Court File and Parties
Court File No.: Not provided
Date: January 28, 2013
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Faisal Ahmed
Before: Justice Heather McArthur
Heard: November 26, 2012
Reasons for Judgment released: January 28, 2013
Counsel:
- B. Cohen, for the Crown
- E. Ashurov, for the accused
McArthur, J.:
A. Introduction
[1] On December 5, 2011, Mr. Faisal Ahmed was arrested for impaired driving and "over 80" contrary to section 253(1) of the Criminal Code. The information relating to this charge was sworn on December 19, 2011.
[2] Mr. Ahmed's trial is scheduled to start on January 28, 2013. On November 26, 2012, Mr. Ahmed brought an application pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms seeking a stay of proceedings on the basis that his right to be tried within a reasonable time, as guaranteed by section 11(b), has been infringed.
[3] In this application Mr. Ahmed bears the onus of proving a breach of his section 11(b) right on a balance of probabilities. If he is successful in establishing a violation of his right to be tried within a reasonable time, a stay of proceedings is the only appropriate remedy.
B. Chronology
[4] The basic chronology of events is as follows:
December 5, 2011: Mr. Ahmed was arrested for impaired driving and "over 80".
December 19, 2011: The information was sworn.
January 3, 2012: Mr. Ahmed retained counsel.
January 13, 2012: Mr. Ahmed's matter was in court for the first time. Counsel appeared on his behalf pursuant to a designation. The Crown provided initial disclosure. The matter was adjourned to February 3. After reviewing the materials provided, counsel sent a request for further disclosure. Counsel requested the typed notes of PC Szajkowski (as counsel believed the notes were illegible), the booking, breath room and release video recordings of his client, and a number of other items[1].
February 3, 2012: Counsel appeared on behalf of Mr. Ahmed for the second time. He advised the court that he was waiting for the further disclosure requested on January 13. Crown counsel suggested adjourning the matter to another date, with a Crown pre-trial being held in the interim. She also said that she did not see a letter from counsel in the brief. Defence counsel responded that he needed the video recordings and the arresting officer's legible notes before he could conduct a pre-trial. With respect to the notes of PC Szajkowski, the Crown stated, "from my perspective they are legible notes, they're big clear handwriting, those are legible notes that private counsel wants a Crown to sit down with him, we can certainly review it." Defence counsel responded, "maybe that's what we will have to resort to but, in the mean time, I'm still waiting for video disclosure." The matter was adjourned to February 17. Following court, defence counsel sent a second request for the further disclosure. Counsel noted that his client was anxious to proceed, and that at a minimum, he required the booking, breath room and release video recordings of his client, and the typed notes of the officer in order to conduct a Crown pre-trial.
February 17, 2012: Counsel appeared on behalf of Mr. Ahmed for the third time. Crown counsel gave a package of paper disclosure and suggested that counsel attend at the Crown's office to see if the DVD's were there. The matter was adjourned to March 2. Crown counsel noted that a lot of disclosure had been given out and that the Crown "would like to get a Crown pre-trial done between now and March 2." Defence counsel responded that he required the "visual disclosure" first. The case was re-addressed later in the morning, when it became apparent that the wrong disclosure package had been provided; the material given out in court had nothing to do with Mr. Ahmed's case. With respect to the missing disclosure, the Crown indicated, "now we're going to really get our efforts going to try to find everything."
March 2, 2012: Counsel appeared on behalf of Mr. Ahmed for the fourth time. The disclosure was still not available. Crown counsel said he could not see any requests for further disclosure in the brief, and asked counsel to send another request. The Crown, he said, would "double up on our efforts to ensure that it's here." Following court, counsel sent a third request for disclosure. Counsel reiterated his comments about the material needed to conduct a pre-trial. In addition, he wrote, "Please note that Mr. Ahmed is very anxious to proceed with his matters, however, the delay with disclosure will have already rendered him ineligible for possible Stream A resolution by his next, fifth, appearance."
