Ontario Court of Justice

Date: 2015-06-22

Court File No.: Central East - Newmarket 4911-998-13-08550-00

Between:

HER MAJESTY THE QUEEN

— AND —

SHAUN CAMPBELL

Before: Justice David S. Rose

Heard on: May 25, 2015

Reasons for Judgment released on: June 22, 2015

Counsel:

• Kirk Dickson, for the Crown
• Daniel Michael, for the accused Shaun Campbell

ROSE J.:

Application

[1] Mr. Campbell applies for a stay of proceedings on the basis that his right to a trial within a reasonable time under s. 11(b) of the Charter has been infringed.

Procedural History

[2] On November 20, 2013 Mr. Campbell was arrested on the charge of Possession of Cocaine for the Purpose of Trafficking. He was held for a show cause hearing the next day, when he appeared in Court for the first time. He was released to bail on November 21, 2013, which is also the day that the Court Information was sworn to.

[3] Mr. Campbell appeared out of custody on December 12, 2013 and was given disclosure. At that point he did not have a lawyer. On his next court date, January 14, 2014 he was in the process of retaining Mr. Michael, and the case was put over to February 4 to receive outstanding disclosure as well as to conduct a Crown Pre-Trial. On February 4, 2014 Mr. Michael had a Designation of Counsel filed, and had a Crown Pre-Trial scheduled for two days away. The case went over to February 20.

[4] On February 20, 2014 Mr. Campbell appeared by designation, and a judicial pre-trial was scheduled for 18 March 2014. Chaffe J. did indeed conduct a Judicial Pre-Trial that day, and the case was put over to April 8, 2014 so that Mr. Michael could get written instructions from Mr. Campbell. Justice Chaffe approved a trial time estimate on March 18, from which I infer that the Court was prepared to set a trial date on that day.

[5] On April 8, 2014 Mr. Campbell appeared pursuant to the Designation, and a two day trial was set for February 24, and 25, 2015. Mr. Campbell indicated through Mr. Michael's articling student that those dates would be for trial. The formal election was made on April 22, 2014.

[6] On February 24, 2015, the first time up for trial Mr. Michael brought a disclosure motion before Misener J. The subject of the disclosure motion was the confirmatory materials supporting the police decision to arrest Mr. Campbell back on November 20, 2013. Those materials included notes from other criminal cases going back to March 2013. Those notes spoke to observations from that time period which purportedly furnished the police with grounds to arrest Mr. Campbell on November 20. As Mr. Michael put it on that day, "…the case essentially hinges entirely on success of the s. 9 argument and we'll be assessing the reasonable probably(sic) grounds and the currency of that information that officer might have on November 20, 2013." Misener J. ruled that "… these are reasonable requests that will ensure that he can make full answer and defence without unpacking all kinds of really fishing expeditions because neither of these seem like that to me." Not surprisingly, the trial did not proceed that day, and the case went over to May 25, 2015 for trial. Understandably, Misener J. asked that the case be made a priority.

[7] A transcript filed on this Application from March 9, 2015 shows that the outstanding disclosure was provided that morning.

[8] On May 25, 2015 Mr. Campbell elected to be tried before me and pleaded not guilty to the charge. The 11(b) argument was completed that day and judgment reserved until June 22, 2015. In the event that this Application is rejected, July 22 and 23 are reserved for the trial proper.

[9] I heard viva voce evidence from Mr. Campbell on the 11(b) Application which supplemented his Affidavit filed on the Motion. I will deal with that below.

Legal Test

[10] The legal framework for analysing an argument brought under s. 11(b) of the Charter includes the following 4 limbs:

1. The length of the delay;
2. Waiver of time periods;
3. 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.

See R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.)

[11] In addition to the axiomatic statement from Morin it is also clear that the focus of an inquiry under s. 11(b) should be on the reasonableness of the overall delay, and not one particular period, see R. v. Conway, [1989] 1 S.C.R. 1659. I also take as a given that the complexity of a given case is made on an objective basis. The greater the complexity of a given case, the longer the inherent time requirements see R. v. Schertzer, 2009 ONCA 742. Lastly, when assessing reasons for delay, it is not a matter of assessing blame, but rather steps taken which have the effect of adding to the delay see Morin at paras. 39 - 41.

Length of Delay

[12] The overall time period from the time that the information was laid until the time that trial will finish is from November 21, 2013 until July 23, 2015, a time period of 20 months. This time period is sufficiently long to warrant an inquiry on this threshold test.

Waiver of Time Periods

[13] I can find no waiver of time periods, and none is alleged by either party.

Reasons for Delay

[14] The period from the time of Mr. Campbell's arrest on November 20, 2013 until February 20, 2014 (or 3 months) is neutral time occupied with intake matters such as retaining counsel and obtaining disclosure. Furthermore, the period from February 20, 2014 until March 18, 2014 when a Judicial pre-trial conference was conducted is also neutral time. The Applicant argues that this should be considered Institutional time, but I reject this suggestion. As Simmons J.A. said in R. v. Tran et al. 2012 ONCA 18 at par. 34:

"…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".

