Her Majesty The Queen v. David Ira Johnson a.k.a. David Anthony Johnson, 2012 ONSC 2557

COURT FILE NO.: 11-63000405

DATE: 20120420

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

Respondent

– and –

David Ira Johnson a.k.a. David Anthony Johnson

Applicant

Vanita Goela, for the Crown

Tyler MacDonald, for the Defendant

HEARD: April 20, 2012

Allen J. (Orally)

REASONS FOR JUDGMENT

(Voir Dire on Stay under s. 11(b) Charter of Rights)

PROCEDURE

[1] David Ira Johnson has elected to be tried by judge and jury. Before the court are pre-trial applications as follows: an application by the accused under s. 11(b) of the Charter of Rights to stay the proceedings for delay; an application by the Crown to admit statements of the accused to persons in authority as voluntary; an application by the accused under s. 10(a) and (b) of the Charter to exclude the statements by the accused; and an application by the Crown to have a statement by a Crown witness admitted under the principled exception to hearsay.

[2] I heard the application under s. 11(b) of the Charter followed by the Crown’s application to admit the statement by the Crown witness as an exception to hearsay. I allowed the s. 11(b) application granting a stay of the proceedings. My reasons for judgment therefore consider only the s. 11(b) application.

BRIEF BACKGROUND

[3] David Ira Johnson is charged under the Immigration and Refugee Protection Act (the IRPA) that he unlawfully possessed a U.S. passport that tended to establish his identity as David Anthony Johnson; that he unlawfully used the U.S. passport to enter and remain in Canada; and that he unlawfully and knowingly made material misrepresentations when he applied for refugee status and for permanent resident status in Canada.

[4] Mr. Johnson was arrested on an immigration warrant and detained by the Canada Border Service Agency (CBSA) on June 16, 2009. Mr. Johnson attended two statutorily required detention reviews and an interview with a CBSA officer during which Mr. Johnson gave statements about his identity. Following further investigation, on August 26, 2009, Mr. Johnson was arrested on criminal charges under the IRPA. It is alleged David Ira Johnson stole the identity of David Anthony Johnson, a resident of the U.S., and used that identity to enter and remain in Canada.

APPLICATION UNDER THE CHARTER, S. 11(b)

Chronology of Events

[5] The basic chronology of events in this case is as follows:

• August 26, 2009 – the accused is arrested on criminal charges
• August 29, 2009 to September 10, 2009 – proceedings dealing with bail and detention order
• September 10, 2009 – detention order made; matter adjourned to first set date
• September 28, 2009 – first appearance, no disclosure
• October 28, 2009 – second appearance, no disclosure, both parties mistaken as to which case scheduled that day; adjourned
• November 18, 2009 – third appearance, no disclosure; adjourned
• November 25, 2009 – fourth appearance; no disclosure; adjourned
• December 4, 2009 – initial disclosure provided, incomplete
• January 15, 2010 – set date, Crown says ready for preliminary hearing but must first consult with CBSA; adjourned to January 25, 2010
• January 25, 2010 – set date, preliminary hearing date set for April 26, 2010; Crown says four hours needed
• April 26, 2010 – first preliminary hearing date; Crown does not finish; adjourned to June 28, 2010
• June 28, 2010 – second preliminary hearing date; Crown does not finish; adjourned to August 11, 2010
• July 26, 2010 – accused released from custody on bail conditions
• August 11, 2010 – third preliminary hearing date; Crown does not finish; adjourned to January 5 and 6, 2011
• January 5, 2011 – fourth preliminary hearing date; adjourned to January 6, 2011; Crown to provide further disclosure
• January 6, 2011 – fifth preliminary hearing date; adjourned to March 10; Crown to provide further disclosure
• March 10, 2011 – sixth preliminary hearing date; defence concedes committal; committed to trial; remanded to April 27, 2011 Superior Court
• April 27, 2011 – first appearance at Superior Court; June 15, 2011 date set for JPT
• June 15, 2011 – first JPT, continued to June 29, 2011 for Crown to amend indictment
• June 29, 2011 – second JPT; trial date set for April 16, 2012 for three weeks
• January 4, 2012 – trial readiness appearance regarding the s. 11(b) application; interim dates set to determine status of 11(b) application: February, 15, 21, 28 and March 12

The Test for Unreasonable Delay

[6] Section 11(b) of the Charter provides that a person charged with an offence has the right to be tried within a reasonable time. It is the right to security of the person that is protected by s. 11(b). This protection is directed at minimizing the anxiety and stigma attached to involvement with the criminal justice system and the disruption in a person’s life that is a consequence of an unresolved criminal matter. [R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.J. No. 25, para. 28 (S.C.C.); R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.J. No. 106, para. 43, (S.C.C.)].

