Court File and Parties
Court File No.: Central East – Newmarket – 14-08072
Date: 2016-01-12
Ontario Court of Justice
Between:
Her Majesty the Queen Respondent
— And —
Hyun Woo Park Applicant
Before: Justice P.N. Bourque
Counsel:
- S. Kumaresan, for the Crown
- A. Little, for the accused, Hyun Woo Park
Heard: In Writing
Ruling on Charter Application
Released on January 12, 2016
Overview
[1] The Defendant (the "Applicant"), Hyun-Woo Park is charged that on October 23, 2014, he did commit the offence of driving with excess alcohol.
Trial Within a Reasonable Time – Section 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".
[4] The following is a summary of the relevant time periods and actions by the parties which impact upon the issue of delay.
Timeline of Events
Date of offence: October 23, 2014
Date of charge: November 3, 2014
| Date | Event |
|---|---|
| 1st Date: November 14, 2014 | Counsel previously retained attended - Crown did not have a brief and no disclosure provided. Matter adjourned to November 21, 2014. |
| 2nd Date: November 21, 2014 | Initial disclosure provided including DCCTV video (it was subsequently determined that the DVD was in fact blank and without any information) - Matter adjourned to December 12, 2014 - Another disclosure request sent to the Crown. |
| 3rd Date: December 12, 2014 | Counsel stated on the record that the DVD was blank. Adjourned to January 2, 2015. |
| 4th Date: January 2, 2015 | Some further disclosure provided but not the video. Adjourned to January 26, 2015. |
| 5th Date: January 26, 2015 | Crown purported to provide a new DVD (it was later determined that there was no audio) - Adjourned to January 29, 2015. |
| 6th Date: January 29, 2015 | Counsel advised that the DVD disclosure was defective as there was no audio - Adjourned to February 17, 2015. |
| 7th Date: February 17, 2015 | DVD with audio not available. Adjourned to March 3, 2015. |
| 8th Date: March 3, 2015 | Crown still does not have the disclosure. Adjourned to March 10, 2015. |
| 9th Date: March 10, 2015 | Complete DVD finally delivered. Adjourned for Crown Pre-Trial (March 12, 2015). Adjourned to March 24, 2015. |
| 10th Date: March 24, 2015 | Matter set for trial for August 4, 2015 - Trial date of June 30, 2015 unavailable to defence. |
| First trial date: August 4, 2015 | Trial commences at 12:30 and is not complete. Adjourned to December 11, 2015 to continue the trial. Defence offered dates October 26, 2015, November 30, 2015, December 3, 7, 8, 10, 2015. |
| Second trial date: December 11, 2015 | Trial completion. |
Delay Calculations
- Total time from charge to trial completion: (October 23, 2014 to December 11, 2015) = 13 months and 19 days
- Total intake time: (October 23, 2014 to March 24, 2015) = 5 months and 1 day
- Total time from first set date to trial completion: (March 24, 2015 to December 11, 2015) = 8 months and 17 days
Legal Framework
[5] Section 11(b) explicitly focuses 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, 2009 SCC 26, the Supreme Court of Canada revisited and confirmed the 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."
Analysis
Length of the Delay
[9] In this case, the total length of the delay from charge until attendance for the completion of the trial is almost 14 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
[10] In this proceeding, there has been no express waiver of all or part of the time periods.
Reasons for the Delay
Inherent Time Requirements of the Case
[11] 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. The Crown and defence agreed that the trial would take no more than one day. It is a type of case which is routinely dealt with in the Ontario Courts of Justice in this jurisdiction.
[12] There is therefore no reason in the time requirements of the case that the time frame as suggested in Morin should not be complied with; that is, an institutional delay period of between 8 and 10 months.
[13] 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.
