: May 7, 2013

Counsel:

• Alexander Kurke for the Crown
• P. Berk Keaney for the accused Neil Carmichael-Graham

Judgment

BUTTAZZONI J.:

[1] Introduction

[1] The accused was charged on September 25, 2011 with assault contrary to S. 266 and assault with a weapon contrary to S. 267(a) of the Criminal Code. The charges relate to serious allegations of domestic violence. On April 4, 2013 the accused applied to have his charges stayed on the basis that there has been a violation of his S. 11(b) Charter rights.

1: GOVERNING PRINCIPLES

[2] In R. v. Morin, [1992] S.C.J. No. 25 at paras. 26-28, Sopinka J., in delivering the judgment of the majority, stated that the primary purpose of s. 11(b) of the Charter is the protection of the individual rights of accused persons, namely:

1. the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings;
2. the right to liberty, which is protected by seeking to minimize exposure to restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and
3. the right to a fair trial, which is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

[3] Additionally, the Court recognized a secondary societal interest. At paras. 29-30 the Court stated:

29 The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 36 C.R. (3d) 73 (Ont. C.A.): "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused..." (p. 96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.

30 There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.

[4] The right of an accused under s. 11(b) of the Charter is to be tried within a "reasonable" time. Delay is inevitable in any prosecution but it is only unreasonable delay that gives rise to a Charter remedy. Determining whether the accused's s. 11(b) right has been infringed requires a balancing of the interests referred to by Sopinka J. in Morin (at paras. 28-30). A determination regarding the reasonableness of the delay requires a consideration of the following factors:

1. the length of the 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.

[5] The determination of when delay becomes unreasonable within the meaning of s. 11(b) is not simply a function of the passage of a certain period of time. There is no mathematical or administrative formula that can be applied to all cases (Morin at para. 31). The balancing of interests approach mandated by the Supreme Court means that the availability of a remedy for delay in bringing a case to trial will depend on the particular circumstances of each case.

[6] The inherent time requirements in any given case are properly viewed as "neutral" in a s. 11(b) analysis. They are attributed to neither the Crown nor the defence.

[7] Recent decisions from our provincial appellate Courts have made it clear that institutional delay does not necessarily start to run from the time the trial date is set. I will have more to say on this point later on in my decision.

[8] To provide guidance on the approximate permissible scope of institutional delay, the Supreme Court in Morin set out the following guidelines: eight to ten months in the Ontario Court of Justice and six to eight months in the Superior Court of Justice. These are not limitation periods but rather factors to be weighed in the overall assessment of the reasonableness of the total delay: see R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.) at p. 345.

[9] The period of delay under scrutiny is from September 25, 2011 through to April 4, 2013, a period of 557 days or roughly 18 ½ months. The Crown concedes that given this period of delay an inquiry by the Court into the reasons for this delay is warranted. The concession is a reasonable one.

[10] The Crown further concedes that there has not been any waiver by the accused with respect to any of the delay.

2: CHRONOLOGY OF EVENTS FROM DATE OF CHARGE TO DATE OF APPLICATION

2:1 September 25, 2011 to September 28, 2011

[11] Accused is arrested, remanded to bail Court and ultimately released three days later. This four-day period of delay is inherent.

2:2 September 28, 2011 to October 7, 2011

[12] The accused is released from bail Court on a recognizance and the matter is adjourned to first appearance Court on October 7, 2011. This delay of 9 days is inherent.

2:3 October 7, 2011 to November 4, 2011

[13] Matter is adjourned to allow for continuing disclosure and counsel pre-trial. This delay of 28 days is inherent.

2:4 November 4, 2011 to December 2, 2011

[14] Matter adjourned at defence request for four weeks as defence counsel was awaiting further disclosure. Crown advises that some disclosure was sent November 3, 2011 relating to a 9-1-1 call. No other indication as to what disclosure was still outstanding. Exhibits filed at this hearing reveal that Mr. Keaney sent a detailed disclosure request on October 6, 2011. The Crown responded with further disclosure on October 24, 2011 and then again on November 3, 2011. Given the serious nature of the charges, I do not find it unusual that the disclosure process is still ongoing at this point. The record does not disclose that defence counsel had any particular concerns about the pace for disclosure. I would consider this delay of 28 days to be neutral.