[7] The court is required to consider the following four factors in determining whether a delay is unreasonable:

(a) the length of the delay;

(b) any waiver of time periods by the defence;

(c) the explanation for the delay; and

(d) prejudice to the accused and the interests that s. 11(b) seeks to protect.

[8] Reasonable delay is not to be arrived at through a mechanical mathematical formula but through a balancing of the interests s. 11(b) is designed to protect. Delay is calculated from the point at which a person is charged to the end of the trial. The Supreme Court of Canada in R. v. Askov and R. v. Morin, as affirmed in R. v. Godin, has set constitutionally mandated outside limits for reasonable delay, being eight to ten months in Provincial Court and six to eight months in Superior Court ― a total of 14 to 18 months from arrest to trial. [R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R3 (S.C.C.)].

[9] Once findings are made on each of the four factors, an analysis must finally be undertaken to balance the societal interest in a trial on the merits.

Application of the Test

Length of the Delay

[10] The delay from arrest on August 26, 2009 to trial on April 16, 2012 is 32 months. The Crown’s position is that in the circumstances of this case, a delay of that length is not unreasonable. The delay falls 14 to 18 months outside the guidelines set by the Supreme Court of Canada in R. v. Askov and R. v. Morin. It is not disputed that this delay warrants inquiry into its reasonableness.

[11] On a s. 11(b) application, the defence has the burden to establish on a balance of probabilities the delay was not reasonable. The Crown has the obligation to bring an accused to trial within a reasonable time and to ensure that facilities and staff are available. The Crown must establish that any excess delay is reasonable. It is incumbent on the Crown to show that the delay was justified. [R. v. Askov, paras. 61 and 103].

Waiver of Time Periods

[12] There is no evidence or allegation of waiver of any periods of time by the defence.

Reasons for Periods of Delay

Inherent Time Requirements of the Case

[13] Mr. Johnson was arrested and detained under an immigration warrant on June 16, 2009. An investigation into his identity and immigration status ensued thereafter which led to his arrest on August 26, 2009 on criminal charges. Defence counsel cites delay in providing disclosure as a main cause of delay in this case. Initial disclosure was provided on December 4, 2009, three months and eight days after Mr. Johnson’s arrest.

[14] Before Mr. Johnson’s initial arrest by immigration authorities on June 16, 2009 and thereafter until and following his arrest on criminal charges on August 26, 2009, immigration criminal investigators generated evidence relevant to the criminal charges. It is the defence’s position that the evidence obtained from June 16, 2009 and onwards could have been disclosed much earlier than December 4, 2009. It follows in the defence’s argument that late disclosure resulted in the preliminary inquiry date not being set until January 25, 2010 and consequently resulted in a delayed date for the preliminary inquiry. The delay according to the defence should be attributed to the Crown.

[15] Courts have found that two months and more is a period of inherent or neutral intake delay necessary for Crown counsel to prepare disclosure. This allows time for a Crown counsel to be assigned to the case and for disclosure to be acquired and vetted and for the accused to retain counsel. Two months has been found not to be unreasonable in simple summary conviction drinking and driving cases. [R. v. Morin, supra, at 16 -17 and 25-26 and R. v. Meisner (2003), 57 W.C.B. (2d) 477, at paras. 30-32, (Ont. S.C.J.)]. However, in more complex cases such as those involving spousal and sexual assault and complex cases with multiple accused and allegations of police corruption, seven months in the first case and 11 months in the second, has been found to be a reasonable neutral intake period. [See R. v. G. (C.R.) (2005), 2005 CanLII 32192 (ON CA), 206 C.C.C. (3d) 262 at pp. 265 and 270 (Ont. C.A.) and R. v. Schertzer, et al (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 77-78 (Ont. C.A.)]. What is considered reasonable for the neutral intake period can vary depending on the complexity of the case.

