Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Zachary Edwards-Cyrus

Before: Justice John M. Ritchie

Heard on: June 20, 2016

Reasons for Judgment released on: June 23, 2016

Counsel:

• Ms. C. Otter — counsel for the Crown
• Mr. E. M. Battigaglia — counsel for the accused

Applicant pursuant to Section 11(b) of the Canadian Charter of Rights and Freedoms

RITCHIE J.:

[1] Zachary Edwards-Cyrus is accused of drug trafficking, possessing drugs for the purpose of trafficking and possessing the proceeds of crime (five counts in total). The defendant has brought a motion under section 11(b) of the Canadian Charter of Rights and Freedoms, alleging that there has been unreasonable delay in bringing the charges to trial.

[2] At the outset, I wish to thank both Counsel for their excellent materials, including an abundance of very useful case law, and for their comprehensive and helpful submissions.

[3] I must consider the entire timeframe from the laying of the charges to the pending trial. The Crown conceded that the timeframe warrants an inquiry. The principles of law guiding such an inquiry were set out by the Supreme Court of Canada in the Moran decision.

[4] The charges in this case were laid on September 22, 2015, and that is when the time began to run. The trial date was set on April 29, 2016.

[5] Normally the time from the laying of the charges to the setting of the trial date would be viewed as the inherent time requirements of the case, which is of course treated as neutral time. In this case, that timeframe was just over seven months. That is long, considering that the allegations involve a drug sale to an undercover police officer and drugs found on the defendant's person at the time of his arrest and drugs found in the defendant's premises when a search warrant was executed.

[6] The main disclosure took place on November 26, 2015. There were subsequent requests for additional disclosure by the defence. The matter was adjourned (at the request of the defence) for almost six weeks over the year-end holidays. A Crown pretrial took place on January 8, 2016. A bail variation was arranged on January 26, 2016.

[7] In March 2016, the Crown vetted and subsequently disclosed the Information to obtain the search warrant on March 31, 2016 (there was a confidential informant in this case). A second bail variation was arranged in late March (deleting the curfew condition). A judicial pre-trial was arranged and held on April 29, 2016 (the same day that the trial date was set).

[8] Obviously a lot of legitimate activity took place over the seven-month period in question. However, there is one additional factor, which the defence relied upon heavily. The Information to obtain the search warrant (the "ITO") could not be found for a period of about four months (late October 2015 to late February 2016). This factor weighs against the Crown, but I must point out that the ITO was lost in the court system (not the prosecutor's office). Further, the evidence showed that the Crown was diligent and made continuing efforts to locate the ITO.

[9] The defence took the position that it would not participate in a judicial pre-trial or set the trial date until the ITO was disclosed. As a result, matters did not move forward for a period of about two months, in my estimation.

[10] The search warrant is central to half of the charges, but I note that even without the search warrant evidence, the Crown could proceed on 4 out of 5 charges, and only one "proceeds" count would be lost.

[11] In my opinion, the decision of Justice Michael Code in R. v. Richards, 2010 ONSC 6202, is applicable. Justice Code held at paragraphs 22 and 23 that the defence was not justified "in refusing to take preliminary steps, such as attending pre-trials and setting dates for trial", until disclosure was complete. Justice Code also made reference to the Crown's continuing obligation with respect to disclosure, and he treated the timeframe in question as part of the inherent time requirements of the case.

[12] I come to the same conclusions. As a result, the initial seven months should be treated as neutral time. If I were wrong in this, I would designate the two-month period referred to as institutional delay.

[13] I am turning now to the second timeframe. A section 11(b) motion was set for June 20, 2016, a Garafoli application was set for August 19, 2016 and the trial was set for October 24 and 25, 2016. The timeframe is almost six months. Part (but not all) of this time must be viewed as institutional delay. There are a number of factors to consider in the present case.

[14] In R. v. Schertzer, 2009 ONCA 742, the Ontario Court of Appeal stated as follows at paragraph 114: "Ordinarily, the time taken to complete the trial, including resolution of pre-trial motions, the hearing of evidence and, in a judge-alone case, time while the decision is under reserve, is part of the inherent time requirements of the case." There are two pre-trial motions in the present case, and the ruling therefore has application.

[15] Further, as a result of the Crown's initiative, the Court provided four additional dates during the summer, namely July 6, July 15, August 3 and August 12, 2016. The defence was unavailable on those dates.

[16] In my view, the trial should have taken place by the end of August. I would deduct two months for the preparation of transcripts and the hearing of the pre-trial motions. That leaves an institutional delay in this case of approximately two months. If I erred with respect to the inherent time requirements, as I mentioned above, that would mean a grand total of four months institutional delay.

[17] The Moran decision set a guideline of eight to ten months for institutional delay. I was provided with case law which suggested that the guideline should now be read as eight months or less. I have difficulty with that proposition, given the increasing complexity and length of the matters coming before the courts, in addition to the increasing numbers. However, I have not heard evidence on the point, and it makes no difference anyway, since the institutional delay in the present case is far below the bottom end of the Moran guideline.

[18] There were no waivers of time in the present case and, as my foregoing analysis may suggest, I am not of the view that either the Crown or the defence should be considered responsible for delaying this matter.

[19] I will address the issue of prejudice, even though prejudice is obviously less of a concern in light of the relatively short period of institutional delay.

[20] There is clearly prejudice to the defendant flowing from the charges themselves and a potentially negative result at trial. However, delay is a relatively minor factor, in my view.

[21] Mr. Edwards-Cyrus was released on bail three days after his arrest. There were five conditions of bail: 1) no weapons 2) no illicit drugs 3) reside with surety 4) 10 p.m. to 6 a.m. curfew, unless with surety, and 5) maintain employment.

[22] The defendant, in his affidavit, stated that he lost out on a better paying position because he couldn't work in the late evening. That was raised with the Crown, and the Crown agreed to a midnight curfew. Subsequently, the alleged restrictiveness of the curfew was again raised with the Crown, and at that time they agreed to delete the curfew condition.

[23] The defendant also stated in his affidavit that the curfew had "affected [his] social life" and "there were times [I] couldn't see [my girlfriend]" and "spend as much quality time [with her]" and "be there for her the way I would have liked to" when she had a miscarriage.

[24] The Crown submitted that the bail is not onerous, in that there are no conditions respecting, for example, house arrest, reporting requirements and restrictions on the possession and use of cell phones, as is often the case with charges of this nature. The Crown also pointed out that they were responsive to defence requests for bail variations, when matters were drawn to their attention. Further, as the Crown suggested, Mr. Edwards-Cyrus' complaints about the relatively modest restrictions on his lifestyle are remotely connected to delay. In my view, very little actual or inferred prejudice can be ascribed to delay.

[25] With respect to the societal interest, I view the charges as serious, and it is in the interests of society that there be a trial on the merits, in my opinion.

[26] As I have indicated, I must consider the entire time to trial and all of the circumstances. The total time to trial in this case is just over 13 months. In light of my analysis, I conclude that there has not been unreasonable delay.

[27] The defendant's section 11(b) Charter rights were not breached. The application is dismissed.

Released: June 23, 2016

Signed: "Justice John M. Ritchie"