2:5 December 2, 2011 to January 13, 2012

[15] The matter is adjourned to allow for a judicial pre-trial to be held on January 3, 2012 with a return date on January 15, 2012. When the matter was addressed in Court on December 2, 2011, no complaint was made regarding outstanding disclosure. At this hearing the Crown filed correspondence it had forward to Mr. Keaney on December 23, 2011 advising that there were still some outstanding disclosure issues. At the same time the Crown questioned the relevance of Mr. Keaney's request for police communications. Mr. Keaney replied to the Crown's concerns on January 3, 2012. In his correspondence Mr. Keaney also makes a request for the notes taken by the VWAP (Victim Witness Assistance Program) personnel and copies of criminal records, if any, of all Crown witnesses.

[16] At this point in time it appears that the disclosure was substantially complete. While there were still some outstanding disclosure issues the parties were able to conduct a judicial pre-trial.

[17] The Crown, relying on our Court of Appeal's decision in R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83, submits that this delay should be characterized as inherent, being part of the intake process.

[18] In Tran, supra, at paragraph 34 the Court stated:

… 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.

[19] Mr. Keaney relying on our Court of Appeal's decision in R. v. N.N.M., [2006] O.J. No. 1802, submits that the time required to conduct a judicial pre-trial should be viewed as institutional. At paragraph 33 the Court stated:

As Rosenberg J.A. said in R. v. G. (C.R) (2005), 77 O.R. (3d) 308, at para. 30, the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay. The time that the parties require to prepare for and conduct the pre-trial is inherent time.

[20] While these statements from our Court of Appeal may at first blush appear to be conflicting, a review of the relevant appellate decisions on this point does help to resolve this purported conflict. I start this analysis mindful of what our Supreme Court observed in Morin, supra at para. 43:

Another inherent delay that must be taken into account is whether a case must proceed through a preliminary inquiry. Clearly a longer time must be allowed for cases that must proceed through a "two-stage" trial process than for cases which do not require a preliminary hearing. Equally, a two-stage process will involve additional inherent delays such as further pre-trial meetings and added Court dates. An additional period for inherent time requirements must be allowed for this second stage. This period will be shorter than in the case of the one-stage trial process because many of the intake procedures will not have to be duplicated. (Emphasis added).

[21] The Court recognized, albeit in the context of a matter that involved a preliminary inquiry, that pre-trial meetings in the Superior Court were an inherent part of the process. In my view this rationale should apply to judicial pre-trials or counsel pre-trials in the Ontario Court of Justice when the matter proceeds by way of trial.

[22] In R. v. Chatwell, [1998] O.J. No. 206 (C.A.) our Court of Appeal was considering the 9 week period of delay prior to the judicial pre-trial. At paragraph 11, the Court stated:

In addition, some portion of the nine weeks preceding the setting of the preliminary hearing date while an attempt was made to arrange a judicial pre-trial must also be considered institutional delay. Not all of that period can be attributed to institutional delay, however, because it was due in part to counsel's failure to follow up with the trial co-ordinator. Except for some time allotted to defence counsel's failure to follow up with the trial coordinator, the time spent trying to arrange a judicial pretrial must be considered institutional delay.

[23] Unfortunately, the Court in Chatwell did not provide extensive details regarding the efforts made by defence counsel or the Court while attempting to set the pre-trial date. I note as well that the Court did not discuss the application of Morin while ascribing part of the time as institutional. What is clear however is that not all of the time involved in arranging for a judicial pre-trial was necessarily institutional.

[24] In R. v. C.R.G., [2005] O.J. No. 3764 (C.A.) Rosenberg J.A., made a point of recognizing the utility of judicial pre-trials in the context of case management. In my view the same observations can be made of counsel pre-trials. At paragraph 30 the Court, adopting Chatwell supra, stated:

That said, 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.

[25] Once again, no reference was made by the Court to the Supreme Court of Canada decision of Morin and its views on judicial pre-trials.

[26] Our Court of Appeal next addressed this issue in R. v. Rego, [2005] O.J. No. 4768 (C.A.). At paragraph 4 the Court stated:

Accordingly, the institutional delay was twelve months from November 12, 2003 to November 17 of 2004. The delay from the time when the parties were ready for trial which was November 12 and the judicial pre-trial is part of the systemic delay. This twelve months is well outside the eight to nine month guideline for a straightforward case in Peel Region Ontario Court of Justice. (Emphasis added).