Availability of Counsel and Preparation for Trial
[14] In R. v. Tran, 2012 ONCA 18, the court also stated that "Parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel requires time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing…and these times are part of the inherent time requirements of the case." In determining these issues there should be some evidence, either at the time the trial date was set or at the 11(b) hearing, upon which this matter can be ascertained. If not, it would appear that the court is free to (as in Tran) to substitute its own estimates. In assessing the Defence preparation time, obviously the counsel's expertise in dealing with this type of case is a consideration.
[15] Counsel did not indicate on the record their availability for trial. Instead counsel has filed a record from a set date for another case around the same time. That is some evidence but not really what the court had in mind in Tran.
[16] I am prepared to accept based on the totality of the other evidence presented that this counsel would have had his calendar clear for a trial in a week. The question is whether that is the only issue to determine whether counsel was available for trial. In Tran, the court (in a much more serious case) attributed 4 months (or half of the delay period) to preparation time.
[17] Defence asserts that he would have been ready within 24 hours to conduct this trial, and in any event, by the end of the week (4 days). Defence counsel also says that any notice periods required for Charter applications can have no application in this assessment. He does not make mention of reasonable times for procuring attendance of witnesses for trial for both Crown and Defence. He states that if the matter came up quickly for trial and one of those issues arose, an adjournment could be granted and fault assessed at that time. With all due respect to the defence, that would be a somewhat reckless way to run a court system, and surely setting aside court time (already stretched to the limit, at least in this jurisdiction) just to see who's fault the ensuing delay is, would lead to only further delays, for all litigants, not just this defendant.
[18] The defence has shown me several cases where the court does not assess any time requirements under the rules as being attributable to "readiness for trial". In R. v. De Olivera, Brewer J. allocated 15 days for the Crown to subpoena witnesses and prepare for trial, notwithstanding accepting that the defence needed no time to prepare. This approach has been followed in other cases.
[19] I assess a reasonable period of delay, taking into account the necessity of preparing and filing a Charter application (and allowing for short service) a period of 30 days from the trial set date. In other words I find that counsel would have been ready to commence this case in a month. While the Crown would have another 15 days to respond in writing to the application, the defence would be free to waive the time and indeed would be free to waive the requirement of any response at all.
[20] In making this assessment, I am trying to follow the directions in Tran and other cases that the court must assess what is a realistic time to prepare for trial. In setting a notice period of 30 days to bring a Charter challenge, I do not think that the rules committee is being arbitrary or attempting to infringe on anyone's rights. Some deference must be made not only to what defence counsel is capable of doing when pressed, but also whether a Crown's office can deal with, (in a coherent way), the applications and consider and fashion an appropriate response. This is not in my opinion, just a cookie cutter preparation for, and response to, a considered Charter argument. If that were the case, defence would not need the complete level of disclosure that they seek (and are entitled to) to adequately prepare for trial.
[21] The other issue that arises is the unavailability of counsel for the first offered trial date, namely June 30, 2015. As it was just one date and as counsel indicated that he had other dates at or before that date which were not offered, I do not believe that this should be held against the defence.
[22] With regard to the setting of the second trial date, the matter gets more complex. Several continuation dates were offered, starting in October 26, 2015. The second date offered was November 30, 2015, some 11 days before this trial date. As per the above, I do not fault the defence for not being available on the first offered date. Perhaps he should have been available by the second date, but I notice that it is only 11 days before the actual trial date. I am not going to split hairs that finely and do not assess any of this time against the defence.
Actions of the Accused
[23] There are no actions by the accused that in any way interfered with the swift movement of this matter towards the trial. He hired counsel promptly and complied with all of his counsel's retainer requirements.
Actions of the Crown
[24] When the matter came before me to commence the trial in the afternoon of August 4, 2015, I was informed by both counsel that due to the lateness of the start (there was no judge assigned to this matter at the beginning of the day and I only became available as another trial continuation could not be completed), this trial could not be completed on August 4, 2015. I gave the Crown the option of using our triage system to give this trial priority to start before a fresh judge before I would be available for a continuation date. The Crown stated that it would not give this case any priority before December, 2015.