[16] Code, J. of this court recently commented:

The first period was from December 29, 2009 to March 3, 2010 during which the parties retained counsel, prepared disclosure, reviewed disclosure, met with the client, obtained instructions, conducted a pre-trial resolution meeting, and then appeared in court and stated on the record that they were now “ready to set a trial date”. These activities are all necessary and beneficial, at the beginning of any case. They are referred to as “the neutral intake period” in the case law and they can vary in length, depending on the complexity of the case.

[R. v. Lahiry, 2011 ONSC, 6780, para. 19, (Ont. S.C.J.)].

[17] Crown counsel submits the three month, eight day period from arrest to initial disclosure, with the added one month and 19 days for the Crown pre-trial and to set a date for the preliminary inquiry, a total of five months, should be considered a neutral intake period and not be attributed to Crown delay.

[18] There were four appearances before the court after the bail show cause hearing on September 10, 2009 where no disclosure was given. On the November 18, 2009 date, the Crown did not have its disclosure brief available because of a mix up as to the accused before the court on that appearance. The matter had to be adjourned to November 25th. On the fourth appearance on November 25th, Crown counsel indicated she had been assigned to the case and had the disclosure but she had not vetted it. Some disclosure was provided on December 4th.

[19] I find allowing two months as neutral inherent delay would not be appropriate in the circumstances. This is not a simple summary conviction drinking and driving case. Nor do I find attributing five months to neutral delay to be appropriate. I find that disclosure could reasonably have been provided earlier. Much of the information from the immigration and CBSA authorities which forms the bulk of disclosure in this case, would have been reasonably generated months before Mr. Johnson’s initial arrest on June 16, 2009 and reasonably available to Crown counsel before December 4th. Mr. Johnson’s arrest on the criminal charges in August 2009 was based on an investigation started months earlier.

[20] I find four months should be attributed to neutral intake delay. In coming to this conclusion, I accept this is not a routine criminal matter. It is proceeding by way of indictment under immigration legislation, at that time on seven charges, against one accused and involves regulatory and criminal processes. I note however that some of the charges were made under common provisions of the IRPA. In all the circumstances I find allowing four months neutral intake time to be reasonable.

Actions of the Accused

[21] There is no evidence or allegation that any action by the defence is responsible for any of the delay.

Actions of the Crown

Time at the Preliminary Inquiry

[22] The major delay in this case is the delay involved in completing the preliminary inquiry. On January 25, 2010, Crown counsel estimated the time for the preliminary inquiry would be about four hours. The preliminary inquiry took well in excess of four hours and in fact consisted of six sittings that spanned over ten months ― April 26, 2010, June 28, 2010, August 11, 2010, January 5, 2012, January 6, 2012 and March 10, 2012.

[23] The circumstances of each attendance at the preliminary inquiry warrant some scrutiny.

[24] On April 26, 2010, the first day of the inquiry, Crown counsel withdrew a charge and Mr. Johnson was arraigned on six of his original seven charges.

[25] The examination-in-chief and cross-examination of the Crown’s first witness, CBSA enforcement Officer, Thomas Clipsham, was completed. The examination-in-chief of the Crown’s main witness CBSA criminal investigator Officer Nicolas was started and stopped for a period of time on that day for the presiding judge to attend to another matter. Officer Nicolas’ examination-in-chief resumed in the afternoon but was not completed that day. The inquiry was set to return for a full day on June 28, 2010.

[26] On June 28, 2010, there appears to have been an administrative mix up with respect to the room scheduled for the inquiry and as to whether Mr. Johnson would participate by video feed. Mr. Johnson was therefore not in attendance in the morning. There was a delay in proceeding until the afternoon when he was brought before the court. The examination-in-chief of Officer Nicolas was resumed for one half day. The inquiry was set to resume on August 11, 2010.

[27] On August 11, 2010, the examination-in-chief of Officer Nicolas continued and was completed. The defence began its cross-examination of Officer Nicolas but did not complete it by the end of that day. Return dates of January 5 and 6, 2011 were set.

[28] On January 5, 2011, the cross-examination of Officer Nicolas was completed. The examination-in-chief and cross-examination of Immigration Hearings Officer Edith Decaire were completed and the examination-in-chief of CBSA criminal investigator Officer Vieyra was started.

[29] On January 6, 2011, the evidence of Officer Vieyra was completed as was the evidence of Officer Raymond Morrell, a CBSA criminal investigator. All evidence on the preliminary inquiry was completed on this day. A return date of March 10, 2011 was scheduled.

[30] On March 10, 2011, the defence conceded committal to trial and a remand date before Superior Court was set for April 27, 2011.