March 16, 2012: Counsel appeared on behalf of Mr. Ahmed for the fifth time. The DVD recordings of his client were finally provided. Crown counsel noted that the Crown was "going to try to get some typed versions of officer's noted that are, otherwise, illegible according to [counsel]." The matter was adjourned to March 30. Defence counsel said that he would need to review disclosure and that he hoped to be in a position to conduct a Crown pre-trial by then. Following court, defence counsel sent a fourth request for disclosure. He once again requested typed notes of PC Szajkowski as well as the other items previously requested.
March 30, 2012: Counsel had a Crown pre-trial. No further disclosure was provided. Counsel appeared in court on behalf of Mr. Ahmed for the sixth time and a judicial pre-trial was set for April 17, the earliest available date to the court. Defence counsel advised that he could have conducted the pre-trial on April 2.
April 2, 2012: Counsel sent a fifth request for further disclosure, noting that he required "Bill C-2 disclosure", preferably before the judicial pre-trial.
April 17, 2012: A judicial pre-trial was conducted. Defence counsel was provided with all outstanding disclosure except the typed notes. The trial was set for January 28 and 29, 2013, the earliest date offered. Defence counsel advised that he was available for Mr. Ahmed's trial as early as May 14, 2012, and had available dates every month thereafter. The Crown noted that an interim date of November 16, 2012 had been set to "confirm one piece of outstanding disclosure. The notes of one of the officers are not legible."
November 26, 2012: The application to stay the proceedings for unreasonable delay was heard. The typed notes of the officer were provided.
C. The Analytical Framework
[5] The primary purpose of section 11(b) of the Charter is the protection of the individual rights of the accused. The rights which the section seeks to protect are threefold: 1) the right to security of the person; 2) the right to liberty; and 3) the right to a fair trial. A secondary societal interest also exists; society has in interest in seeing that individuals in the criminal justice system are treated fairly. Moreover, trials held promptly enjoy the confidence of the public. The public has an interest in having those who allegedly break the law dealt with quickly on the merits of their cases. The interests of the accused must also be balanced by the interests of society in law enforcement. As the seriousness of the offence increases so does the societal demand that an accused person be brought to trial. (See R. v. Morin, [1992] 1 S.C.R. 771 (S.C.C.) at paras.26-30)
[6] The analytical framework for a section 11(b) application was set out by the Supreme Court over 20 years ago in R. v. Morin, supra, and re-affirmed recently in R. v. Godin, 2009 SCC 26. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that section 11(b) seeks to protect. When assessing the reasons for the delay, the court must consider five factors; 1) the inherent time requirements of the case; 2) actions of the accused; 3) actions of the Crown; 4) limits on institutional resources; and 5) other reasons for the delay. (See also R. v. Tran, 2012 ONCA 18 at paras.20-24) As Cromwell J. cautioned in Godin, supra, at para.18, it is important "not to lose sight of the forest for the trees while engaging in this detailed analysis." I now turn to an application of the framework to the present case.
I. Length of the Delay
[7] There is a slight variance in the positions of counsel with respect to the total length of delay in this matter. The divergence in the calculations of counsel arises from their differing views on when the clock should begin to run. The defence assesses the delay from December 5, the date of arrest. The Crown takes the position that the delay begins from December 19, the date the information was laid.
[8] In light of comments in R. v. Morin, supra, at para.35 and R. v. Kalanji, [1989] S.C.J. No. 71 at para.16, I find that the relevant time frame for the purposes of a section 11(b) analysis flows from the date the information was sworn. (See also R. v. Lahiry, 2011 ONSC 6780 at para.134)
[9] In this case, the information was sworn on December 19, 2011 and the scheduled trial date is January 28, 2013. Thus, the overall delay in issue is 13 months and nine days.
[10] The Crown accepts, and I agree, that the length of delay is sufficient to warrant an examination of the reasons for the delay.
II. Waiver of Time Periods
[11] The Crown does not allege that Mr. Ahmed waived his rights pursuant to section 11(b) and I agree. As noted by Sopinka J. in R. v. Morin, supra, at para.67, a waiver must be clear and unequivocal and with full knowledge of the right one is waiving. At no point did Mr. Ahmed explicitly waive his rights and none of his actions support an inference of an intention to waive his rights.