And Newmarket is a very busy judicial centre. Accordingly, the time between February 20, 2014 and March 18, 2014 (1 month) is in my view neutral time.

[15] On March 18, 2014 the Court was ready to set a 2 day trial, but Mr. Michael needed some time to get instructions from Mr. Campbell, and the case went over to April 8 (0.5 months) to allow that. While perfectly understandable, this is nonetheless defence delay.

[16] On April 8, 2014 a two day trial was set for February 24, and 25 of 2015. The trial date was 10.5 months away.

[17] In this case there was a Charter Motion which formed, as I understand it, an essential component of the defence. The Charter Motion is an allegation that Mr. Campbell's rights under ss. 8 and 9 were violated because the police had no reasonable and probable grounds to affect his arrest on November 20, 2013. As such, Mr. Campbell will argue, evidence seized in this case should be excluded under s. 24(2) of the Charter. That argument has an additional layer to it, namely that the police improperly relied on historical information about the person Mr. Campbell met with on November 20, 2013. The police officer who arrested Mr. Campbell was relying on information which stemmed from a different investigation by another officer back in March of 2013 in order to form his grounds for arrest on November 20, 2013. As Mr. Michael put on February 24, 2015 before my sister Misener J. "…there has to be an objective assessment of the totality of what those facts were on that date. The officers representation may not be an accurate representation…" While that is a valid, orthodox basis to challenge an arrest and a search incidental to arrest, it is not a straightforward Charter Application of the kind that we commonly see in this Court on simple cases. It involves cross-examining a police officer, or more than one, on events which occurred many months prior to an arrest. Once developed, the hearing of the Application may well be straightforward, but this is not a Charter Application which I would consider to be of the kind that even experienced Counsel such as Mr. Michael can file within a few days after setting a trial date.

[18] I pause to observe that the disclosure materials which would form the basis of this Charter Application were discussed early in the proceedings. Mr. Dickson, with his usual candour, acknowledged to me that disclosure of the materials from March 2013 was discussed at the Judicial Pre-Trial on March 18, 2014, and that the Crown bears some responsibility to failure to provide timely disclosure.

[19] Given the above, I therefore find that the period between April 8, 2014 and February 24, 2015 (or 10.5 months) is institutional delay subject to the following. There is established authority for the proposition that the period of institutional delay from when a trial date is set until the trial date should have some realistic carve-out for the period where the parties must get ready for trial see R. v. Lahiry 2011 CarswellOnt 12516 (Code J.). In this case that meant a Charter Application which, because of lack of disclosure, could not be perfected. The disclosure motion filed was therefore much in the way of a place holder, allowing Mr. Michael to appear before Misener J. and validly claim that disclosure was not complete under the circumstances. I subtract 2 weeks (or 0.5 months) of the 10.5 months of institutional delay to the period which Code J. described in R. v. Lahiry as the period which must be deducted from this period during which counsel is not actually ready for trial. The actual institutional delay for this period is therefore 10 months. The two week (0.5 months) period required for parties to get ready for trial I therefore find to be inherent delay.

[20] The period from February 24, 2015 until May 25, 2015 when the case did not start because disclosure was still outstanding is in my view Crown delay. Again, disclosure was outstanding for some time by the time the case came before Misener J. This period amounts to 3 months, and I find that Mr. Michael was reasonably available in this period.

[21] On May 25, 2015 the case came before me but did not start with evidence because of this Motion. The materials in support of it were filed late, namely on May 4, 2015. From my review of the Application materials the transcripts in support of the 11(b) motion were ordered on March 26, 2015, which was about one month after Misener J. ordered the Crown to provide further disclosure and set a new trial date. The Rules of the Ontario Court of Justice require 11(b) Motions to be filed 30 days in advance of the Motion date, and heard at least 60 days prior to the trial, see Ontario Court Rules Rule 2.4. I recognize that the 90 day period would have required Mr. Michael to file Mr. Campbell's 11(b) Motion on the day that Misener J. adjourned the proceedings on February 24, 2015, and that transcripts require at least two weeks to prepare, so it was unrealistic to expect that Mr. Michael could have met the guidelines in Rule 2.4. Nonetheless, the 11(b) Motion was a Defence Motion which meant that the trial could not proceed on May 25, 2015. As the Court of Appeal ruled in Ontario (Ministry of Labour) v. Pioneer Construction Inc., ordinarily an 11(b) motion should be argued at the outset of a trial. The resulting delay from May 25, 2015 to July 22 & 23, 2015 (which are the provisional new trial dates) is therefore defence delay, which is to say not blameworthy, but a defence procedure which resulted in delay. This latter period amounts to just less than 2 months.

[22] Summarizing the time periods above I find the following periods:

• Intake and therefore neutral delay: 4 months.
• Defence Delay: 3 months.
• Institutional: 10 months.
• Crown Delay: 3 months.