[25] That is another reason that I assess all of the time from August 4, 2015 to December 11, 2015 as Crown and institutional delay. In any event, the Crown accepts responsibility for the delay after August 4, 2015.
Limits on Institutional Resources
[26] The Crown has not brought to my attention any specific limits on the institutional resources in this jurisdiction.
Other Reasons for the Delay – Disclosure Issues
[27] There are also situations where events transpire and cause delays and are no one's fault. In R. v. Meisner, the delay was caused by a conflict of interest which could not be foreseen. The court stated at paragraph 3:
The adjournment of the appellant's trial is an example of one of those things that happens from time to time in the criminal process for which no one can be faulted and which almost inevitably requires an adjournment and rescheduling. Just as intake time is allowed when a case initially comes into the criminal justice system, it is inherent in the process that some time must be allowed to reschedule matters that are adjourned for reasonable and unforeseeable reasons for which no one can be faulted.
[28] In our case, the Crown did not fulfill its obligation to provide a working DVD with audio and video for almost 5 months from the date of the offence. No explanation was ever offered to the defendant or to the court as to why this was the case. It may have just been a series of errors. I note, however, that from the outset, the Crown ostensibly disclosed all of this information. Unbeknownst to them, the disc had not been properly copied and the disc provided did not contain any useable information.
[29] Whatever it was; it is in my opinion the responsibility of the Crown to deal with this matter and even when the police are not responding, it is up to them to see that they do. This is also a case where the defence with a number of follow up letters and statements on the record, left it in no doubt that this disclosure was missing and it was required.
[30] The issue here is what time should I assign to neutral intake and what time should I assign as Crown delay.
[31] The defence urges upon me that I should assign only a period of some 1 and 1/2 months. He argues that the usual intake period of 2 months should be abridged. He pointed to some cases where there were issues with disclosure and this procedure was followed. While that may somehow act as a form of discipline on the crown, it doesn't conform to what has been up to now the usual practice, which is to give the Crown a window of some 2 months to complete all the intake tasks, the most important of which is to provide disclosure. If, as in this case, errors occur which make the provision of disclosure within the two months impossible, then any further time required to complete the task is charged against the Crown in any delay application.
[32] I am not convinced that there are any specific facts in this case which would prompt me to deviate from what is the normal practice.
[33] I therefore assess the first two months as intake and it is neutral. The next three months before setting the trial date, I assess as Crown delay. The fact that there was a period of some two weeks to do a crown pre-trial does not change my analysis. If the Crown had provided disclosure promptly, such a pre-trial could and should have been held within that period.
Prejudice to the Accused
[34] The defendant has filed an affidavit which sets out the prejudice that he has suffered as a result of the delay. In addition to the expected additional emotional pressures, costs of counsel, and the preparation for trial, he relates that he is afraid that with the passage of time that he may become forgetful in the witness stand. He has quantified his extra legal fees at $3500 for the extra trial date and a further $260 for each attendance in court. For the purpose of the delay issue, I accept the extra legal expense for the extra day required.
[35] I find that while he has specified the dollar amount of his extra legal fees, that is a situation which happens in most situations where the trial is delayed. I find it to be real prejudice, but not significantly greater than for any person who must come to court another day due to crowded court dockets.
Conclusion
[36] I find the following periods for the purposes of my analysis:
| Category | Duration |
|---|---|
| Total allowable neutral intake | 2 months |
| Total time to prepare for trial | 1 month |
| Net period of delay | 13 months, 19 days less 3 months = 10 months and 19 days |
[37] This is a delay which exceeds the Morin guidelines but only barely. The question is whether the actual and inferred prejudice to the defendant is sufficient to convince me on a balance of probabilities that his right to be tried within a reasonable period of time has been infringed. I find that I am not so convinced.
[38] I therefore dismiss this application.
Signed: "Justice P.N. Bourque"
Released: January 12, 2016