III. Reasons for the Delay
(i) December 19, 2011 to January 13, 2012: Inherent Intake Requirements of the Case, 25 Days
[12] Both parties agree that the time frame from December 19, 2011 to January 13, 2012 should be viewed as part of the inherent intake requirements of the case. I agree. As such, this time period is neutral for the purposes of the section 11(b) analysis.
(ii) January 13, 2012 to February 3, 2012: Inherent Intake Requirements of the Case, 21 Days
[13] On January 13, Mr. Ahmed's matter was before the courts for the first time. While some disclosure was provided, a number of important items were not. In particular, the booking, breath room and release DVD's were not provided.
[14] Defence counsel argues that the visual disclosure is required to conduct meaningful Crown and judicial pre-trials, and that this disclosure should always be provided on the first appearance. The failure to provide this material, he says, means that this time period should be allocated to the Crown.
[15] The Crown does not dispute that the visual disclosure is essential for a meaningful pre-trial. He argues, however, it is not unreasonable to expect that some additional time beyond the first appearance might be required to provide this material. As such, he submits that the time frame from January 13 to February 3 should be viewed as part of the inherent time requirements of the case.
[16] I find that while it is preferable that the visual disclosure be provided on the first appearance, there is no bright line requirement that it must be, failing which, the time thereafter will be characterized as Crown delay. Each case must be assessed on its own facts. Here, the 25 days from the swearing of the information to the first appearance fell over the holiday season and included three statutory holidays. In the circumstances, it seems reasonable that the state would require some additional time to provide the disclosure. As a result, I find that this time frame should be viewed as part of the inherent time requirements of the case.
(iii) February 3, 2012 to March 16, 2012: Crown Delay, One Month and 13 Days
[17] The Crown and defence both suggest that the time from February 3 to March 16 should be viewed as Crown delay. I agree. There is no explanation for the failure to have the visual disclosure by the second, third or fourth appearances in this matter. Defence counsel made it clear, both in court and in three written requests, that he required this material for the purposes of a pre-trial. Yet he was not provided the visual disclosure until the fifth court appearance. This delay is both unexplained and unreasonable. As a result, the time frame between February 3, 2012 and March 16, 2012 should be attributed to Crown delay.
(iv) March 16, 2012 to March 30, 2012: Inherent Time Requirements, 14 Days
[18] Both counsel submit that the 14 days between March 16 and March 30 should be viewed as part of the inherent time requirements of the case. I agree. Defence counsel received the visual disclosure he had been requesting on March 16. He required time to review the material and have a Crown pre-trial. He requested an adjournment to March 30 to allow him to do so. In the circumstances, this time should be viewed as part of the inherent time requirements of the case.
(v) March 30, 2012 to April 17, 2012: Inherent Time Requirements, 18 Days
[19] On March 30, Mr. Ahmed's matter was adjourned to April 17 for a judicial pre-trial. Defence counsel was available for a judicial pre-trial on April 2. The Crown asserts that a judicial pre-trial was a necessary step in the proceedings and should be viewed as part of the inherent time requirements of the case. The defence counters that since he was available on April 2, only three days should be viewed as inherent and the remainder should be viewed as institutional delay.
[20] As noted by Code J. in R. v. Emanuel, 2012 ONSC 1132 at para.14, recent authorities have characterised the delay required to accommodate a judicial pre-trial as part of the inherent time requirements of the case, provided the court is available for a judicial pre-trial within a reasonable time. (See also R. v. Tran 2012 ONCA 18 at para.34, R. v. Lahiry, 2011 ONSC 6780 at para.116; Scott Latimer, "Defining JPT times for s.11(b) purposes, (2011) 84 C.R. (6th) 244.)