[31] In sum, the examination-in-chief of the Crown’s main witness Officer Nicolas took a full day and two half days to complete. Eleven exhibits previously undisclosed to the defence were filed during his testimony. Crown counsel indicated she had no previous knowledge of those documents. Defence counsel was not able to cross-examine Officer Nicolas until the afternoon of the third sitting on August 11, 2010, which cross-examination finished on the morning of the fourth sitting on January 5, 2011.

[32] Immigration Hearings Officer Decaire testified on the afternoon of January 5, 2011 and brought with her a file of materials pertaining to immigration enforcement. Crown counsel indicated she was not previously aware of that file and the documents it contained. The last of the Crown’s witnesses testified on January 6, 2011. In total 25 exhibits were filed and five witnesses testified at the preliminary inquiry. On both January 5th and 6th Crown counsel gave an undertaking to provide the previously undisclosed documents.

[33] For reasons that follow, I do not find that the Crown established a reasonable justification for the delay in completing the preliminary inquiry.

[34] While Crown counsel conceded no delay is attributable to the defence, she nonetheless argued that the matter might have moved on to set a trial date earlier if the defence had conceded committal sooner. Defence counsel makes the reasonable submission that he was still awaiting disclosure between January 6th and March 10th and was therefore not in a position to concede committal before March 10, 2011 because disclosure was ongoing between January and March.

[35] Crown counsel also contends that the preliminary inquiry was more complex than the routine proceeding and some delay was justified because the case involved regulatory and criminal processes. Beyond that basic assertion, I do not find that Crown counsel has provided any persuasive evidence from the preliminary inquiry of any complexity caused by the involvement of the two processes. It is not at all clear why, having consulted with the CBSA officials just before the preliminary inquiry was scheduled, Crown counsel would not have been able to give a more reasonable time estimate.

[36] Crown counsel submits the period from the first day of the preliminary inquiry on April 26, 2010 until committal for trial on March 10, 2011 should be treated as substantially inherent delay. Crown counsel’s position is that the bulk of the delay in completing the preliminary inquiry was an inherent part of the process to allow the necessary time for fulsome disclosure. Crown counsel cites the Ontario Court of Appeal decision in R. v. Allen in which the court speaks of the need to consider as inherent time requirements the time necessary to get a case into the system and complete it. The court refers to adjournments required as a result of the need to find additional court time if initial time estimates prove inadequate. [R. v. Allen, 1996 CanLII 4011 (ON CA), [1996] O.J. No. 3175, para. 27(Ont. C.A.)].

[37] I find that the circumstances before the court in R. v. Allen are distinguishable from the case before me. The Court of Appeal held that it would be an extraordinary circumstance that would lead to the time estimate being substantially off the actual time needed for a proceeding.

The Court of Appeal was addressing a situation in which an additional five week adjournment for trial was needed. This arose in circumstances where defence counsel was patently unreasonable in providing dates for the re-commencement through demanding the trial be scheduled on an uninterrupted basis. Defence counsel also brought ultimately unsuccessful motions before the Court of Appeal seeking an order for uninterrupted dates which caused further delay. This put the Crown in an untenable position in attempting to obtain earlier dates.

[38] As distinct from the situation before me, the requirement for additional time in R. v. Allen was beyond the control of the Crown. I do not think that is so clear in this case.

[39] While Crown counsel concedes that no delay should be attributed to the defence, she asserts the defence acquiesced to the additional time required for the preliminary inquiry. Crown counsel points out that defence counsel’s first comment about delay came only at the judicial pre-trial at the Superior Court in June 2011.

[40] That is, at the start of the first attendance on April 26, 2010, Crown counsel advised the court that four hours for the preliminary hearing was an underestimation. There was no new estimation of duration offered. There was no comment from defence counsel about this. On that date, Crown counsel referred to two witnesses she would be calling, first Officer Clipsham and then Officer Nicolas. Crown counsel estimated at the end of the June 28, 2010 date that the Crown would complete her evidence and submissions on the next sitting on August 11, 2010. However, Officer Nicolas’ evidence was not completed until January 5, 2011. The last of the witnesses’ evidence was heard on January 5th and 6th with no comment about delay from defence counsel.

[41] I find defence counsel’s apparent acquiescence is really of no consequence to the delay. While the defence does not appear to have disputed the increasing delay, that is a neutral factor. That is, Crown counsel was in control of which witnesses would be called and the scheduling of their testimonies.

