ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-90000627
DATE: 20120322
BETWEEN:
HER MAJESTY THE QUEEN – and – JEROME COPELAND
Peter Campbell, for the Crown
Tyler MacDonald, for the Defendant
HEARD: March 19, 2012
REASONS FOR DECISION
BENOTTO J.
[1] Mr. Copeland applies for an order staying the charges against him on the basis of unreasonable delay pursuant to section 11(b) of the Charter. Counsel have agreed that the order I make will be binding on them whether I preside over the trial or another judge does so.
[2] Mr. Copeland is charged with possession for the purpose of trafficking cocaine, possession of property ($60 and $850) knowing that it was a result of the commission of an offence. He was charged on March 22, 2010 and scheduled for trial this morning. In 2 days, it will be 24 months from the charge. This is outside the guidelines of 14-28 months set out in R. v. Askov.[^1] I am satisfied that the matter requires special scrutiny.
[3] The sequence of procedural events is:
March 22, 2010: The accused was arrested
May 14, 2010: Crown pre-trial
June 1, 2010: Preliminary hearing date set for August 19
September 29, 2010: First appearance in Superior Court
December 1, 2010: Trial date set for June 20, 2011
April 18, 2011: Trial confirmed for June 20, 2011
June 20, 21, 22, 2011: No judge available and the trial date was rebooked for February 21, 2012
June 29, 2011: Judicial Pre trial
July 7, 2011: Trial date February 21 confirmed
February 21, 2012: Section 11(b) raised for the first time, some transcripts not available and an adjournment is necessary
February 22, 2012: Trial date adjourned to March 19, 2012
Defence Position
[4] The defence alleges that the delays are attributable as follows:
DATE
PURPOSE
ASSIGNMENT
TOTAL DELAY
March 22, 2010
Arrested and charged
Inherent/Neutral
1 day
March 23, 2010
Applicant brought for bail hearing. Bail hearing not commenced.
Inherent/Neutral
2 days
March 25, 2010
Bail hearing held and detention order made.
Inherent/Neutral
14 days
April 8, 2010
First appearance since being ordered detained. Disclosure still not available.
Crown
15 days
April 23, 2010
Second appearance. No disclosure available.
Crown
7 days
April 30, 2010
Disclosure provided. Adjourned so that Crown pre-trial could be conducted.
Inherent/Neutral
18 days
May 18, 2010
Defence is prepared to set a date for the preliminary hearing. Crown requests adjournment in order to lay a new Information to join the Applicant with a co-accused.
Crown
14 days
June 1, 2010
Preliminary hearing date set of August 19, 2010.
Institutional
79 days, or 2 months and 18 days
June 8, 2010
Appearance to file Statement of Issues.
Neutral
Interim date. No effect on delay.
August 19, 2010
Preliminary hearing. Applicant committed to trial and adjourned to Superior Court.
Institutional
41 days, or 1 month and 10 days
September 29, 2010
First appearance in Superior Court. Mandatory judicial pre-trial scheduled.
Institutional
63 days, or 2 months and 2 days
December 1, 2010
Judicial pre-trial. Trial set to begin June 20, 2011.
Institutional
201 days, or 6 months and 19 days
April 18, 2011
Trial confirmation date. Trial readiness confirmed.
Neutral
Interim date. No effect on delay.
June 20, 2011
Trial date. No judge is available.
Institutional
1 day
June 21, 2011
Trial date. No judge is available.
Institutional
1 day
June 22, 2011
No judge is available. New trial date of February 20, 2012 secured. Interim dates set to address potential resolution.
Institutional
244 days, or 7 months and 30 days
June 29, 2011
Interim date to address potential resolution. Adjourned to further interim date.
Neutral.
Interim date. No effect on delay.
July 7, 2011
Interim date to address potential resolution. New trial date put on record and adjourned to trial date.
Neutral.
Interim date. No effect on delay.
February 21, 2012
Trial set to begin.
