ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F)523/10
DATE: 20120705
B E T W E E N:
HER MAJESTY THE QUEEN
Holly Akin, for the Respondent
Respondent
- and -
THANH-HUYEN TA
Kim Schofield, for the Applicant
Applicant
HEARD: June 18 and 19, 2012
REASONS FOR JUDGMENT
Fragomeni J.
[ 1 ] The Applicant Thanh-Huyen Ta is charged with three counts; namely, production of marihuana, possession of marihuana for the purpose of trafficking and theft of electricity. The date of the offence is July 15, 2009. Ta’s trial is scheduled to take place on July 23 to July 27, 2012.
[ 2 ] The total time from the date of the charges being laid to the last day of trial is 1096 days or over 36.5 months.
[ 3 ] Ta brings this application for a stay of his charges pursuant to sections 11(b) and 24 (1) of the Charter of Rights and Freedoms. In referring to time, I will be using approximations in terms of months and weeks.
Chronology of Court Attendances
[ 4 ] The Information is sworn July 15, 2009. The matter first appears in bail court on July 16, 2009.
July 16, 2009 Ta is arranging for Legal Aid and counsel – Matter adjourned to July 20, 2009 – Ta also requires a Vietnamese interpreter.
July 20, 2009 Ta approved for Legal Aid – Ta requests a further week to arrange for counsel. Matter adjourned to July 27, 2009.
July 27, 2009 Ms. Kim Schofield appears as counsel. Ta released on bail. Matter adjourned to August 7, 2009.
August 7, 2009 Disclosure not available. Matter adjourned to August 28, 2009.
August 28, 2009 Disclosure not available. Crown suggests three to four weeks. The Crown, Mr. North, states:
MR. NORTH: There is an application returnable today in courtroom 209 to unseal search warrant materials. I’ve provided with – my friend with a consent for his consideration. If the information could go to 209 after we finish here. We are, the Crown’s office is not yet in possession of the disclosure. I suspect that this is a matter of relative complexity and so that’s why we don’t have the disclosure to date. I’m going to suggest three to four weeks.
Matter adjourned to September 25, 2009
September 25, 2009 Defence counsel advised court he is awaiting disclosure. Matter adjourned to October 9, 2009.
October 9, 2009 Disclosure not available The Crown Mr. North states:
MR. GOSH: We’re awaiting disclosure on this matter.
MR. NORTH: No, disclosure’s not available today I - - I see that Crown counsel in my office has been working on matters relating to disclosure but we are not in a position to provide that today.
MR. GOSH: Does the Crown know when it will be ready?
MR. NORTH: Going to suggest that we return in three weeks. This appears to involve a matter of some complexity and, as I said, a Crown in my office has been working on reviewing the search warrant material and properly editing what needs to be removed.
The closest return date agreed to is November 6, 2009.
November 6, 2009 Defence request to adjourn the matter to November 20, 2009.
November 20, 2009 Judicial pre-trial set for December 11, 2010.
December 11, 2009 Judicial pre-trial held – two day trial set for August 17 and 23, 2010
July 16, 2010 Ta matter in Court for confirmation. The Court is advised as follows:
Mr. GHOSH: I’m appearing pursuant to a designation. This is up today for confirmation. I’m not - - our office is not prepared to confirm today. We’re just asking for a short remand to July 30 th to confirm.
MS. COKE: And the Crown’s in a position to confirm today.
THE COURT: July 30 th defence will confirm, and Crown confirms today.
July 30, 2010 Mr. Ghosh advises the court of the following:
MR. GHOSH: For Ms. Schofield. Quite simply, an election hasn’t been made in this case. It was set down without an election with the intention of a trial. Ms. Schofield is not available on that date, on the date to do the trial. We spoke to the client and asked him whether he’d want an adjournment or a preliminary hearing. In the circumstances, he’d like to have Ms. Schofield do the trial and he wishes to have a preliminary hearing. So this was brought just – to courtesy for the court and the Crown, to let the court and Crown know that the election on that date will be a preliminary hearing.
MR. GHOSH: Well, Your Honour, the basis of it is that Ms. Schofield is not available and he wishes to have her as counsel.
Matter was adjourned to August 6, 2010 for follow-up regarding witnesses and statement of- issues.
August 6, 2010 Matter confirmed to proceed on August 17, 2010 as a preliminary hearing.
August 17, 2010 Preliminary hearing held. Crown calls their witnesses. At page 65 of the preliminary hearing transcript the Court states:
THE COURT: All right. Mr. Wilson, were you going to call any evidence?
MR. WILSON: No, Your Honour, and Mr. Ta’s not going to say anything at this point. And for the purpose of today, there’s certainly sufficient evidence to meet the Sheppard test.
THE COURT: All right. Mr. Ta, your counsel, Mr. Wilson, in my view, rightly conceded that there is sufficient evidence before me to order that you stand trial on these charges given the, the, threshold required at a preliminary inquiry. So I will order you to stand trial on these three counts. Your next court date will be in the Superior Court assignment court. Now, do we have a date for that?
