Court Information

Information No.: 14-1237

Date: November 24, 2016

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— and —

Ngoc Loi Nguyen

Before: Justice G.A. Campbell

Counsel:

• B. Pillon, for the Crown
• A. Zaitsev, for the Accused

CAMPBELL J.

REASONS FOR JUDGMENT

1: THE APPLICATION

[1] The applicant was arrested and charged with common assault on July 1, 2014 following an altercation she had with a co-worker the day before. The trial was heard on January 28, 2016 and June 13, 2016. After the evidence was in and before submissions commenced on August 8, 2016, the accused moved by formal application returnable July 15, 2016 raising the issue of delay. Following submissions from counsel, it was agreed that the relief sought in the application would be unnecessary if the Crown's case was dismissed. On that basis, it was agreed that we would proceed to submissions on the merits of the prosecution as scheduled for August 8, 2016 without prejudice to the accused's right to continue with the delay application.

[2] On September 14, 2016 I released reasons in support of a finding that the evidence had established the applicant assaulted her co-worker outside of their place of employment on June 30, 2014. As a result, the application alleging unreasonable delay was argued on October 14, 2016. What follows is a brief summary of the history of this proceeding, my analysis and conclusion.

2: HISTORY OF PROCEEDING

[3] Between the date when Ms. Nguyen was charged and the final date when we convened for submissions, a period in excess of 25 months had passed. There are six significant dates in total. Those dates can be broken down into initial charge, first trial date, second trial date, third trial date, fourth trial date and final date for submissions. There were only two days of actual trial when evidence was heard. The other two dates resulted in adjournments.

[4] Both the applicant and complainant in the proceeding required Vietnamese interpreters. It was discovered by the prosecution during the proceeding that only two fully accredited Vietnamese interpreters were available through the Ministry of the Attorney General. This fact played an important role in the delay associated with getting this case to trial.

2.1 Charge date to first trial date

[5] Two pre-trials were conducted on October 16 and then again on November 20, 2014 before counsel spoke to the matter in remand court on November 26 to schedule the first date for trial. The first trial date was set for October 1, 2015, exactly 15 months from the date when Ms. Nguyen was first charged.

2.2 First trial date – October 1, 2015

[6] When the matter was called for trial on October 1, 2015 counsel indicated there were some preliminary concerns. In particular, the Crown identified five issues but after identifying the most significant concern; namely, a fresh statement from the complainant that was described by the Crown as being fundamentally different from the police statement previously disclosed, the presiding judge had serious concerns about starting the trial.

[7] It is noteworthy here to point out that the accused was represented by a law student from Community Legal Aid. In addition, notwithstanding it being apparent from the outset that Vietnamese interpreters were required for this proceeding, there could be no doubt that the reason for this late disclosure highlighted the importance of the role the interpreters would have in this proceeding. The fresh statement was prepared and delivered as a consequence of the complainant's indication that the first statement she made to the police had not been interpreted accurately.

[8] The remaining four issues that were on the minds of the Crown and CLA representative were not addressed. The presiding judge essentially moved on her own motion to adjourn the trial on the basis that the defence couldn't possibly be ready to proceed. Ms. Nguyen's representative didn't quarrel with the reasonableness of the adjournment although he was careful to note that his he and his client attended that day ready to proceed.

[9] The matter was sent to an assignment court to schedule another date for trial. When the case was called before the presiding justice of the peace on October 28, the additional reasons for why the case did not proceed were stated on the record. This included the fact that there was no interpreter for the complainant on October 1st and the interpreter who appeared for the accused would have only been available for part of the day. The Crown maintained during submissions on this application that it could have started its case on October 1st with witnesses other than the complainant and presented some evidence before the accused lost her interpreter for the remainder of the day but he was unable to address this proposal before the judge adjourned on the trail on its own motion.

[10] In addition, the remaining concerns outlined that day included the lack of a will say statement from the employer of the complainant and accused who was in attendance for the first day of trial, and the failure of another Crown witness to attend. The matter was adjourned for a further three weeks at the accused's request because the will say statement from the employer was still not available.

[11] On November 18, 2015, a new date for the commencement of the trial was scheduled for January 28, 2016 with a one day time estimate.