[5] The accused submits that the total delay of 23 months should be attributed as follows:
Intake/Neutral: 35 days
Crown Delay: 36 days
Institutional: 630 days, or approximately 21 months
Defence Delay: Zero
[6] Counsel relies primarily on the delay in the Superior Court from the first appearance of September 29, 2010 to today.
[7] The prejudice alleged is outlined in the Mr. Copeland’s affidavit on which he was cross-examined. The accused consented to his detention until September 28, 2010 when the Crown consented to his release from custody. He was in custody for 6 months. Upon his release, he was subject to strict house arrest. He could not work, missed the funerals of family members and friends. He did not apply for a variation of his terms of bail, nor did he advise the Crown of the difficulty he was having with these restrictions. He is under extreme stress.
Crown Position
[8] The Crown does not agree with the attribution of the various periods of delay.
[9] The Crown alleges that the attribution of the delays are as follows:
Period
Inherent Requirements
Institutional Delay
Accused’s Actions
March 23 – March 25, 2010 Accused in Bail Court, detention ordered on consent
3 days
March 25 - April 8, 2010 Adjourned to first set date appearance
14 days
April 8, 2010 - April 23, 2010 Vetting of disclosure by Crown not yet complete
15 days
April 23, 2010 - April 30, 2010
7 days
April 30, 2010 – May 18, 2010 Disclosure provided, adjourned for a pre-trial, which is held on May 14 th , 2010
18 days
May 18 – June 1, 2010 Crown investigates the possibility of laying a joint Information with the applicant and Ruth Dagg, who was also charged in relation to the same drug investigation. Despite saying that defence is ready to set a date, no statement of issues and witnesses is filed until June 8, 2010.
12 days
June 1 – June 8, 2010 Preliminary inquiry date set; adjourned for defence to file statement of issues and witnesses, as required by section 536.3 of the Code
7 days
June 8 – August 19, 2010 Statement of witnesses and issues filed. Adjourned to preliminary inquiry.
30 days (For preparation, etc.)
42 days
August 19 - September 29, 2010 Committed to stand trial; adjourned to assignment court. Indictment drafted and preferred in the interim.
41 days
September 28, 2010 Bail review; released on consent before the Honourable Madam Justice McWatt. No effect on delay.
No effect on delay
September 29, 2010 - December 1, 2010. Adjourned to judicial pre-trial date. Pre-trial forms completed in the interim by both parties. Earliest date offered to any accused in assignment court that day was November 17th.
31 days
32 days
December 1, 2010 - April 18, 2011 Trial date of June 20, 2011 selected. No indication on the record that defence is available any earlier; supplemental affidavit says counsel ready as of the week of January 3rd, 2011. First juridical day of 2011 is January 4th.
34 days from December 1-January 4th
104 days
April 18, 2018 - May 16, 2011 Trial readiness
27 days
May 16, 2011 - June 20, 2011 Erroneous endorsement, defence does not appear
34 days
June 20, 2011 - June 21, 2011 No judge available on trial date
1 day
June 21 - June 22, 2011 No judge available on trial date
1 day
June 22 - June 29, 2011 No judge available on trial date; new trial date of February 21, 2012 is selected
244 days from June 22 - Feb. 21
June 29, 2011 - July 7, 2011 Additional judicial pre-trial
No effect on delay
July 7, 2011 - February 21, 2012
No effect on delay
February 21, 2012 - February 22, 2012 Crown and Court are ready to proceed with the trial; 11(b) application incomplete.
1 day
February 22, 2012 - March 19, 2012 Crown and Court are ready to proceed with the trial; 11(b) application deficient.
26 days
TOTAL TIME = two years, less four days
212 days, 7 month
485 days, 16 months
27 days
On this analysis, 27 days is attributable to the defence, no time to the Crown and the rest to inherent or institutional delay.
Analysis
[10] The reasonableness of delay is assessed by examining the following factors:
(i) the length of the delay;
(ii) any waiver of time periods by the defence;
(iii) the explanation for the delay; and
(iv) prejudice to the accused and the interests that Section 11(b) seeks to protect.
