Ruling on 11(b) Charter Motion
Court File No.: Central East – Newmarket – 13-03973
Date: February 23, 2016
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Carlos Sintra
Before: Justice P.N. Bourque
Counsel:
- D. Lerner, for the Crown
- J. Dos Santos, for the accused Carlos Sintra
Overview
[1] The defendant was charged with four counts arising out of the events of May 7, 2013. The charges are assault, assault cause bodily harm, impaired driving, and driving with excess alcohol, pursuant to the Criminal Code.
[2] The trial was set to begin on March 9, 2015. At the outset of the trial, the defendant brought an 11(b) Charter motion, which I denied, and the trial proceeded on that day.
[3] The final submissions in this case are being made today, January 18, 2016. The defendant has renewed his 11(b) motion, and the following is my ruling on this new 11(b) application.
[4] I have attached and marked as Exhibit "A" to this ruling, my previous ruling. I rely upon that ruling with regard to my assessment of the relevant time periods up to March 9, 2015, my statement of the law and my ultimate conclusion that there was at that time, no 11(b) breach.
Relevant Time Periods and Actions
[5] The relevant further time periods and actions of the parties which impact upon the issue of delay are as listed below:
March 9, 2015 (2nd trial date) 11(b) application took up half of the scheduled trial time – trial commences – Adjourned to March 10, 2015 to continue trial.
March 10, 2015 (3rd trial date) Trial continues for full day.
March 11, 2015 (4th trial date) Trial continues for part of the day – Crown not able to call final witness due to scheduling – Adjourned to March 12, 2015.
March 12, 2015 (5th trial date) Trial evidence completed but no time left for submissions – Adjourned to July 3, 2015 to complete submissions.
July 3, 2015 (6th trial date) Defence counsel unavailable due to an illness in his family. Adjourned to set new date, new date set for September 17, 2015.
September 17, 2015 (7th trial date) Parties attend to make submissions. Interpreter not ordered but one attended at noon and matter could have proceeded. Matter did not proceed as Crown determined that another continuation had priority and it proceeded. Adjourned to January 18, 2016.
January 18, 2016 (8th trial date) Submissions completed and trial complete.
Summary of Delays
Total time from charge to March 12, 2015: 22 months
Total time from charge to completion of trial on January 18, 2016: 32 months
[6] It is obvious that a delay of trial of some 32 months requires an inquiry into the reasons for the delay. As I have set out earlier, it is my view that up to March 12, 2015 the period of delay is between 11 and 12 months. At that point, I did not find that the delay was such as to trigger a violation of the defendant's rights under 11(b). I must determine therefore the reasons for the subsequent delays and assign (for the purpose of the 11(b) analysis) whether such reasons are institutional or Crown delay, and if there is further delay, review the issue of prejudice and decide whether the further delay amounts to a violation of the defendant's rights under 11(b).
Period of Delay – March 12, 2015 to July 3, 2015
[7] The case was not finished on March 12, 2015 after the better part of 4 days testimony. The first part of the first day was taken up with an 11(b) application. The second part of the third day was wasted because the last Crown witness could not attend until the fourth day. On balance, I cannot fault either party and I cannot say that their estimate of trial time led to any delay. The need for an adjournment was a matter inherent to this case. The issue is not the delay but the length of the delay. In a case where there are 11(b) issues already flagged and where the continuation is for argument only, I would have thought that the system would have dictated an earlier return. I think that the outer limit of further delay in this matter would have been some three months. I therefore attribute one month of this delay to institutional issues.
Period of Delay from July 3, 2015 to September 17, 2015
[8] This delay was caused by an illness in the family of the defence counsel. He agrees that this delay falls to the feet of the defence and states that the return date of September 17, 2015 was reasonable and none of this period of delay is either institutional or Crown generated.
Period of Delay from September 17, 2015 to January 18, 2016
[9] The adjournment on September 17, 2015 could be attributed to several factors. While some of the issue may fall to the defence because he did not remind the court of the need for the interpreter, there was an interpreter by noon, and in any event, the fact that there was an interpreter ordered for all of the other days of the trial should have been some indication that an interpreter was still required.
