Court File and Parties

Ontario Court of Justice

Date: 2016-08-29

Court File No.: Brampton 15-591

Between:

Her Majesty the Queen

— and —

Tan Van Tran

Before: Justice Patrice F. Band

Heard on: June 21 and July 22, 2016

Ruling on s. 11(b) Charter Application, released on: August 29, 2016

Counsel:

• Ms. V. Rivers, counsel for the Public Prosecution Service of Canada
• Mr. R. Silverstein & Ms. I. Grant, counsel for the defendant Tran

BAND J.:

I. INTRODUCTION

[1] Mr. Tran seeks a stay of proceedings on the grounds that his s. 11(b) Charter right to be tried within a reasonable time has been breached. The total delay from arrest to anticipated trial date is approximately 20.5 months. None of it is attributable to the Defence. Rather, it is the result of delayed disclosure and institutional delays.

[2] The delay exceeds the ceiling set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 ("Jordan"). Since this case was already in the system before Jordan, the question is whether the "transitional exceptional circumstance" applies.[1]

[3] For the reasons that follow, I have decided that it does not and Mr. Tran's charges will be stayed.

II. PROCEDURAL BACKGROUND

[4] On December 15, 2014 Mr. Tran was arrested and charged with production of marijuana, possession of marijuana for the purpose of trafficking (over 3 kg), possession of marijuana (under 30 g.) and theft of electricity. A four-day trial has been set for August 29, 2016. That date was not and, the parties agree, could not be set until November 20, 2016.

[5] In keeping with court protocol, the s. 11(b) argument was set to be heard prior to trial. It was argued before me on June 21, 2016, and I reserved my decision. A short time later, the Supreme Court released Jordan, which presents a new framework for the s. 11(b) analysis. As a result, I invited the parties to attend to make further oral submissions. They did so on July 22, 2016, and I reserved my decision.

III. APPLYING THE JORDAN FRAMEWORK TO CASES ALREADY IN THE SYSTEM

[6] In Jordan, the Supreme Court identified ceilings beyond which delays are presumptively unreasonable in the trial courts. For trials in the provincial courts, the ceiling is 18 months. To calculate the delay, judges must tally up the time between the charge and the actual or anticipated trial date, and subtract from that period any Defence delay. If the remainder exceeds the ceiling, then it falls to the Crown to establish the presence of exceptional circumstances or, in the case of matters that preexist the release of Jordan, the applicability of the "transitional exceptional circumstance." As the Court wrote at paras. 96-98 of Jordan:

This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied... For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable.

Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues.

On the other hand, the s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework.

IV. THE CONTEXT: PEEL REGION

[7] In R. v. Reid, [2005] O.J. No.5618 (O.S.C.J.) Durno J., sitting as a summary conviction appeal judge, held that the trial judge had erred in applying the 8 to 10 month guideline to Peel Region in a case that he characterized as "somewhat more than a straightforward case." The appropriate guideline in Peel for institutional delay in a "somewhat more than straightforward case" was 8-9 months. More recently, in R. v. Ratneswaran, (2013) O.J. No 5037 and R. v. Purewal, (2014) O.J. No 2824, Durno, J. acknowledged that 8 to 9 months of institutional delay as set out by the court of appeal in R. v. Rego, (2005), O.J. No. 4768 is still appropriate in Peel for a straightforward case.

[8] In response to a question of mine in oral argument, the Crown quite fairly conceded that there has not been a culture of tolerating lengthy institutional or Crown delay when assessing s. 11(b) claims in Peel Region. This accords with my experience here. As a general rule, adjournments of trials or matters in the plea court are routinely accompanied by the parties' positions concerning s. 11(b) rights. Since early 2015, with the cooperation of the Defence and Crown, this court has instituted new approaches to judicial pre-trials and trial scheduling. The goals have been to foster resolutions where appropriate and to minimize delay and inefficiency by estimating trial length more accurately, reducing day-of-trial "collapse rates" and eliminating the need for trial continuations. Peel Region is not a delay tolerant or complacent jurisdiction.[2]

V. THE FACTS

A. Delayed Disclosure

[9] The facts are not in dispute. The main reasons for the delay were the Crown's failure to make timely disclosure of important items and institutional delay of approximately 9 months from set-date to anticipated trial date.

[10] Mr. Tran is alleged to have been the person responsible for a marijuana "grow-op." Somewhat uncharacteristically, the matter came to the attention of the authorities by happenstance during the course of an unrelated investigation, and a search warrant was obtained on the strength of their own observations.

[11] Upon arrest, Mr. Tran gave a statement in Vietnamese. The police synopsis described it as "inculpatory."