2.3 Second date for trial – January 28, 2016

[12] I heard from four Crown witnesses on January 28th. The proceeding commenced at 10:10 a.m. and concluded at 4:30 p.m. with the Crown indicating that it may have one more witness to call. Neither the prosecutor nor the accused's representative were able to provide an estimate of time that would be needed to continue the trial. The case was therefore adjourned to the assignment court to allow the prosecutor and Ms. Nguyen's representative an opportunity to discuss who would be called next and how much time would be required.

[13] The case was called five times at assignment court during the month of February. On February 3 the CLA representative wanted to set a date but the trial coordinator did not have a date to offer. On February 10 the only date offered was not available to the accused's representative because CLA law students would be in examinations. On February 11 no dates were available. On February 22 a date was offered acceptable to the accused but the Crown needed to check his availability. Finally, on February 23 the parties confirmed a trial continuation date of March 1, 2016.

2.4 Third trial date – March 1, 2016

[14] When the case was called for trial continuation Crown counsel indicated that the Vietnamese interpreter for the accused had notified his office the day before that he was not well. Efforts to try and find another accredited interpreter resulted in the prosecutor learning for the first time that the Ministry of the Attorney General had only one other accredited Vietnamese interpreter available and that person was out of the country. As he put it, "that leaves all of Ontario with no remaining Vietnamese interpreters save for one person who is conditionally accredited. I'm less than certain frankly, what that means, but that interpreter had been scheduled in Chatham Provincial Offences Court at 10:00a.m. this morning because he or she was the only option. That person was told to attend this court as soon as they could which I'm told is approximately 11:00 – 11:30 as they didn't anticipate being very long in Chatham." There were two options put forward – to wait for the conditionally accredited interpreter to arrive form Chatham and conduct a voir dire as to his qualifications to interpret during the course of the trial for Ms. Nguyen or adjourn the matter and schedule another to ensure an accredited interpreter is available. I should add here that it was also pointed out by counsel that the accused would be testifying this date in her own defence and she would of course required a proper interpreter.

[15] The representative for Community Legal Aid indicated that he was prepared to proceed with a qualification voir dire. I indicated that I had some reservations which included a concern that it was already 10:45 a.m. The unaccredited interpreter had not yet arrived although was expected by late morning, and foresaw that the time it would take to conduct a voir dire and rule on his qualifications would likely take us into the afternoon. Thus there was uncertainty in regard as to how far we would get into the evidence should we complete the voir dire in any event. Nevertheless, I informed counsel that I was prepared to proceed with the voir dire if that was their desire but suggested a recess for them to discuss the matter and indicate upon my return how they would like to proceed.

[16] Upon resuming 10 minutes later, Crown counsel and Ms. Nguyen's representative said they were consenting to an adjournment for the purpose of ensuring an accredited interpreter would be available for Ms. Nguyen when she testifies. The matter was therefore sent to the remand court to schedule another date for continuation of the trial since the Crown would have to make inquiries about the availability of one of the two accredited Vietnamese interpreters. The case was adjourned again on March 9 to March 16, 2016 at which time a continuation date of June 13, 2016 was assigned.

2.5 Fourth trial date – June 13, 2016

[17] In anticipation that the case may once again get off the rails because of the lack of an accredited interpreter, a new face from Community Legal Aid, Alexei Zaitsev, came armed with an extensive brief of authorities should the need for an interpreter qualification voir dire arise. Fortunately, a fully accredited interpreter from the MAG was in attendance and the trial evidence was concluded following Ms. Nguyen's testimony. Although Crown Counsel and Mr. Zaitsev indicated they were prepared to start submissions, I informed them that I could benefit from a transcript of the testimony from the first day of trial insofar as it had been some four-and-a-half months earlier and I could foresee that much would be said about the complainant's testimony. I assigned a date of August 8, 2016 for submissions.

2.6 Submissions – August 8, 2016

[18] Submissions proceeded as scheduled on August 8, 2016. on September 14, I found the Crown had met its burden and was satisfied that Ms. Nguyen had assaulted her former co-worker in violation of s. 266 of the Criminal Code.