[10] In any event, that was not, in my opinion, the penultimate reason for the delay. The reason was that this Judge had three matters continuing upon the same day. It would be clear to anyone, that only one of these matters could have comfortably proceeded on that day. Three parties came to court expecting to continue their trial. They were all "tied for first". Unfortunately, it was left to the Crown to choose based upon their priorities. This matter had to settle for a lower level of priority. This is the fault of the "system". It should not have happened.
[11] Unfortunately, this is what happens when, in a busy jurisdiction, cases do not get completed in their allotted time and the presiding justices build up a backlog of continuations. This Judge (at that time) had approximately 21 trials started, but not completed. I am not sure that will set any records, but from an institutional point of view, that makes the juggling of Judicial schedules more of art than of science. Put quite simply, in this jurisdiction there are not enough Judges to handle the ever expanding case load of an ever expanding population. (York Region has a population of just under 1.2 million souls, and has 12 full-time Ontario Court Judges to deal with the criminal cases).
[12] The cause of the adjournment is simply the continuing lack of Judicial resources which is part of the institutional resources.
[13] Even so, I am not prepared to assign all of the delay to lack of such resources and as the system should have "scrambled" to bring this matter back as soon as possible, I believe that one month should have been sufficient. In this case, it took a further four months. I find that three of those months should be attributable to institutional delay.
Prejudice
[14] The defence does not assert any further claims for prejudice other than the increased costs to the defendant for these extra appearances and the increased stress to the defendant. The defence admits that since the evidence was finished on March 12, 2015 there is not the issues of the faulty memory of any witness. In that sense trial fairness is not directly impacted. However the defence insists that a total period of delay which is now between 14 and 16 months would inevitably lead to a breach of 11(b) rights.
Conclusion
[15] I have found that the delay in this trial (although more complex than a standard drink and drive case) is between 15 and 16 months. I have found that most of this delay is as a result of institutional issues. I have considered that drinking and driving cases can be serious and this matter also involved the unseemly situation of adult men resorting to their fists in a public place. In that sense they are serious matters and the public would deserve a determination of these issues on the merits. I am comforted by the fact that since all the evidence is complete, I will be dealing with the merits of this case. Even so, I can't see how anyone could believe that a delay of 15 to 16 months is acceptable under any yardstick. At that level of delay, public interest would demand a stay of the charges.
[16] I find that the defendant has satisfied me on a balance of probabilities that his 11(b) rights have been infringed and I would stay all of the charges against him, if it were necessary (see trial judgment).
Signed: "Justice P.N. Bourque"
Released: February 23, 2016
APPENDIX "A"
Ruling On 11(B) Charter Motion
Court File No.: Central East – Newmarket – 13-03973
Date: February 23, 2016
Ontario Court of Justice
Between:
Her Majesty the Queen
Respondent
— AND —
Carlos Sintra
Applicant
Before: Justice P.N. Bourque
Counsel:
- D. Lerner, for the Crown
- J. Dos Santos, for the accused, Carlos Sintra
Overview
[1] The defendant (the "Applicant") is charged that on May 7, 2013, he committed the offences of impaired driving, driving with excess alcohol, and assault and assault cause bodily harm.
Trial within a Reasonable Time – 11(b) Charter of Rights and Freedoms
[2] The Applicant makes an application pursuant to Section 11(b) of the Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time", has been infringed. He further asks that if I find that such an infringement has occurred, then pursuant to the provisions of Section 24(1) of the Charter that the only remedy which is "just and appropriate under the circumstances" is a Judicial Stay of the charges against him.
Onus
[3] The onus to satisfy me that there has been a charter breach, as alleged is upon the Applicant on a "balance of probabilities".