Superior Court of Justice
September 3, 2010 Pre-Trial date set for September 15, 2010, on consent
September 15, 2010 Defence advises the court there is a large amount of disclosure that is still outstanding – Defence understands the Crown expects to have it by October 1, 2010. It is a substantial amount of disclosure. Matter adjourned to October, 1, 2010 to set a date for a Pre-Trial.
October 1, 2010 The following exchange is relevant on what happens next:
THE COURT: All right. Do you have some pre-trial dates? I’ve got some dates on October 12 th , I’ve got some dates November 22 nd , November 23 rd .
MS. AFONSO: The Crown is agreeable to any of the dates and we prefer the earlier ones.
MS. SALDARRIAGA: Sorry, we’re not available on those dates.
THE COURT: Not any of those dates?
MS. SALDARRIAGA: No, sorry, Your Honour.
MS. AFONSO: Is 11 (b) at issue for this file? Because that may...
THE COURT: Pardon me?
MS. AFONSO: I said – I was just inquiring whether 11(b) is at issue because I don’t want to go into December to set a judicial pre-trial if it is.
MS: SALDARRIAGA: Yes, it is at issue. What’s the first date available?
MS: AFONSO: October 12.
MS. SALDARRIAGA: October 12 th . Okay. You know what, we’ll – we’ll book October 12 th and we’ll see if we can move around the schedule then.
Pre-trial date is set for October 12, 2010
October 12, 2010 The Court notes that it does not have a pre-trial form from the defence. A second issue is identified in that defence is awaiting further disclosure. The Crown advises that the disclosure requested has already been provided with respect to another investigation related to the Ta matter. The Crown, Mr. Walsh states:
“and I don’t expect them to rely on that disclosure – we’ll - - - we’ll give them a new copy”
Pre-trial adjourned to November 15, 2010 to continue before Justice Hill.
November 15, 2010 On November 15, 2010 Justice Hill states, in part:
THE COURT: I have endorsed the indictment to indicate the pre-trial has been commenced and adjourned to November 29, 2010 at ten o’clock in the morning before me for continuation.
There was outstanding disclosure by the Crown which Ms. McKenzie has undertaken to have available for the defence prior to that return date.
THE COURT: I have no quarrel at all with the history, which I’m sure is a hundred percent accurate, Mr. Ghosh.
I should tell you that on October 12 we were unable to proceed on the judicial pretrial because no defence pretrial form had been filed.
November 29, 2010 Judicial pre-trial completed. On consent matter adjourned to December 17, 2010 to set a trial date.
December 17, 2010 Justice Durno states:
THE COURT: In terms of the dates we’re setting. If there are already 11(b) issues, or the dates we’re setting create potential issues, let me know, we will give you an early date to get the 11(b) issue determined, to address that issue so that everybody knows whether the trial is going to proceed or not proceed.
Then the following exchange takes place:
MR. WILSON: Yes, good morning, Your Honour. It’s Wilson, first initial D., appearing as counsel from Kin Schofield’s office. There’s a designation on file for Mr. Ta. This is up today to set a five to six day trial.
THE COURT: What dates are you suggesting?
MR. WILSON: I was going to request the week of October 24 th , Your Honour.
THE COURT: Agreeable to the Crown?
MR. WALSH: Sorry what was that?
THE COURT: October 24 th .
MR. WALSH: Sure.
Trial date is set for October 24, 2011. Trial readiness court is set for October 14, 2011.
October 14, 2011 The court notes the trial is ready to proceed and the accused is remanded to the October 24, 2011 sittings.
October 24, 2011 Pre-trial held. The court notes:
THE COURT: An issue has arisen with respect to a potential conflict by Ms. Schofield. Counsel are content that the matter be adjourned till Friday for the application to have counsel removed from the case, with the Crown to file by Wednesday, and Ms. Schofield is going to provide some written material from another case in the meantime and hopefully the defence can get some responding material in by mid-afternoon Thursday.
MS. SCHOFIELD: I’ll certainly try Your Honour.
THE COURT: Okay. And Justice Hill will hear the application at ten o’clock on Friday.
THE COURT: Mr. Ta is remanded to October 28 th at 10:00 a.m. for application to remove Ms. Schofield as counsel of record.
October 28, 2011 The Conflict Application was adjourned to October 31, 2011.
October 31, 2011 The Conflict Application is heard before Justice Hill in-camera – decision reserved for November 9, 2011.
November 9, 2011 Justice Hill releases his decision on the Crown application to remove Kim Schofield. The application is dismissed.
... (continues exactly as provided through paragraph [89] and the closing lines) ...
Fragomeni J.
Released: July 5, 2012
COURT FILE NO.: CRIMJ(F)523/10
DATE: 20120705
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN RESPONDENT - and – THANH-HUYEN-TA APPLICANT
REASONS FOR JUDGMENT
Fragomeni J.
Released: July 5, 2012