[19] The application before me requires a determination about the reasonableness of the delay in bringing this matter to trial which a took in excess of 25 months from the date of charge to the date of my decision. As a consequence of the Supreme Court of Canada's decision in R. v. Jordan, 2016 SCC 27, the period of 25 months and 8 days is presumptively unreasonable.

3: THE LAW

[20] The Supreme Court of Canada's recent changes to the framework that determines whether an accused person has been tried within a reasonable period of time created a presumptive ceiling of 18 months on the length of a criminal case in provincial courts. That time is to be measured from the date of charge to the end of trial. Institutional delay has no impact on the presumptive ceiling. That is to say, the Crown cannot rely on institutional delays associated with a court system that is overburdened as an excuse for why the case was not brought to trial sooner. Although any delay directly attributable to an accused or waived by the defence doesn't count towards the presumptive ceiling, in circumstances where the presumptive ceiling has been exceeded, the accused is no longer required to go through the task of demonstrating prejudice. In short, there is now a more regimented framework with a prescribed ceiling that is intended to provide greater certainty and avoid complacency.

[21] As a starting point, the question becomes whether the Crown can rebut the presumption of unreasonableness. The only way the Crown can rebut that presumption is to demonstrate that there were exceptional circumstances. Although the Supreme Court said that it was impossible to identify in advance all of the circumstances that may qualify as exceptional, examples will include discrete events such as an illness or an unexpected event at trial, and particularly complex cases. These are circumstances that would fall outside or beyond the Crown's control because they are unforeseen, unavoidable and cannot be remedied. So the burden is on the Crown to rebut the presumption of unreasonableness by establishing the existence of exceptional circumstances.

[22] There is one other qualifier however for the purpose of this application. Because Ms. Nguyen's case was already in the system before the new presumptive ceiling was pronounced, this is therefore a transitional case that requires a determination as to whether the parties justifiably relied on the pre Jordan state of the law. The Crown bears that onus as well. To this end, there is more of a contextual analysis about the unreasonableness of the delay and this can include the acceptance of institutional delay as a part of the reason for justification.

4: ANALYSIS

[23] The period of time at issue in this proceeding is 25 months and 8 days. From the outset the applicant conceded that 3 weeks of delay should be attributable to the accused arising from a request made to adjourn before setting a new date for trial after the October 1st adjournment. The time to trial at issue therefore totals 24.5 months and is presumptively unreasonable. The question to be answered is whether exceptional circumstances arose during the course of this prosecution.

[24] This was not a complex case. It was an allegation of common assault. The applicant took umbrage with her senior co-worker's complaints about the way she was doing her job. After work ended, she waited outside of her workplace for the complainant to exit at which time she accosted the victim with punches and at least one kick. There were no other witnesses to the assault. The remaining witnesses were the victim's daughter and a police officer. They spoke further about the complainant's condition and her injuries after the fact. The accused testified and was cross-examined in the usual course. Neither the issues to be determined nor the evidence adduced were complex. This was a straight-forward and routine prosecution of a common assault.

[25] The prosecution points to the problem with obtaining accredited interpreters as discreet events that fall within the exceptional circumstances provided for in R. v. Jordan. He argued that these were important considerations that the Crown had to remain mindful of as the accused had a constitutional right to the assistance of a Vietnamese interpreter. To that end, he argued the Crown did its best to ensure interpreters were available and that it was beyond the prosecution's control when they either failed to show or were not properly accredited.

[26] I have no doubt based on all I observed and from what I have read in the transcripts from the proceedings where I was not present, and the transmitted communications between the Crown and CLA that the Crown was concerned about the accused's protected right being met. Concurrently, the record is equally clear in indicating that Ms. Nguyen's representatives from CLA steadfastly demonstrated the desire of the defence to proceed to trial in a timely manner. At no time did the defence ever waive the accused's right to be tried within a reasonable time, even implicitly.