Relevant Time Periods and Actions
[4] The relevant time periods and actions by the parties which impact upon the issue of delay are as follows:
| Date | Event |
|---|---|
| May 7, 2013 | Date of offence and arrest |
| May 29, 2013 | Date of charge |
| June 11, 2013 | 1st court appearance – Agent for counsel attends, initial disclosure provided and matter adjourned to July 12, 2013 |
| July 12, 2013 | 2nd court appearance – Agent for counsel attends and indicates that Crown pre-trial set for July 16, 2013 and matter adjourned to August 2, 2013 and further disclosure provided |
| August 2, 2013 | 3rd court appearance – Crown pre-trial complete, Judicial pre-trial requested by defendant (trial will exceed a day) and matter adjourned to September 17, 2013 for A Judicial Pre-Trial. (Court had earlier dates) |
| September 17, 2013 | 4th court appearance – Judicial Pre-Trial held - Trail dates set for April 14, 15, 16 and 28, 2014. Matter also adjourned to December 5, 2013 for a continuing Judicial Pre-trial |
| December 5, 2013 | 5th court appearance – Judicial Pre-Trial adjourned to December 19, 2013 |
| December 19, 2013 | 6th court appearance – Judicial Pre-Trial completed, Crown still needs to serve and file a toxicology report, matter adjourned to February 20, 2014, to have confirmation of the receipt of the toxicology report |
| February 20, 2014 | 7th court appearance – Adjourned to February 21, 2014 |
| February 21, 2014 | 8th court appearance – Toxicology report still not ready but matter adjourned over to the trial dates |
| April 14, 2014 | 1st trial date – Attend for trial Crown and Defence ready to proceed. 1st day of four days could not be done because of lack of a court and in any event the interpreter has not been ordered. Parties go to trial coordinator and dates of March 9, 10, 11, and 12 2015 set for the continuation of this matter |
Summary of Time Periods
Total time from charge to trial completion: May 7, 2013 to March 12, 2015 – 22 months
Total intake time: May 7, 2013 to September 17, 2013 – 4 months
Total time from first set date to trial completion: September 17, 2013 to March 12, 2015 – 18 months
Legal Framework
[5] Section 11(b) explicitly focusses upon the individual interest of liberty and security of the person. Nonetheless there is, at least by inference, a community or societal interest implicit in s. 11(b). The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures. When a trial takes place without unreasonable delay, with all witnesses available and memory is fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated.
[6] As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin at p. 13. This applies not as a separate analysis of the 11(b) issue but is applied throughout the analysis.
[7] To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:
- the length of the delay;
- waiver of time periods;
- 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
- prejudice to the accused.
[8] In R. v. Godin, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:
[18] . . . It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach...is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."
[9] The Court went on to restate "...that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice." and the court went on to say at paras. 37-38:
[37] It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.
[38] Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.
Analysis
Length of the Delay
[10] In this case, the total length of the delay from charge until attendance for the completion of the trial is 22 months. In my opinion, this length of time requires an inquiry into the reasonableness of the delay.
Waiver of Some or All of the Time Periods
[11] Courts have recognized that a defendant may waive 11(b) rights in their entirety or for specific periods during the course of the proceedings. Such a waiver must however be unequivocal and made by an informed Defendant.
[12] In this proceeding, there has been no express waiver of the all or part of the time periods.
Reasons for the Delay
Inherent Time Requirements of the Case
[13] This is a matter for which the Crown is proceeding by summary conviction. The police investigation was complete by the time of the laying of the charge. While cases of impaired driving and simple assaults are cases which can be routine, this case was not quite that simple as it involved a blood demand and most of the evidence would come from civilian witnesses. Both Crown and Defence indicated on the record on two different setting of trial dates that it would take four days. This in my opinion increases the inherent nature of the length of time it would take to try this case.
[14] While the 8 to 10 month period of delay as suggested by Morin is still applicable, where it may be that the delay exceeds that period I can and should take the increased inherent delay as part of my deliberations.
[15] The application of a guideline will be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. In this case, other that the delay itself and the attendances at an earlier trial date, there is no specific prejudice alleged.
Judicial Pre-Trials
[16] I believe that the holding of a Judicial pre-trial within a reasonable period of time is an inherent requirement of most cases. In our case both the defence and Crown have included the first pre-trial within the intake period and this is appropriate.
[17] In my opinion the subsequent pre-trials do not have any effect on my analysis as the first trial date had already been set. It caused no delay. I find that it also did not affect the ability of the parties to be ready for trial. I believe that the holding of subsequent discussions by pre-trial or other means is something to be encouraged as a means of resolving matters before trial. I would not want it to enter into the 11(b) analysis as it may discourage these discussions and put parties in the position of perhaps disclosing pre-trial discussions to the trial judge.
