Court File and Parties

Court File No.: Halton Region, Central West Region 13-1351 & 13-1352

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Nuno Abreu & Michael Lupoi

Before: Justice Alan D. Cooper

Heard on: November 28, 2014

Reasons for Judgment released on: January 15, 2015

Counsel:

• Harutyun Apel for the Crown
• Carolyne G. Kerr for the accused Nuno Abreu
• Philip H. Patterson for the accused Michael Lupoi

Unreasonable Delay Application

Case History

[1] The Applicants, Nuno Abreu and Michael Lupoi, were separately charged with dangerous driving on the Queen Elizabeth Highway on April 14, 2013 in Burlington and elsewhere in the Province of Ontario. They were driving near each other on motorcycles and were alleged to have been weaving in and out of traffic and splitting lanes. They are friends.

[2] The informations were sworn on May 9, 2013, and the first court appearance was on June 3, 2013, over 7 weeks after the date of the alleged offence. The case went over to July 15, 2013, and August 19, 2013, so that Mr. Patterson, counsel for Mr. Abreu, could seek counsel for Mr. Lupoi. It was put over again to September 16, 2013, at which time a judicial pre-trial was held. It was adjourned to September 23, 2013, when the first trial dates of May 30, 2014, and June 2, 2014, were agreed to. The first trial date offered by the court was May 28, 2014, although defence counsel offered earlier dates. That is more than one year after the information was sworn. The Applicants were still separately charged, but the defence consented to a joint trial.

[3] On April 2, 2014, according to the Affidavit of Crown Legal Administrative Assistant Alicia Turner, the prosecution learned that James Osbourne, one of its witnesses, had to be in England with his ill mother on the trial dates in question. He would not be available until after August 31, 2014.

[4] The adjournment application was heard before me on April 11, 2014. The defence consented to the adjournment but did not waive their clients' Charter rights under section 11(b), concerning unreasonable delay. The defence was available on court-offered days of August 21 and 22, 2014, but the Crown was not available until November 28, and December 1, 2014, which dates were selected for trial.

[5] On November 28, 2014, an application was heard before me to stay the proceedings for unreasonable delay, pursuant to section 11(b) of the Charter of Rights and Freedoms. Argument was heard, but judgment reserved, and the trial was commenced. Ryan Howard, an off-duty Hamilton Police Service officer, and Ontario Provincial Police officer Michael Cunningham, were heard from. Before the matter was put over to January 15, 2015, for my Charter ruling, Ms. Kerr, counsel for Mr. Lupoi, stated on the court record that the defence had just learned that Crown witness James Osborne was not going to be called by the Crown, because the Crown advised the defence that it realized there was no need to call him, being of the view that other available evidence would suffice. This was not disputed by the Crown.

Factors to be Balanced

[6]

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.

The Evidence

1 – The Length of the Delay

[7] The total time from the date when the information was sworn on May 9, 2013 to the second trial date of November 28, 2014, is one year, 6 months and 20 days. The Supreme Court of Canada in R. v. Morin (1992), 12 C.R. (4th) 1, 71 C.C.C. (3d) 37, and in R. v. Sharma (1992), 12 C.R. (4th) 45, 71 C.C.C. (3d) 184, has enunciated that an appropriate guideline for institutional delay in the Provincial Courts is between 8 and 10 months. Therefore, the time period in this case warrants a review.

2 – Waiver of Time Periods

[8] The defence did not waive any time periods.

3 – The Reasons for the Delay

(a) Inherent time requirements of the case:

[9] This cannot be described as a complex case.

(b) Actions of the accused:

[10] The accused did not cause any delay. Rather than wait for a joint information to be laid, or proceeding with separate trials, the defence consented to a joint trial.

(c) Actions of the Crown:

[11] At the time of the adjournment application on April 11, 2014, the Crown was of the view that Mr. Osbourne was an important, if not essential, witness. This view obviously changed by November 28, 2014, when it advised the defence that he would not be called.

Attached to Ms. Kerr's Charter materials is a copy of the Crown synopsis. Mr. Osbourne is supposed to have made his observations of the driving actions of Mr. Abreu and Mr. Lupoi between 5:15 and 5:25pm. Mr. Ryan Howard made his at approximately 5:23pm.