[27] On the first trial date, October 1, 2016 before Justice Rawlins, the CLA representative indicated the defence was ready to proceed. As I indicated it was on the court's own motion that the matter was adjourned. I don't quarrel with the presiding judge's decision in that regard. With all due respect to CLA and the good work that it tries to do, the representative had just received a new statement that morning that was not only described by the prosecutor as fundamentally different from the earlier one but also an explanation for the late disclosure being that the interpretation of the previous statement was suspect. The person who interpreted the first statement to the police was the victim's daughter and she was also scheduled to be a Crown witness for the trial. Students from the university participating in the CLA program require guidance and mentoring. The decision to proceed could not be made properly without an opportunity to review the matter carefully, not only with the client in the presence of a qualified interpreter but the student must also have the opportunity to discuss the development with his mentor before a proper decision could be made. It was proper for the presiding judge to adjourn the proceeding on October 1st.

[28] By March 1, 2016 the Crown was aware there were only two fully accredited Vietnamese interpreters throughout the province that were available through the Ministry of the Attorney General. On that date, being the second day scheduled for trial continuation, there was some discussion about the potential availability of a conditionally accredited interpreter who was in Chatham. Although I urged caution about proceeding with the voir dire, I indicated to counsel that I would nevertheless do so if they were so-inclined after considering the matter during a brief recess. It was clear to me again that the CLA representative was prepared to proceed with the voir dire but ultimately agreed to adjourn the proceeding after a brief discussion with the Crown. Again, at no time did the defence abandon the accused's right to be tried within a reasonable time or waive delay and but for my suggestion to consider rescheduling to another date for reasons previously indicated, the defence was ready to proceed.

[29] What is noteworthy here is that the Crown was already aware that the availability of Vietnamese interpreters was becoming a problem and by this date fully accredited ones were at a premium because there were only two and one was out of the country. I said before in the case of R. v. Eric Patrick Blair, 2012 O.J. No. 1834 that the fact the Ministry of the Attorney General has developed a uniform standard for court interpreters has not changed the role of the court to satisfy itself that an individual being proffered as having a particular expertise is suitably qualified to do so. Notwithstanding the Ministry of the Attorney General's initiative, a court may be called upon to consider the ability of an individual to interpret during a trial based on the criteria outlined in R. v. Tran, [1994] 1 S.C.R. 951, and the Ontario Court of Appeal decision in R. v. Rybak, 2008 ONCA 354.

[30] I understood from submissions that there remains a significant need for Vietnamese interpreters. That Vietnamese falls within the top 25 languages typically called upon for interpretive services in Ontario courts and represents 85% of the demand. I did not have any empirical data on any of this but if I understood counsel's submission accurately, the practice of expecting the MAG to supply fully accredited interpreters for trial should give way to the practice of the court qualifying the interpreter in circumstances such as these when it is foreseeable that the language at issue is in high demand, the availability is limited and the time to trial is approaching unreasonable.

[31] Even if part of the time associated with the difficulty the Crown had obtaining interpreters from the MAG might be definable as a discrete event, the difficulty was a foreseeable problem at least part-way into this prosecution. Mr. Pillon conceded during submissions that regardless of any argument he might have in regard to demonstrating exceptional circumstances, the total time he might be able to carve out would still not bring the time to trial below the presumptive ceiling of 18 months.

[32] For all of these reasons it is clear to me the Crown has not rebutted the presumption of unreasonableness on the basis of exceptional circumstances. However, as I indicated earlier, this case was already underway before the Jordan decision was released, and as such, the new framework is subject to a contextual application. In this case, only the first qualification for transitional cases applies insofar as the total delay minus defence delay does not fall below the presumptive ceiling.

[33] Having regard to the Morin framework, I should here then repeat there is nothing to indicate the accused ever waived her right to be tried within a reasonable time, and again for reasons previously indicated, this was not a complex case. The inherent requirements associated with retaining counsel disclosure and related activities equated to less than five months but included within that block of time, two pre-trial conferences. A pretrial is required in this jurisdiction for any trial requiring one day or more of time to complete. Accordingly, I would not attribute the entirety of that time to the inherent requirements as it included mandated pre-trials. There was a period of approximately one month between the two pre-trial dates. Accordingly, I would attribute four months as inherent time associated with the usual administrative steps of the proceeding.

