Ontario Court of Justice

Date: 2016-09-01 Court File No.: Newmarket 15-05821

Between:

Her Majesty the Queen

— AND —

Van Tien Ly

Before: Justice Joseph F Kenkel

s. 11(b) Application Heard on: September 1, 2016 Ruling: September 1, 2016

Counsel:

• Mr. Brian McCallion — counsel for the Crown
• Ms. Donna Pledge — counsel for the defendant Ly

Decision

KENKEL J.:

[1] Mr. Ly attends court today for his third trial date. The previous two trials were both adjourned because there was no fully accredited Vietnamese interpreter available. The accused applies to have these proceedings stayed pursuant to s. 24(1) of the Charter to remedy a breach of his s. 11(b) rights.

[2] The Information was sworn July 22, 2015. There's thirteen months and 11 days (408 days) from that date to today's trial date. The adjournment from August 6th to September 2nd was at the request of the defence. The September 2nd adjournment was mutually agreed upon so that the parties could hold a pre-trial meeting. A trial date was set on October 1st.

[3] Subtracting defence delay of 28 days (Aug 6 – Sep 2) from the total delay of 408 days leaves 380 days net delay or 12 and a half months. That falls well below the presumptive ceiling for this court. The burden is therefore on the defence to show that the delay is unreasonable. The defence must show that they took meaningful steps to expedite the proceedings and that the case took markedly longer than it should have. R v Jordan 2016 SCC 27 at para 105

[4] During this transition period, the two criteria of defence initiative and whether a case took too long must be applied contextually, sensitive to the reliance of both parties on the prior state of the law. Jordan at paras 92-99.

[5] The quick pace of this case shows that the defence acted with dispatch throughout. I agree with the defence that this initiative, although not required at the time, assists their submission on the second point that the delay is unreasonable.

[6] The issue is therefore whether the applicant has shown that the case took markedly longer than it should have. As the Crown notes, this is a time analysis. Prejudice caused by delay is already factored into the fixed ceilings. See Jordan at para 54.

[7] On the prior Morin analysis, delay would have been calculated from October 1st, 2015 to today's date, less some time for defence preparation for the first trial date as the defence did not state their availability at the time the date was set. That would be 11 months less attributed preparation/availability time. The result would have fallen within the administrative guidelines set for this court and a stay would only result on a demonstration of prejudice. The inherent prejudice of multiple trial dates here was alleviated by advance notice that an interpreter was not available on the first trial date and by a quick adjournment on the second. The accused only attended court two times and his evidence shows both attendances were brief. The prejudice referred to by the defence related to lost wages for court attendance but the accused returned to work both days.

[8] The Supreme Court stated in Jordan that stays for delay falling below the presumptive ceiling are expected to be rare, limited to clear cases. Jordan at para 48

[9] While I agree with the defence that a third trial date is unfortunate, and the case has taken longer than it should have, even considering the transitional circumstances I'm unable to find that it took markedly longer such that a stay of proceedings is appropriate.

[10] The application is dismissed.

Delivered: September 1, 2016

Justice Joseph F Kenkel