[21] The issue is thus whether the hearing is set within a reasonable time. I find that 18 days is a reasonable period of time to schedule a judicial pre-trial.[2] In reaching this conclusion, I bear in mind the comments of the Court of Appeal that "no case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases." (See R. v. Allen, [1996] O.J. No.3175 (Ont.C.A.) at para.27; See also, R. v. Tran, supra, at para.56) As a result, the 18 days required to schedule a judicial pre-trial should be viewed as part of the inherent time requirements of the case.
(vi) April 17, 2012 to January 29, 2013: Inherent Time Requirements, 27 Days, Institutional Delay, Eight Months and 14 Days
[22] On April 17, 2012, a trial date of January 28, 2013 was set. This was the earliest available date. Defence counsel advised that he was available to conduct the trial as of May 14, and that he had available trial dates every month thereafter.
[23] Applying the reasoning in R. v. Lahiry, supra and R. v. Tran, supra, the Crown submits that the time should be allocated as 27 days inherent time requirements and eight months and 14 days institutional delay. The defence, while acknowledging the above authorities, asserts that the particular facts of the case are such that the time should be viewed as a combination of Crown delay and institutional delay. Specifically, he points to the fact that the typed notes of the officer were not provided until November 26. Thus, he says, the matter was not really ready for trial until that time, so that the fact that he was not available until May 14 is irrelevant for the purposes of the section 11(b) analysis.
[24] I find that the fact that the notes were not provided until November does not mean that the reasoning in Lahiry and Tran is inapplicable. There are a number of reasons for this. First, Crown counsel offered to sit down with defence counsel to review the notes that he believed were illegible.[3] He did not take the Crown up on this offer. The Crown proposal was a reasonable attempt to meet the concerns of defence counsel while ensuring that the matter continued to progress. Second, despite the fact that defence counsel did not have typed notes, he was able to conduct a meaningful Crown and judicial pre-trial. I thus find the 27 days between the set date and defence counsel's first available date to be part of the inherent time requirements of the case. The time flowing thereafter is institutional delay.
(vii) Conclusion on the Reasons for the Delay
[25] The reasons for the delay can be summarized as follows: inherent time requirements, three months and 14 days (one month, and 15 days, inherent intake, December 19, 2011 to February 3, 2012; 14 days to allow counsel to review disclosure and have a Crown pre-trial, March 16, 2012 to March 30, 2012; 18 days to schedule a judicial pre-trial, March 30, 2012 to April 17, 2012; 27 days for counsel to prepare and clear his schedule, April 17, 2012 to May 14, 2012); institutional delay, eight months and 14 days (from when counsel was available for trial until the first available trial date, May 14, 2012 to January 28, 2013); Crown delay: one month, 13 days (the time from the second court appearance to the fifth court appearance where visual disclosure was finally provided, February 3, 2012 to March 16, 2012.)
[26] Thus, the total institutional and Crown delay in this matter amounts to nine months and 27 days. This is just within the Morin guideline for delay in the Ontario Court of Justice of eight to ten months. As the Court of Appeal reminded recently in R. v. Tran, supra, at para. 63, however, the guideline is just that, a guideline. Deviations of several months in either direction can be justified by the presence or absence of prejudice. (See also Morin, supra, at para.76)
[27] I now turn to an assessment of the prejudice in this case.
IV. Prejudice
[28] In this case, there is no suggestion of any prejudice to Mr. Ahmed's liberty interest. Rather, the defence submits that his right to make full answer and defence and his security of the person has been prejudiced by the delay. Defence counsel argues that prejudice can be inferred in this case, and that actual prejudice has been established as well.
[29] Code J. considered the issue of inferred prejudice in R. v. Lahiry, supra. He wrote at para. 126 that the "suggestion that prejudice need not be proved and can be presumed (or inferred) is only correct in the case of "a very long and unreasonable delay, that is, a delay that is "substantially longer than can be justified on any acceptable basis"". In that decision, Code J. dealt with four separate cases. In each case, the delay at issue was within the Morin guidelines. I read Code J.'s comments as holding that when the delay is within the guidelines, as in this case, that any inferred prejudice would be minimal at best and insufficient to support a deviation from the Morin guidelines. Thus, in the present case, whether specific prejudice has been established is a significant factor to be determined.