[27] While the Rego decision is brief and without significant historical information regarding the original trial process the decision is nonetheless noteworthy. It appears this would be the first time that our Court of Appeal imports the concept of counsel trial readiness into the attribution calculus with respect to the scheduling of a judicial pre-trial. It would naturally leave open the possibility that if the parties were not truly ready or available for trial when the judicial pre-trial is set, then some portion of that delay can be ascribed as inherent rather than institutional.

[28] The next relevant Court of Appeal decision is R. v. N.N.M., [2006] O.J. No. 1802. At para. 33 the Court states:

As Rosenberg J.A. said in R. v. G. (C.R) (2005), 77 O.R. (3d) 308, at para. 30, the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay. The time that the parties require to prepare for and conduct the pre-trial is inherent time.

[29] In the subsequent Court of Appeal decision of R. v. Cranston, 2008 ONCA 751, [2008] O.J. No. 4414 (C.A.), the Court acknowledged that the delay in scheduling a judicial pre-trial can incorporate both inherent and institutional delay. The institutional delay clock does not begin to run until the parties are prepared and ready for trial. At paragraph 46 the Court stated:

The respondents submit that the second half of this period should be attributed to institutional delay because a judicial pre-trial was being completed. In support of this position, they cite R. v. G. (C.R.) (2005), 77 O.R. (3d) 308 (C.A.), and R. v. Rego (2005), 204 O.A.C. 281. I do not agree. While this Court has recognised that the delay needed to schedule a judicial pre-trial is properly considered institutional delay, the time the parties require to prepare for and conduct the pre-trial may be an inherent time requirement: see R. v. M. (N.N.) at para. 33. Further, during this period, there were other activities taking place such as additional bail proceedings, consent releases and continuing Crown disclosure. In light of both the need for preparation and the other activities, as I have said, 265 days out of 314 days of this time is properly treated as part of the inherent time requirements.

[30] The most recent decision of our Court of Appeal in R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 in my view removes any uncertainty regarding the attribution of delay with respect to the setting of judicial pre-trials. The period of time between the setting of the judicial pre-trial and the hearing of the judicial pre-trial can involve both inherent and institutional delay. Firstly, the Court acknowledges the value of judicial pre-trials in the case management of criminal prosecutions. In this regard judicial pre-trials can be viewed as an inherent and beneficial part of the process. Accordingly one can expect that there should be some reasonable delay in the scheduling and hearing of this inherent process. At paragraph 34 the Court stated:

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. (Emphasis added).

[31] The delay only becomes institutional when the parties are prepared to proceed to the judicial pre-trial and the Court is unavailable to accommodate them. At paragraph 32 the Court stated:

Second, parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the Court is unable to accommodate them. See Morin, at pp. 791-2, 794-5, 805-806. See also Lahiry, at paras. 25-37, citing Morin, R. v. Sharma, [1992] 1 S.C.R. 814, R. v. M. (N.N.) (2006), 209 C.C.C. (3d) 436 (C.A.), Schertzer, R. v. Meisner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.), and R. v. Khan, 2011 ONCA 173, 277 O.A.C. 165.

[32] The transcript of the proceeding on December 2, 2011 is very brief. No mention is made as to counsel availability. It is very difficult therefore to determine when the parties were prepared to proceed and the Court could not accommodate them. In these circumstances, I find that one half of the time, 21 days, is institutional. The remaining 21 days I find to be reasonable, inherent delay which permits for the holding of a judicial pre-trial and permits the parties to clear their schedule and prepare for the judicial pre-trial.

2:6 January 13, 2012 to January 27, 2012

[33] The matter is adjourned two weeks in order to allow defence counsel to obtain instructions from his client. In a perfect world one might expect defence counsel to obtain instructions from his client sometime between the completion of the judicial pre-trial and the next return date. This delay is not excessive and I can take judicial notice that Mr. Keaney is one of the busiest criminal lawyers in Sudbury. Had the delay been longer then it would have been attributed to the defence. In the circumstances, I come to the conclusion that this delay of 14 days is neutral.