[42] There are a two half days attributable to institutional delay during the preliminary inquiry appearances due on one occasion to the presiding judge’s unavailability and due on the other occasion to the confusion over whether Mr. Johnson would attend by video feed.

[43] I find it is not evident from the transcripts that from the start of the preliminary inquiry, Crown counsel was not expecting to call the witnesses she called. Witnesses were available to take the stand immediately upon the completion of the previous witness’ testimony. Some of the witnesses came with considerable disclosure materials relating to the immigration enforcement and criminal investigations that had been generated by 2009. In other words, it is not apparent from the transcripts that more dates were required because witnesses were being discovered as the preliminary inquiry progressed.

[44] The defence submits a substantial part of the delay in completing the preliminary inquiry is due to the Crown’s failure to give timely disclosure and to its grossly inaccurate estimation of the time. Defence counsel concedes he did not challenge the four hour estimation but makes an argument I accept as reasonable that only Crown counsel would know what a reasonable estimation should have been based on her familiarity with the case.

[45] Initial and incomplete disclosure was given on December 4, 2009. As the preliminary inquiry proceeded, various witnesses testified, and further disclosure was generated, the inquiry inevitably expanded far beyond the four hour estimation. Sometimes it is unavoidable that as a proceeding moves along extra time is unexpectedly required. However, I do not think that was the case here.

[46] A Crown pre-trial was held on January 11, 2010 where it is expected that witnesses for the preliminary inquiry and disclosure would be discussed. On January 15th, the date originally scheduled to set the preliminary inquiry, the assigned Crown counsel passed a message through Crown counsel attending on January 15th that she was in the process of conferring with CBSA authorities and requested an extra week to facilitate those communications before speaking to a date for the preliminary inquiry. The set date was delayed until January 25th. On January 25th the Crown estimated four hours would be needed for the preliminary inquiry. While it is not reasonable to expect Crown counsel to have made an exact estimation of the time, it is hard to understand, after consulting with CBSA authorities about their investigation, how her estimation of time could be so far off the actual time required.

[47] Central to the Crown’s obligation to bring a matter to trial in a timely manner is full and timely disclosure. Disclosure is a continuing and positive obligation that extends from arrest through the preliminary inquiry and beyond so in the normal course disclosure is given at a preliminary inquiry. But more complete and timely disclosure before the preliminary inquiry provides a basis to more rationally set the time and witnesses needed for the inquiry leading to a more efficient use of court resources. Many fruits of the 2009 investigation by the immigration enforcement and criminal investigation officers were disclosed for the first time at the preliminary inquiry. Crown counsel indicated she had no previous knowledge of the documents.

[48] In the circumstances, I accept defence counsel’s position that more fulsome disclosure at an earlier stage would have allowed a more reasonable estimation of the time. Further disclosure between initial disclosure on December 4, 2009 and the January 25, 2010 set date would have assisted with assessing the number of witnesses and the time estimate. This would have permitted dates to be scheduled up front that would have abridged the time required to complete the inquiry.

[49] I agree with defence counsel that combined with the delay attributable to the Crown is institutional delay. Institutional delay creeps in when the number of days expands since the accessibility of the presiding judge and the availability of court resources have to be considered when re-scheduling a proceeding. It is difficult in this case to separate institutional delay from Crown delay.

[50] Taking into account four months’ inherent intake delay, the Crown/institutional delay from arrest until committal is 14 months and 12 days. This falls outside the applicable guideline of eight to ten months. As it stands I find Crown counsel has not provided a reasonable justification for the delay in completing the preliminary inquiry.

[51] I find the concern expressed by this court in a case where delay was substantially attributable to the Crown is appropriate here:

As it seems to me, delay that is actually caused by the Crown is a matter of particular concern. We tolerate a degree of institutional delay because it is unavoidable… I also feel compelled to mention again that delay caused by the Crown is particularly troubling in a jurisdiction where everyone is well aware that the system is overburdened and that unnecessary delays must be avoided whenever possible.

[R. v. Yun, [2005] O.J. No. 1584, at para. 42, (Ont. S.C.J.)].

Time in Superior Court

[52] Mr. Johnson was committed to trial on March 10, 2011. On that date the earliest available time to set a date for a judicial pre-trial was April 27, 2011. On April 27, 2011, the earliest date for a judicial pre-trial was June 15, 2011. The pre-trial was continued on June 29, 2011 for Crown counsel to provide a revised indictment and to set a date for trial.