[30] With respect to specific prejudice, the defence argues that Mr. Ahmed's right to make full answer and defence has been prejudiced. Mr. Ahmed stated in his affidavit that his memory of events has faded. The Crown did not cross-examine him on this point. In light of his un-contradicted evidence on this point, I find that there is some prejudice. That said, aside from his assertion that his memory has faded and that he may not recall pertinent details, there is little else to explain how he will be prejudiced in his trial. This is not a situation where evidence has been destroyed or witnesses have become unavailable due to delay. In the circumstances, I find that any prejudice to his right to make full answer and defence is minimal.
[31] Counsel also points to the fact that the delay in disclosure meant that Mr. Ahmed became ineligible for Stream A resolution. The first time, however, that counsel raised the Stream A issue was in a letter dated March 2. There, he noted that the delay in disclosure "will have already rendered him ineligible for possible Stream A resolution by his next, fifth, appearance" of March 16. Prior to that, although counsel vigorously voiced concerns about the missing disclosure he failed to say anything about this matter. If an accused is suffering special prejudice from the delay in bringing a matter to trial, he or she has some obligation to bring that plight to the attention of the prosecuting authorities and the courts in a timely way. (See R. v. Bennett, [1991] O.J. No. 885 (Ont.C.A.) at para.110, aff'd, [1992] S.C.J. No. 58; see also R. v. Kovacs-Tatar, [2004] O.J. No.4756 (Ont.C.A.) at paras.37-39) In light of the fact that this issue was not raised until such a late date, I am not prepared to find any specific prejudice.
[32] The bulk of submissions regarding specific prejudice relate to Mr. Ahmed's security of the person. After he was charged, he became worried, ill-tempered and unfocused. He had resulting difficulties with his family and lost his job in July. Many of his issues, however, became apparent close in time to his being charged. I thus find that any prejudice flowed from the fact of being charged, as opposed to any delay in the matter. In the circumstances, I do not find any significant prejudice to Mr. Ahmed's security of the person arising from delay in this matter.
V. Balancing the Interests
[33] Drinking and driving is a serious offence that can have tragic effects and devastating consequences. (See R. v. Bernshaw, [1994] S.C.J. NO 87 at para. 19; See also R. v. Lahiry, supra, at para.89) In this case, there is a strong public interest in a trial on the merits.
[34] Considering that the length of delay in this matter is within the Morin guidelines, the reasons for the delay, the minimal prejudice suffered by Mr. Ahmed and balancing that against the societal interest in a trial on the merits, I find that the length of the delay in this case has been reasonable.
D. Conclusion
[35] Mr. Ahmed's right to a trial within a reasonable time pursuant to section 11(b) of the Charter has not been infringed. The application is dismissed.
Date: January 28, 2013
Signed: Justice Heather McArthur
Footnotes
[1] Counsel also requested the following items of disclosure: any I/CAD reports, 911 calls or radio calls in relation to his client; sample of standard alcohol solutions used; standard alcohol solution log books for the Intoxilyzer used; log books for calibration, maintenances, preventative maintenances, service records and certificates of calibration regarding the Intoxilyzer used; records of the initial calibration of the Intoxilyzer used (linearity tests) performed prior to its coming into service; Intoxilyzer downloaded data including 50 tests before and 50 tests after testing his client including any tests performed between his two tests; simulator and its thermometer maintenance, service and calibration records.
[2] In R. v. Lahiry, supra, at para.116, Code J. characterized a 19 day wait for a judicial pre-trial as "short" and found it to be part of the inherent time requirements of the case.
[3] Whether or not notes are legible is subjective. I have reviewed the notes and for the most part had no difficulty in reading them. That said, I have no doubt that counsel was acting in good faith when he indicated that they were illegible. Given that different people may have varying ability to read the notes, the offer of Crown counsel to sit down with counsel to review the notes was a reasonable approach to ensure that the matter continued to progress, with typed notes to be provided at a later date.