To assess whether a s. 11(b) violation has occurred, the court must balance these factors, and no one factor is determinative.
Length of the Delay
[11] The guidelines set by the Supreme Court of Canada[^2] held that the Constitutional outside limits for reasonable delay are eight to ten months in Provincial Court, and a period of six to eight months at the Superior Court. The defence argues that this is not a complex case and lower limits should be applied.
[12] There are three counts on the indictment and defence has estimated it to be a six day jury trial. This is not a simple, straightforward case. I do not apply the lower limit. The case is almost 6 months over the time guidelines.
Waiver
[13] There was no waiver of delay by the Applicant in this case.
Explanation for the Delay
Provincial Court
[14] The Crown provided disclosure on April 30, just over one month after the charge. The Crown pre-trial was held on May 14. This is part of the intake process and attributable to the inherent requirements of the case. I do not attribute it to the Crown.
[15] The period between April 30, 2010 and May 18, 2010 can also be characterized as inherent delay. It was a reasonable amount of time to review disclosure, assess the case, and conduct discussions to determine how to proceed. The period from the bail hearing and the first appearance in set-date court, in the circumstances of this case, can also be characterized as time inherently required for the preparation of disclosure and other activities.
[16] On June 1 the preliminary hearing was set for August 19. The court offered August 13, 18 and 19 but the accused selected the 19 th. The accused did not state when he was available earlier. As Justice Code stated, where defence counsel does not state the first available date to conduct a hearing, the time period may be divided in half, with half the time attributed to inherent delay and the other half attributed to institutional delay.[^3]
Superior Court
[17] Institutional delay begins when the parties are ready for trial but the justice system cannot accommodate them. The parties were ready for trial in June 2011 and no judge was available. As Justice Nordheimer said in R. v. Osei[^4]:
The guidelines were established to give some fairly clear direction to government as to what constitutes the outer limits of tolerable delay in the justice system. Governments have now had many years to adjust their priorities in order to ensure that the justice system received sufficient resources to match their results against these guidelines.
Clearly the time from June 2011 to February 21 is institutional delay.
[18] The court was ready to proceed on February 21 but the accused late filing of the 11(b) application necessitated a one month adjournment. This time should be attributed to the defense.
Prejudice to the Applicant
[19] The prejudice relied on by the applicant is from the fact of the charge, not the delay. It must be remembered that, despite the reverse onus at the bail hearing, the accused consented to the detention. The accused did not seek to vary the terms of the house arrest to enable him to work or to attend funerals.
[20] This is not in the category of a “very long and unreasonable delay[^5]” that would engage the principles of inferred prejudice.
Balancing the Factors
[21] The accused submits that the offence involved a small amount of cocaine and cash. The charge, however is trafficking crack cocaine, an indictable offence which is punishable by life in prison. There is a compelling reason to have this matter brought to trial.
[22] There is no doubt that the institutional delay from June 2011 to February 2012, a period of 8 months, is regrettable and unfortunate. It was not attributable to the Crown and one month is attributable to the defence. However, in the context of all the factors here, it is not so great as to outweigh society’s interest in bringing this case to trial.
[23] The application is dismissed.
Benotto J.
Released: March 22, 2012
COURT FILE NO.: CR-10-90000627
DATE: 20120322
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – JEROME COPELAND
REASONS FOR DECISION Benotto J.
Released: March 22, 2012
[^1]: [1990] S.C.J. No. 186
[^2]: R. v. Askov, ibid, R. v. Morin, 1992 SCC 89, [1992] S.C.J. No. 25 and R. v. Godin, 2009 SCC 26, [2009] 2 SCR 3
[^3]: R. v. Lahiry, 2011 ONSC 6780
[^4]: R. v. Osei, [2007] O.J. No. 768 at paras. 39-40
[^5]: R. Morin, ibid at p. 474