Two Periods of Analysis
September 17, 2013 to April 28, 2014
[18] This is a period of 7 months. As per the decisions in R. v. Lahiry and R. v. Tran, I cannot assume that the parties (mainly the defence) would have been ready for trial at the date the trial date was set. Nothing was put on the record in court about availability of counsel for earlier dates. I note there is an application under the Charter for relief under section 10(b). That would have required a month to serve (30 day notice period under the rules and some time for response from the crown). This is a 4 day trial. As there is nothing on the record, I will have to assign some time. I assign 2 months to this period and thus the period of institutional delay is 5 months.
April 28, 2014 to March 12, 2015
[19] This is a period of 10 months. This reason for this adjournment was twofold, that is there was no judge available to start on the first day (April 14, 2014) and the most important reason was the lack of a Portuguese interpreter for the defendant to comply with his constitutional right to understand the proceedings he was facing. The wish for an interpreter was not put on the record at the court set date appearance of September 17, 2013. The information was therefore not endorsed that an interpreter was requested and the system therefore did not respond to the request.
[20] The defendant points out that in Newmarket a "green sheet" is filed when a trial date is set and that green sheet is prepared by the trial coordinator and sets out certain facts which are pertinent to the judging of the amount of time required for the trial. As part of that sheet there is the following:
- Date set with no Crown or Crown Brief
- Portuguese interpreter requested
[21] The defendant states that as this was filed with the information at the time the trial date was set then he felt nothing further was required from the defence to bring to the attention of the court that an interpreter is required. I have no doubt that this was counsel's honest belief. However, I am left in a situation where I have to attribute delay in a fashion that has an impact on the 11(b) analysis. There is no doubt in my mind that if the request for the interpreter was made on the record and the system failed to provide one, then that would fall upon the shoulders of the system, and the following delay would be on the system and count toward the delay for 11(b) purposes.
[22] In our case there is only the notation on the green sheet, which is primarily a device for the trial coordinator and the court to assign the appropriate trial time. It is some evidence that the defendant wanted to have an interpreter. Is it enough to place the entire burden of the delay upon the system. I do not think it does. It is in my opinion one of these things that just happens in the trial process. While I do not say that the defendant was negligent, I also cannot attribute any negligence on the part of the system. The system is set up to respond to an interpreter request made on the record. While it would be better for it to respond to any written document before the court, I cannot say that it is unreasonable for the system to only respond when a request for an interpreter is made on the record.
[23] Having found that I am of the opinion that a 10 month delay was in any event too long and the system does bear some responsibility to have the matter brought on more quickly. The Crown suggests that a period of 4 months was reasonable and thus a period of a further 6 months should be added to the institutional delay.
Prejudice to the Accused
[24] There is no evidence proffered by the defence to indicate that there was any further prejudice to the defendant.
[25] The matter has been set for trial and the defendant has appeared for his trial on other occasions. Courts have recognized that more than one attendance for trial can result in some augmented prejudice.
[26] I have already cited the excerpts from R. v. Godin, which restates the prejudice resulting naturally from a situation where the guidelines in R. v. Morin are exceeded by a significant amount.
Conclusion
[27] I find that the total delay is approximately 22 months.
[28] I find that the intake time is approximately 4 months.
[29] I find that the "Lahiry" period to be ready for trial after setting the first trial date is 2 months.
[30] I find that the institutional delay for the period up to the first trial date is 5 months.
[31] I find that the institutional delay for the period between the first trial date and the present trial date is approximately 6 months.
[32] I find that for the purpose of 11(b), I must consider the period of delay of between 11 and 12 months.
[33] I find that there is minimal prejudice.
[34] I find that the inherent requirements for a case of 4 days is at the upper end of the scale.
[35] I find that balancing society's interest in have these serious matters adjudicated on the merits and the prejudice to the defendant weigh in having this matter proceed to trial. I find that with all these factors in mind, the defendant has not succeeded in convincing me on a balance of probabilities that his rights to be tried within a reasonable time has been infringed.
[36] I dismiss this application.
Signed: "Justice P.N. Bourque"
Released: February 23, 2016