[12] Ms. Nguyen, Mr. Tran's wife, was interviewed by police. She also gave her statement in Vietnamese.

[13] The Defence made sustained efforts to receive the Information to Obtain the search warrant (the "ITO"), Mr. Tran's statement to police, Ms. Nguyen's witness statement and copies of booking videos. These included regular correspondence to the Crown's office and court appearances, as well as scheduling a judicial pre-trial conference, the sole purpose of which was to spur the Crown. (It was held on October 9, 2015.)

[14] According to the Crown, both statements had to be translated into English and vetted by police prior to disclosure. While the Crown pointed to the potential for a witness such as Ms. Nguyen to be a confidential informant ("CI") in some cases, she did not argue that the concern arose in this case. She also agreed that in the ordinary course, where such a concern arises, a simple telephone call to the officer-in-charge provides the answer.

[15] Likewise, the Crown indicated that an accused's own statement could be cloaked with CI privilege such that it cannot be disclosed to Defence counsel without his or her informed consent. She also indicated that in order to give informed consent, the accused would require independent legal advice. This argument, of course, can become circular. In any event, no such concerns applied in this case. And, once again, had there been any, they could have been addressed by a simple telephone call.

[16] What is clear is that the Crown was not in possession of Mr. Tran's statement until some time between August 6 and October 14, 2015. The Crown further acknowledged that the process of translation did not begin until the summer of 2015.

[17] The Crown also advised that the ITO had to be vetted before being disclosed. This is as it should be. ITOs are frequently sealed by the court upon issue and can involve CIs. But it is clear that the Crown was aware of its existence prior to Mr. Tran's first appearance. What followed from that point was, as the Crown aptly put it in her oral submissions, "a comedy of errors."

[18] Once the police deliver the initial disclosure package containing an ITO, a Crown is responsible for vetting it. To do so, the ITO must be ordered unsealed by a judge. This is a routine process. Once that is done, the Crown flags ITOs according to whether they raise concerns about CIs or not. Where they do, the Crown must discuss with the officer-in-charge and, potentially, with the affiant. This takes time.

[19] Where no such concerns arise, the ITO can be disclosed subject to routine vetting.

[20] The Crown acknowledged that the ITO in this case raised no concerns about CIs and that it ought not to have been sealed.

[21] A copy of it appears in the Defence application and from a quick reading of it, it is plain that the sources of the information are police officers. Nonetheless, the Crown who looked at it initially did not flag it as involving "no CIs." As a result, it languished in the CI stream until July 23, 2015. I also note that it was not unsealed until May 2015.

[22] The ITO, the booking videos and Mr. Tran's own statement to police were not made available until 7, 9 and 10 months after Mr. Tran's arrest, respectively. Ms. Nguyen's statement was provided approximately 9.5 months after Mr. Tran's arrest.

[23] The Crown acknowledged that it was not until the ITO and Mr. Tran's statement were disclosed that the Defence was in a position to make decisions as to mode of trial and pre-trial motions, much less participate meaningfully in trial length estimates.

[24] Having received these items, the Defence was in a position to set a trial date on November 6, 2015. After a compulsory second judicial pre-trial conference, held on November 20, 2015, the trial date was set. It was the first date offered by the court.

[25] Of note, as of June 2016, neither Mr. Tran's nor Ms. Nguyen's statements had been translated formally. Rather, the Defence was given only "police synopses" of their contents.

B. Defence Evidence

[26] Mr. Tran provided an affidavit in support of his application. Mr. Tran claims that he suffered "actual" prejudice. He cites increased legal fees owing to the multiple letters and additional court appearances related to the Defence's quest for complete disclosure as well as the costs associated with s. 11(b) application. He also points to the accumulation of stress over the months awaiting trial. The Crown did not seek to cross-examine him during the hearing. I accept his claims as true.

VI. POSITION OF THE PARTIES

A. Characterization of the Trial

[27] The Crown argued that the trial is "moderately complex", owing to the number of witnesses (9 police officers), and the possibility of an expert being called from Ontario Hydro. She also pointed to the need for translation of the statements.

[28] The Defence argued that the trial is simple. The only issues are the voluntariness of Mr. Tran's statement, and whether he had knowledge and control of the illicit substance and electricity. The Defence is not challenging the search warrant.

[29] In my view, owing to the Defence's focus on two issues – voluntariness and "knowledge and control" – this four day trial matter is straightforward.