[53] The total time from the date trial was scheduled on at the June 29, 2011 to the April 16, 2012 trial date is nine months and 21 days. This falls outside the applicable guideline of six to eight months.

[54] Defence counsel submits that one month of delay during this period in scheduling the trial is attributable to the Crown. On June 29, 2011, trial dates were available in March 2012. Crown counsel indicated she was not available in March 2012. Crown counsel submitted without evidentiary support that she had contacted defence counsel by letter in October 2011 indicating her schedule had cleared and she was now available in March 2012. No such letter was presented to the court. In any event, there is no evidence that by October there would have been any available dates earlier than April 2012.

[55] Crown counsel submitted defence counsel did not put his earliest available date on the record at the June 29th set date.

[56] At the hearing of this application, defence counsel provided evidence, which I accept, of his availability. He filed an affidavit from a student at his law firm who reviewed defence counsel’s calendar and provided his earliest availability at the time of the April 27th set date appearance for a judicial pre-trial and his earliest availability for trial at the time of the June 29th set date appearance.

[57] The affidavit attests to the fact that while the first judicial pre-trial was scheduled for June 15, 2011, defence counsel would have been available for a judicial pre-trial on April 27, 2011 or the following day.

[58] Regarding defence counsel’s availability for trial, the affidavit attests to the fact that at the time of the June 29th appearance, defence counsel was available for a three week trial from the week of August 8, 2011.

[59] I find that the delay in the Superior Court is attributable to both institutional delay and Crown delay, the month from March to April 2012, being attributable to the Crown.

Conclusion on Reasonableness of Delay

[60] Deducting the four months’ inherent intake delay, from the total Crown/institutional delay of 32 months, the delay is 28 months. Acceptable delay from arrest to the completion of trial is 14 to 18 months. The delay in this case, taking into account the overall delay at the Ontario Court of Justice and the Superior Court, considerably exceeds the acceptable guidelines. Crown counsel has not succeeded in providing a reasonable justification for the delay. I find therefore the delay is unreasonable.

Prejudice

[61] The Supreme Court of Canada in R. v. Morin commented on the protection s. 11(b) of the Charter. It grants protection from the infringement on a person’s right to liberty, security of the person, and the ability to make full answer and defence, rights that can be affected by delays in concluding a trial. Prejudice can be inferred from lengthy delay. Delay can be reduced or increased by the presence or absence of delay. [R. v. Morin, supra, at para. 61]. The more prolonged the delay the more likely the inference will be drawn. As R. v. Askov held:

There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time.

[R. v. Askov, supra, at para. 69].

[62] The factors recognized as the adverse effects of prolonged delay are well known. Memories can fade with the passage of time. Restraints on liberty rights and security of the person are a reality for persons denied bail or faced with restrictive bail conditions. While a person awaiting trial is presumed innocent, the circumstances of their lives while awaiting final disposition may not make the presumption appear to be a reality.

[W]hen trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of the evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

[R. v. Morin, at para. 86].

[63] I find in this case based on the extent to which the delay is outside the applicable guidelines, that prejudice can be inferred.

[64] There is also evidence of actual prejudice to Mr. Johnson that can be gathered from the record. By way of context, Mr. Johnson was first arrested and detained on an immigration warrant on June 16, 2009. On August 26, 2009 he was arrested and detained on the current criminal charges. He spent almost a year in detention before he was released on July 26, 2010 subject to bail conditions.

[65] Mr. Johnson has lived under a curfew since his release. From his release until March 10, 2011, he had a curfew from 9 p.m. to 6 a.m. and on March 10th the conditions were slightly amended to a curfew from 11 p.m. to 6 a.m. For the two year and eight month period from his arrest on the criminal charges until now his liberty and security have been restricted.

[66] Mr. Johnson also faces immigration proceedings which are on hold until the disposition of the criminal matter. In those proceedings he faces a real risk of deportation from Canada. As I understand it, he is currently under immigration bail. He has no status in Canada and is restricted from being employed. His life is therefore on hold.

[67] Crown counsel submitted Mr. Johnson is benefitting from the delay since he is doing exactly what he wants ― he is getting to remain in Canada and to continue to build his life here. As defence counsel remarked, that is a rather cynical perspective on Mr. Johnson’s life. I am sure the situation of his life under a curfew for almost three years, when he is unable to work, are not conditions he relishes.