[34] In addition, there were the three weeks identified earlier as attributable to the accused during remands as the applicant requested a will say statement from the former employer. Insofar as institutional delay is concerned, for reasons previously indicated, I cannot accede to the suggestion that a big part of this delay was associated with the inability to obtain accredited interpreters. It is convenient to rely upon those provided by the Ministry of the Attorney General but it is not necessary. As I said in Blair (supra), the MAG's decision to test and accredit interpreters was a welcome initiative in the province but it has fostered reliance and complacency which in this case contributed in no small way to a delay of this proceeding. This cannot all be laid at the feet of the Crown. The defence and judges have all tended to rely on the routine supply of Interpreters from the MAG as well. In circumstances such as these when the defence has steadfastly indicated they are ready to proceed, it's difficult to attribute so much of the delay because of a lack of qualified interpreters to institutional delay on the basis that the system could not accommodate the accused's readiness for trial. Further emphasis should have been made to ensure that a fully accredited interpreter was available and in the absence of one, for the court to embark on a qualification voir dire rather than adjourn. Both the court and the prosecution should have been live to this issue. Instead reliance on the MAG initiative took priority and contributed to the inevitable delay of Ms. Nguyen's trial.

[35] As I indicated, the accused was interested in proceeding with a voir dire on March 1st when the matter was before me and again came ready to conduct a qualification voir dire on June 13, 2016, although on this date it did not become necessary. It was not only the lack of a qualified interpreter but also the absence of one that continued to be a nagging problem throughout the proceeding and even continued after all the evidence was in. After my decision was released and this application scheduled to be heard, the accused attended again only to learn the MAG interpreter was not in attendance. As stated in Morin, there is a point in time at which the court will no longer tolerate delay based on inadequate resources.

[36] Although prejudice to the accused is no longer a consideration under the new framework, it was previously. To this end, Mr. Zaitsev included in his material an affidavit from Ms. Nguyen that moved beyond the inferred prejudice that is recognized in every criminal case which I should say in this case was compounded having regard to the period of delay beyond the administrative guideline contemplated in Morin of 8 to 10 months. The affidavit reveals that as a consequence of the charges and bail restrictions which of course prevented her from having any contact with the victim, she lost her employment. Ms. Nguyen indicated that her employer actually wanted her to come back to work but she was not able to do so because the complainant continued to work there. All of this contributed to a decline in a pre-existing health condition which became exacerbated by each further attendance and adjournment of this trial.

[37] I hold the opinion that notwithstanding making allowances for the inherent time requirements associated with this case, the actions of the accused, although limited, may have only partially contributed to delay. And by even making some allowance for institutional delay, the degree of complacency associated with this prosecution remained inordinate. As a consequence, even from a contextual application based on the transitional provision outlined in Jordan, I do not believe the Crown has satisfied me that the time this case has taken to conclude can be justified.

[38] In the circumstances therefore, I am ruling and hereby instructing the Clerk of the Court to enter a stay of this proceeding against Ngoc Loi Nguyen.

[39] One final note. The University of Windsor, through Community Legal Aid, provides a service to the people of Windsor and Essex County who do not qualify for Legal Aid through the provincial program. I indicated earlier that I shared the sentiment of Justice Rawlins when the case was first called to trial that it was prudent for the case to be adjourned in those circumstances in part because the accused was represented by a student from CLA. Proper mentoring is very important for these law students. Now, with all due respect to the earlier students who carried the matter forward early on in the proceeding, I observed there was a change in Ms. Nguyen's representative from CLA during the conduct of this proceeding.

[40] In particular, I met the law student Alexei Zaitsev I believe for the first time on June 13, 2016 when he attended, as I have already indicated, ready to conduct a voir dire with a well-organized brief of authorities. Mr. Zaitsev handled the defence from that day forward which included completion of the trial, submissions on the merits of the Crown's case, receiving the decision and of course this s. 11(b) application.

[41] Mr. Zaitsev not only conducted himself professionally throughout, but he was always prepared. His materials were well-organized and reasoned and his submissions were sound. Ms. Nguyen should know that she was well-represented by the Community Legal Aid team, and in particular, Mr. Zaitsev.

Released: November 24, 2016

Greg A. Campbell

Justice