2:7 January 27, 2012 to February 10, 2012

[34] On January 27, 2012 the defence seeks a two-week adjournment on the basis "of a disclosure request that he had most recently made." The Crown advised the Court that the disclosure request was made January 26, 2012 and wishes to have a trial date set peremptorily on the next return date (tab 12 of the Applicant's Record). It appears that this disclosure request related to police communications. The Crown wanted Mr. Keaney to establish the relevance of this request. Mr. Keaney replied that such relevance could not be established without knowing what is contained in the communications. The relevance of police communications will depend on the facts of the case. I would not go so far as to say that they would be relevant in every prosecution. They could, for example, be relevant in a case where identity is an issue or where the issue relates to an officer's reasonable and probable grounds for arrest. The record discloses that the Crown eventually agreed to request this information from the police and disclose it to Mr. Keaney. The Crown agreed to this on May 22, 2012, when Mr. Keaney appeared before Justice Fitzgerald seeking a date for a disclosure motion. In the circumstances I find this delay of 14 days to be neutral. The request for this disclosure was made late in the day. From the record before me there is nothing to suggest that the setting of a trial date had to be postponed to accommodate this additional disclosure.

[35] In coming to this conclusion I am guided by the direction of our Court of Appeal in R. v. N.N.M., [2006] O.J. No. 1802 at paragraph 37:

[W]here outstanding disclosure is alleged to explain a defence request for an adjournment, it is necessary to consider what documents were outstanding, when and in what circumstances they were requested, and if their disclosure is mandated by the Crown's constitutional duty of disclosure. Where the defence has made a late request for material with no potential relevance, any delay that results should not be attributed to the Crown. A person charged with an offence should not be able to generate a basis for a s. 11(b) application by making a continuous stream of requests for materials that have no potential relevance, even if the Crown agrees to provide them. Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. As this court stated in R. v. Kovacs-Tator (2004), 192 C.C.C. (3d) 91 at para. 47 (Ont. C.A.): "the Crown is not obliged to disclose every last bit of evidence before a trial date is set."

[36] I am not suggesting that the disclosure request was without merit or that the defence was attempting to generate a delay application by making a "continuous stream of requests for materials that have no potential relevance". I simply find that on the record before me and given the stage of these proceedings a trial date should have been set. There was no need for a two-week adjournment. I consider the delay to be neutral because the information was likely relevant and should have been disclosed in this case. It would be part of the normal disclosure process.

2:8 February 10, 2012 to June 18-21, 2012

[37] On February 10, 2012 a trial date was set for June 18 and June 21, 2012. A review of the record does not disclose available dates for either the Court or counsel. Given the failure of all parties to place their earliest available dates on the record, I propose to apportion the delay of 132 days equally between defence, Crown and institution (44 days).

2:9 June 15, 2012

[38] Due to the illness of a main Crown witness the Crown brought an application to adjourn the trial which was scheduled to commence on June 18, 2012. The application was granted. New trial dates were set for September 10 and 11, 2012. Given that this delay was brought about by the unforeseen illness of a necessary Crown witness, I would attribute this 82 day period of delay as inherent.

2:10 September 10, 2012

[39] As a result of late Crown disclosure, the defence brought an application to adjourn the trial. The application was granted and new trial dates were set for December 5 and 6, 2012. The primary reason for the delay was due to the fact that an important Crown witness (Ms. Robertson) disclosed new information to the Crown during their meeting on August 31, 2012. The purpose of the meeting was to prepare for trial. This new information was disclosed to Mr. Keaney on September 5, 2012. In his application for adjournment, Mr. Keaney stressed that he would not be in a position to properly cross-examine the witness on the new information that she had disclosed to the Crown without conducting his own independent investigation. While there was also late disclosure with respect to another witness, Mr. Keaney's major complaint was with respect to the witness, Ms. Robertson.

[40] There was clearly nothing inappropriate about the Crown interviewing their witnesses and disclosing the new information to the defence. Regrettably, the timing of the interview and the subsequent late disclosure resulted in a delay of the trial. This delay is to be attributed to the Crown.

[41] In response to Mr. Keaney's submissions on September 10, 2012, Assistant Crown Attorney, Ms. Vakiparta stated: "...now unfortunately, it's not perfect in our preparation for trial but trials are like that and often we have witness preparations interviews a week or two before the trial."