Having heard Mr. Howard testify, his evidence was very detailed and precise as to the Applicants' manner of driving. The evidence of Mr. Osbourne, as revealed in the synopsis, may have supplemented that of Mr. Howard, but it was not essential. In addition to Mr. Howard, the Crown listed a Ministry of Transportation employee Mr. Ritchie, and Ontario Provincial Police officers Cunningham and Josey, as Crown witnesses.

[12] When the defence consented to the Crown application on April 11, 2014, it did not request that the May 30, 2014 trial begin with witnesses other than Mr. Osbourne, nor did the Crown offer to do so, although it could have.

(d) Limits on institutional resources:

[13] Although the Region of Halton is a smaller jurisdiction with a lighter case-load than Peel Region, where many of the unreasonable delay cases have emanated, it is growing very rapidly because of the availability of raw land for new homes. It now has two court locations in Milton, and Burlington, after the Oakville courts were closed at the end of November, 2009. Not having one central location makes court administration more cumbersome and inefficient. It is difficult to transfer a case from a busy court list to an available court in another location and, often, defendants, witnesses, and counsel get confused and go to the wrong court. In other words, without an increase in court resources and personnel, more and more cases will likely be the subject of unreasonable delay applications. The court lists are now becoming clogged due to a growing population and the scarcity of trial time. On December 26, 2012, Milton was described as Canada's fastest growing community. [Globe and Mail – Joe Friesen – "Fast-rising Milton's Battle of the Bulge"]. Halton is becoming one of the lost children of the Ontario judicial system. For some reason, its obvious needs have been overlooked. Recently, new court houses have been built in Kitchener and Oshawa. In our Region we have had new police stations constructed in Burlington and Oakville, and a new hospital in Oakville. The court house in Burlington is in an aging strip mall-like location and is not at all what one would think of as a traditional court house. The one in Milton is desperately in need of increased space and improvements. The Ontario Court of Justice in Halton deals not only with criminal issues but a huge family law caseload as well. There has been no increase in the number of judges on our court since my appointment in 2004.

(e) Other reasons for delay:

[14] There are no other reasons for delay.

4 – Prejudice to the Accused:

[15] Each Applicant filed an affidavit concerning prejudice suffered and I am satisfied that each has suffered actual prejudice from stress and anxiety due to the delay in getting to trial. There is also inferred prejudice. Both are business operators and may have paid increased legal fees as a result of the delay, if counsel are not retained by legal aid.

Societal Interest:

[16] In an application for unreasonable delay, the court must also consider the public interest in having trials proceed on their merits, especially on serious charges: R. v. Kovacs-Tatar, [2004] O.J. 4756 (C.A.).

Onus:

[17] The onus is on the defence to establish a breach of section 11(b) of the Charter on a balance of probabilities.

Defence Position

[18] The defence position is that the delay has been caused by the Crown and the court system and this has resulted in prejudice to both Applicants.

Crown Position

[19] The Crown contends that the Crown or institutional delay is not sufficient to justify a stay of proceedings.

Analysis

[20] The first trial date of May 28, 2014 was 12 months and 22 days after the information was laid, and was the first date available to the court. The second trial date of November 28, 2014 was 7 months and 18 days after the adjournment application hearing on April 11, 2014. Even assuming the first trial did not offend the undue delay criteria, it is clear that the adjournment and the lengthy wait for the second trial were predicated upon the requirement that Mr. Osbourne was an important, if not necessary, witness whose evidence needed to be heard. On November 28, the Crown decided not to call him as a witness, and apparently does not intend to call him, according to what the defence was told by the Crown on November 28.

[21] It is my opinion that the first adjournment was not necessary, as is evident from the Crown synopsis. In my view, the 7 month and 18 days is to be attributed to the prosecution. I should say that I do not know how long Mr. Apel has been with this case, and whether he made any decisions concerning Mr. Osborne before the second trial date.

[22] The societal interest in this matter is not insignificant, and the alleged driving was very dangerous. However, this interest is outweighed by the serious and unnecessary delay in this matter.

Conclusion

[23] Because the Morin guidelines have been exceeded, and because of the actual and inferred prejudice suffered by both Applicants as a result of the delay, I find that the defence has met the onus upon it to establish an unreasonable delay, contrary to section 11(b) of the Charter, and the charges are stayed.

Released: January 15, 2015

Signed: Justice Alan D. Cooper