B. The Parties' Morin Positions

(1) Time Calculations

[30] The Crown submitted that the total Charter-relevant delay is 13.5 months. On the basis that the matter is "moderately complex" and involved a sealed ITO, she submitted that a 5.5 month inherent and neutral period was justified. This included an intake period of 4 months and 1.5 months to schedule a judicial pre-trial.[3] She argued that one month's preparation time ought to be allotted to the Defence. When the date was set on November 20, 2015, the Defence indicated that it was available as of December 1. As a result, the Crown also argues that that period ought to count against the Defence. The Crown accepted responsibility for 4.75 months owing to delayed disclosure.

[31] The Defence submitted that the total Charter-relevant delay is 17.5 months. Arguing that the matter is simple, the Defence submitted that a 3 month inherent and neutral period was justified. This included an intake period of 2 months in a simple case, 2 weeks to set a judicial pre-trial and 2 weeks to prepare for trial.

[32] In my view, 3 months for intake in such a prosecution is reasonably justified, owing to the need to translate the statements. Given that the ITO ought not to have been sealed, I would not increase that period. I agree with the Defence that 2 weeks' preparation time was sufficient. Mr. Silverstein is a very experienced counsel, and the matter is straightforward. As a result, I would have assessed the Charter-relevant period at 16.5 months.

(2) Prejudice

[33] The Crown argued that Mr. Tran did not prove any "actual" prejudice. In particular, she pointed to the absence of real impact on his liberty and security of the person, since he had been released on a promise to appear. She also argued that I should not infer prejudice in a case like this, where the delay exceeded the upper end of the Morin guidelines by 3 months (on her calculations).

[34] The Defence relied on the "actual" prejudice suffered by Mr. Tran in the form of additional legal fees and the accumulation of stress. Also, the Defence urged me to keep in mind the existence of inferred prejudice inherent in lengthier delays.

[35] I would find that Mr. Tran suffered some "actual" prejudice in terms of additional legal fees and accumulated stress. Having calculated the Charter-relevant delay at 16.5 months, I would infer a moderate amount of prejudice in this case.

(3) Seriousness of the Charges/Societal Interest

[36] Given the number of plants at issue (over 1,300) and the mandatory minimum jail sentences that such offences attract, the Crown submitted that this matter is very serious. The Defence did not dispute the seriousness of the charges.

[37] There is a strong societal interest in a trial of such charges on the merits.

VII. CONCLUSION UNDER THE PRE-EXISTING STATE OF THE LAW

[38] This case is straightforward and the Charter-relevant delay ought not to have exceeded the 8-10 month Morin guideline. Yet, it did by 6.5 – 8.5 months. The disclosure problems alone took approximately 10 months to resolve. Even on the Crown's calculation it exceeded the guidelines by 3.5 – 5.5 months. That, in combination with the prejudice I have assessed, would have compelled me to find that a stay was clearly warranted notwithstanding the seriousness of the charges. It is true that society has a strong interest in prosecutions of serious matters on the merits, but it also has a strong interest in seeing that persons like Mr. Tran are treated fairly.

VIII. JORDAN APPLIED – TRANSITIONAL EXCEPTIONAL CIRCUMSTANCE

[39] Because the matter is straightforward and Peel Region is not "plagued by lengthy, persistent, and notorious institutional delays," the Crown cannot (and did not) claim to have relied on systemic delay issues.

[40] In her submissions concerning Jordan, the Crown claimed reliance on the seriousness of the charges and lack of prejudice, but she made it clear that her strongest argument was the former. This was a fair admission. Since prejudice could be inferred based on long-standing case law, it would be difficult for the Crown to claim reasonable reliance on the absence of any prejudice in the face of significant delays. In this case, it pays to remember that much of the delay was caused by disclosure problems. When known to the Crown, those types of problems invariably cause it to be on a form of delay watch. The transcripts of proceedings in this matter illustrate this. Beginning in August 2015, a number of Crowns advised the court that the Crown wished to "keep the matter moving forward" and was "anxious" to set a trial date.

[41] Reliance on the seriousness of the charges in a situation like this one has never been a safe bet for the Crown. The Defence's book of authorities contains a number of examples of like charges that have been judicially stayed in Ontario in the context of similar and even shorter delays.

[42] The delay in this case clearly exceeds the Jordan ceiling. In light of the serious delays caused by disclosure problems, the previous state of the law cannot justify the 20.5 months that it will have taken to bring Mr. Tran to trial in this straightforward matter. This is especially so where, as here, the accused acted proactively to move the matter to trial and suffered "actual" and inferred prejudice.

[43] The charges are therefore stayed.

Released: August 29, 2016

Justice Patrice F. Band

Footnotes

[1] The Crown does not seek to prove "exceptional circumstances" such as are described at paras. 69-81.

[2] My colleague Botham J. recently reached the same conclusion in R. v. Edan, [2016] O.J. No. 493 (C.J.).

[3] In fact, the delay caused by the JPT was 2 weeks.