[42] I am not blaming the Crown for having conducted an interview of its witnesses late in the day. The fact remains that when the Crown chooses to do so it takes the risk of delaying the trial if new information is disclosed by the witness. I appreciate that the Crown has no control over changes that a witness might make to their previous statement. It does, however, have some control over the timing of the witness interview process. Optimally, these interviews should be conducted well enough in advance of the trial to allow the defence time to respond to any new disclosure. There was no suggestion that factors outside of the Crown's control played any part in the timing of the interviews.

[43] A review of the transcript found at tab 21 of the Application Record discloses that Mr. Keaney was not available until December and that both the Court and the Crown had dates available in November. Given this delay was caused by the Crown it is not realistic to expect busy defence counsel set aside all other matters in order to accommodate this trial continuation. Mr. Keaney's unavailability in November and December would not be surprising. Mr. Keaney's unavailability was not significant and did not cause any unreasonable delay. As stated by our Supreme Court in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at para. 23:

… Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry -- efforts which were ignored -- suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable."

[44] Accordingly, I conclude that this entire period of delay (86 days) is attributed to the Crown.

2:11 December 5 and 6, 2012

[45] Trial commenced but not completed. Matter adjourned to December 12, 2012 in order to set dates for trial continuation. Delay of 6 days caused by inaccurate estimate of trial time is neutral delay.

2:12 December 12, 2012 to January 23-24, 2013

[46] The trial continuation is set for January 23 and 24, 2013. The trial continuation was caused by an inaccurate estimate of initial trial time. Such delays, as noted by our Court of Appeal in R. v. Allen, [1996] O.J. No. 3175 at paragraph 27, are a reflection of the reality of the world in which the criminal justice system operates and a part of inherent time requirements.

[47] Accordingly, the 43 days delay is considered neutral. I note again that the record was silent as to available dates for Crown, defence or Court.

2:13 January 9, 2013

[48] The trial coordinator contacts counsel to advise that I am no longer available to hear the trial on January 23 and 24, 2013 and that new dates will have to be selected for the trial continuation.

2:14 January 23, 2011 to March 22, 2013 and April 4, 2013

[49] New dates were set for the trial continuation dates on March 22, 2013 and April 4, 2013. The delay caused by my unavailability as the trial judge is 64 days. This rescheduling was necessitated by the illness of another Judge in the Northeast region. Given the unforeseeability of such an event I would categorize this delay as neutral.

2:15 March 22, 2013

[50] Crown closed its case. Trial not completed.

2:16 April 4, 2013

[51] The Court entertained argument on the accused's s. 11(b) Charter application. Matter adjourned for decision and to set date for trial continuation.

[52] The total delay can therefore be allocated as follows:

1. Inherent delay – 319 days (10.6 months);
2. Crown and institutional delay – 195 days (6.5 months);
3. Defence delay – 44 days (1.4 months).

[53] The final matter to be considered is the prejudice to the accused. I find that the loss of his first job was related more to the fact that he was charged as opposed to the delay in the prosecution. Additionally, a review of the transcripts reveals that at no time did counsel for the accused express a concern on the record with respect to the effects of the delay on the accused's employment. I accept the evidence of the accused that he eventually paid a significant amount of money in order to be trained and licensed as a long-distance truck driver. Unfortunately his employment was terminated when his employer discovered that the accused had charges outstanding. While there is definitely a causal link between the delay and the loss of this recent employment, the accused undertook this employment strategy after being misinformed as to the effect his outstanding charges would have upon his employment. This factor is totally unrelated to the delay. Ultimately, while I do find that the accused has experienced some prejudice as a result of this delay, I do not find that it is so significant that it would warrant shortening the timelines suggested in Morin.

3: CONCLUSION

[54] Based on my foregoing analysis I come to the conclusion that the combined Crown and institutional delay is well within the Morin guidelines. There is a strong societal interest in having this serious matter completed. Regrettably, much of the delay has been inherent and I am not satisfied that there has been a breach of s. 11(b) of the Charter.

[55] The application for a stay of proceedings is dismissed.

Released: May 7, 2013

Signed: "Justice Andrew L. Buttazzoni"