[68] In the circumstances, I find Mr. Johnson is presumed to be prejudiced by the prolonged delay in getting to trial. There is also persuasive evidence of actual prejudice resulting from the conditions of his life.

[69] Defence counsel advanced a further argument in support of actual prejudice. The argument centers on the effect of the delay on Mr. Johnson’s right to make full answer and defence. David Anthony Johnson, the person whose identity David Ira Johnson is alleged to have stolen, died in October 2011. As part of their criminal investigation, CBSA authorities went to the U.S. to interview David Anthony Johnson on April 15, 2011 at the Canadian Embassy in Washington D.C. The interview was videotaped and the interview proceeded under David Anthony Johnson’s affirmation to tell the truth. The CBSA interviewer, Officer Nicolas, asked him if he would be willing to assist with the prosecution of David Ira Johnson by testifying by video feed from the U.S. to David Ira Johnson’s trial. David Anthony Johnson agreed to do this. A DVD and transcript of the interview are part of Crown disclosure for trial.

[70] Prejudice to the accused must be found to be the result of or to have arisen from the delay. The defence argues that Mr. Johnson was prejudiced by the death of David Anthony Johnson in that he lost the right to make full answer and defence. That is, David Ira Johnson has been denied the right to cross-examine David Anthony Johnson and challenge his credibility on the video recorded statement he made to CBSA authorities. The defence says the passage of time has caused the loss of potentially critical evidence.

[71] I find this argument has only superficial appeal. It is founded on the proposition that were the case to have moved to trial more promptly, David Anthony Johnson would have been available for trial.

[72] The problem with that argument is there are too many variables in play rendering the basis of the proposition speculative. For instance, we can only speculate about if and when earlier dates might have been available if the delay had not occurred. David Anthony Johnson died in October 2011. We do not know if court dates would have been available before that date since we have no knowledge of the court schedule at that time. We do not know the parties’ availabilities. Indeed, we do not know David Anthony Johnson’s availability before the date of his death. He died with a diagnosis of an auto immune deficiency disease. The status of his health before his death and whether and for how long he might have been incapacitated before he died is unknown to us.

[73] It is fanciful to assert a connection between the delay and David Anthony Johnson’s unavailability for trial. The notion that there is a causal connection between the delay, the death, and David Ira Johnson’s right to make full answer and defence is illusory. The general concern with the effect of delay on the right to make full answer and defence may not be lost as a source of prejudice in this case. It might apply in ways I am not aware of. I find it just does not apply to the death of David Anthony Johnson.

Balancing of Interests

[74] Where there is little or no prejudice to an accused the interest of bringing a person charged with criminal offences to trial outweighs the accused’s and society’s interest in obtaining a stay of proceedings. However, where there is clear prejudice to the accused that cannot be otherwise redressed, the balance may tip in favour of the accused and just may require a stay. [R. v. Morin, supra, at para. 9].

[75] It is a question of fact as to whether prejudice is adequate to outweigh the public interest in bringing a person charged with criminal offences to trial. I have found prejudice can be inferred from the unreasonable length of the delay. I have also found actual prejudice owing to the significant restrictions on Mr. Johnson’s life for almost three years while awaiting the disposition of the criminal trial. This weighs in favour of a stay.

[76] Another factor weighing in favour of a stay is the fact that an appreciation of his jeopardy in the immigration process, where he faces possible deportation, has been forestalled due to the lengthy delay in the criminal proceedings.

[77] The seriousness of the offences is another factor to consider. My comments on that factor should not be interpreted as condoning the offences with which Mr. Johnson is charged. Stealing another person’s identity, residing in Canada and travelling across an international border with false identification and making false representations to government authorities are not offences to be shrugged off as inconsequential. However, there are crimes of a more serious nature like homicide and other crimes of violence in which society may have a greater interest in having those types of crimes tried on the merits.

[78] Also weighing in favour of a stay is the fact that a stay does not end Mr. Johnson’s involvement with the justice system. He still has to face the scrutiny of and a possible sanction by the immigration enforcement system.

[79] I find in the circumstances of this case the balance tips in favour of a stay of the trial.

CONCLUSION

[80] For all the reasons cited, I allow the application to stay the trial pursuant to s. 11(b) and s. 24(1) of the Charter of Rights.

Allen J.

Released: April 20, 2012