[23] The total amount of Crown and Institutional Delay is therefore 13 months.

Prejudice

[24] Mr. Campbell had a curfew from 9pm – 6am imposed on him at his show cause hearing on November 21, 2013. The bail requires him to live with his mother in Scarborough, although his children live with his wife in Markham. I also note that he is allowed outside his residence during that time while in the company of one of his three sureties. Reviewing the transcript of his show cause hearing filed at this Application it appears that Mr. Campbell's release plan included a substantial education component. Counsel advised the Court at the time of the show cause that:

"I can advise Your Worship that the mother of his children, along with his brother, have made it their prime focus to ensure that Mr. Campbell enrolls in a post-secondary education. Specifically, they have begun canvasing the possibility of enrolling in Seneca College in the culinary program."

[25] Both the mother of his children and his brother are sureties for Mr. Campbell.

[26] In his evidence before me he testified that he never went to school, although it was his intention. He testified that he worked at the time of his arrest. One job was as a bouncer at nightclubs working for a firm called Toonyce. That job had him on call, working once or twice a week, wherever in the GTA they put him. His second job was a general labourer for Pave Tar construction which hired him as a general labourer doing demolition and restoration work. He told me that his hours at Pave Tar were varied, and could be in the day or at night. His evidence to me was that he had to give up both jobs because of the curfew. He testified that he applied "all over" but couldn't accept employment because of the curfew. I struggle with this. It seems that Mr. Campbell never went to school as was planned, and was completely unable to find any employment whatsoever in the 18 months since he was charged.

[27] Mr. Campbell's evidence was that the bail conditions resulted in a change of his relationship with his estranged wife and young children. He testified that when he was arrested he wasn't getting along with his wife. He was asked why he couldn't care for his children when he was allowed out of his house as early as 6am. His answer seemed to be that he was dependant on his wife's car to come up to visit his children because he had not taken public transportation. Frankly, it is unclear to me why a 9pm – 6am curfew would have limited his ability to see his children each morning if Mr. Campbell was not working or going to school. Taking public transportation would have been an inconvenience to be sure, but I do not understand why that inconvenience would have been so large as to prevent Mr. Campbell from seeing his children each day when he apparently had nothing else to do. I cast no aspersions on Mr. Campbell in this regard, but I simply cannot find prejudice here.

[28] Mr. Campbell did testify to having headaches. He takes Tylenol 2 over the counter. In his affidavit he describes thinking about his trial every night, causing sleeplessness. The overall period of delay in this case is such that a certain amount of anxiety is understandable and I am prepared to find that the anxiety resulting from the delay has increased because of the delay. I find that there is some prejudice from this. It is both actual arising from the headaches and sleeplessness and inferred from the 20 month overall delay. I would characterize the prejudice as very minimal.

[29] Once the 4 factors from Morin are considered, the public interest in proceeding with the case must be balanced. This factor requires more significant analysis when the delay periods are not lengthy and the evidence of prejudice is attenuated See R. v. Lahiry 2011 ONSC 6780 at paras 86 – 89. In this case the public interest in favour of a trial on the merits is quite high. I say this because it is a drug charge involving allegations of trafficking a "hard" drug, namely cocaine. I also note from the transcripts filed that a mandatory minimum term of incarceration is at play, from which I simply take that this is a potentially serious case. This factor weighs heavily in favour of a trial on the merits.

Conclusions

[30] The period of Crown and institutional delay in this case is 13 months, which is above the 8 – 10 month guideline set by the Supreme Court in Morin. But this begs the question, is that 8 – 10 month guideline appropriate for a 2 day drug case in which the principal defence is a Charter Application challenging the grounds for arrest where that challenge engages different investigations from months before the arrest? In other words, is this a simple straightforward case?

[31] The relative complexity of a case may serve to excuse longer periods of delay. Again, I look to Morin:

36 All offences have certain inherent time requirements which inevitably lead to delay. Just as the fire truck must get to the fire, so must a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which must be evaluated. Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges.

[32] In the case at Bar the issues to be litigated required two days for trial. This alone takes it outside of the realm of a simple one day impaired driving charge. Given the Charter issues which drive this case, as described above, I would find that along the continuum of simple on one hand, to complex on the other, this one is above being simple. The Morin 8 – 10 month guideline is, in my view not entirely applicable for these reasons. Put another way, is 13 months of Crown and Institutional delay so much as to cause an unreasonable delay in the circumstances? I have come to the conclusion that the answer is no. Balancing the complexity of the case, the delay as I have attributed it, the minimal amount of prejudice, and the balancing of interests, Mr. Campbell has not made out a s. 11(b) violation.

[33] The Application is denied for these reasons.

[34] This Application was focussed, well prepared and well argued on both sides and I thank Counsel for their efforts in this regard.

Released: June 22, 2015

Signed: "Justice David S. Rose"