COURT FILE AND PARTIES

COURT FILE NO.: 0172110J
DATE: 20120103
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Cosmo James

BEFORE: Justice E. P. Belobaba

COUNSEL: Chris Leafloor for the Crown

Edward Royle for the Accused

HEARD: December 13 and 14, 2011

ENDORSEMENT GRANTING THE 11(b) APPLICATION

[ 1 ] Cosmo James is charged with possession of cocaine for the purpose of trafficking, possession of heroin and dangerous driving. The Crown alleges that on July 23, 2008 Mr. James was involved in a motor vehicle collision and then left his car and fled the scene on foot. When the vehicle was searched, police found some crack cocaine and heroin in the centre console. The charges were laid a week later on July 31, 2008.

[ 2 ] The only issue for trial is identification: whether the driver who fled the accident scene is the accused. The trial was therefore expected to be fairly short– two to three days judge-alone, four days with a jury.

[ 3 ] Defence counsel has pressed throughout for an early trial date. However, it has taken almost three and a half years to get the matter to trial. The overall delay from date of charge (July 31, 2008) to date of trial in Superior Court (December 13, 2011) was 40½ months. Most of the delay occurred in Superior Court. The trial had to be adjourned four times because no judge or court room was available. It took more than a year and a half to proceed from committal to trial - almost 16 months of which were attributable to institutional delay.

[ 4 ] Defence counsel brought a pre-trial application under s. 11(b) of the Charter of Rights arguing that his client’s constitutional right to be tried within a reasonable time has been infringed. I agreed with this submission. At the conclusion of the 11(b) hearing, I advised counsel that the application would be granted and the charges would be stayed, with written reasons to follow.

[ 5 ] These are my reasons.

Analysis

(1) The applicable law

[ 6 ] Section 11(b) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried “within a reasonable time.”

[ 7 ] The primary purpose of s. 11(b) is the protection of the individual rights of accused, specifically the right to security of the person, the right to liberty, and the right to a fair trial. [1] Section 11(b) also seeks to protect two societal rights. It protects the public's interest in having the laws enforced by having those who break the law tried quickly because promptly held trials increase public confidence and it seeks to protect the public's interest in having those accused of crime dealt with fairly. [2]

[ 8 ] To determine whether s. 11 (b) has been infringed, a judge must balance the interests which the section is designed to protect against factors which caused the delay. The relevant time period is from the date of the charge to the end of the trial. The key question to be answered is: at what point does the delay become unreasonable? The factors to be considered are: (1) the length of the overall delay; (2) any waiver by defence; (3) the reasons for the delay, including the inherent time requirements of the case, the actions of the accused, the actions of the Crown and the limits on institutional resources and (4) prejudice to the accused. [3]

[ 9 ] The Supreme Court of Canada has concluded that the amount of institutional delay [4] that will be constitutionally tolerable is 8 to 10 months in the provincial court and 6 to 8 months in the superior court. [5] This proposition was put forward as an “administrative guideline” and not as a limitation period. [6] There is room for some leeway. To decide if the impugned delay is constitutionally unreasonable, the trial judge must examine and evaluate the length of the delay in light of the other factors and then determine whether the period of delay is unreasonable having regard to the interests that s. 11 (b) seeks to protect, the explanation for the delay and the prejudice to the accused. [7]

[ 10 ] Prejudice may be actual or inferred. In cases with lengthy delays, prejudice can be inferred from the mere passage of time. The longer the delay, the more likely that the inference will be drawn. [8] For example, in Godin , [9] the Supreme Court concluded that it was reasonable “to infer…some prejudice” in a case where “the delay exceeded the ordinary guidelines by a year or more”.

[ 11 ] In recent years, a further requirement has been added that is relevant to the analysis herein. If a trial fails to proceed – whether because of a mistrial or the unavailability of a judge or courtroom – and has to be rescheduled, the Crown is obliged to give the matter priority and take all necessary steps to have that trial expedited. [10]

(2) The extent of institutional delay

[ 12 ] This is not a case that turns on the actions of the Crown or the accused or any evidence of actual prejudice. Both sides agree that the case is mainly about the overall delay from charge to trial, the extent of the institutional delay and the amount of inferred prejudice. Attached below is a Time Chart prepared by defence counsel that details the 40½ months from charge to trial and the 18½ months from committal to trial. I have taken the liberty of adding the last entry showing the December 13, 2011 date of trial.

DATES

Details

July 23, 2008

Offence date.

July 31, 2008

Information sworn.

August 18, 2009

Arrest date.

September 11, 2009

Bail hearing. Detention order.

September 24, 2009

First Appearance following bail hearing. No disclosure provided. Matter adjourned to October 8, 2009.

October 8, 2009

Initial disclosure provided. Matter adjourned to October 28, 2009 for Judicial pre-trial.

October 28, 2009

Judicial pre-trial held. Two-day preliminary hearing scheduled for May 31, 2010. Additional disclosure provided. Interim date set for November 30, 2009.

November 30, 2009

Confirmation date for preliminary hearing. Matter adjourned to May 31, 2010.

May 31, 2010

Preliminary hearing commenced.

June 1, 2010

Preliminary hearing completed. Applicant committed to stand trial. Matter adjourned to July 29, 2010.

July 29, 2010

First appearance in Superior Court. Judicial pre-trial set for September 29, 2010. First available date.

September 29, 2010

Judicial pre-trial held. Five-day jury trial set to commence March 28, 2011. Defence counsel had earlier dates. Confirmation date set for October 25, 2010.

October 25, 2010

Trial date confirmed. No earlier dates available for trial.

March 28, 2011

Trial date schedule to commence. No judge available to hear Applicant’s case. Matter adjourned to March 29, 2011.

March 29, 2011

No judge available to hear Applicant’s case. Matter adjourned to March 30, 2011.

March 30, 2011

No judge available to hear Applicant’ case. Second trial date set for December 12, 2011. Defence counsel had earlier dates.

December 12, 2011

No judge available to hear Applicant’s case.

December 13, 2011

Trial begins before Justice Belobaba – 11(b) application.

[ 13 ] The contents of the Time Chart, although largely self-explanatory, require some additional comments.

[ 14 ] The one-year delay between the charges and the arrest. Mr. James was arrested a full year after the charges were laid. Crown counsel called no evidence to suggest that police made efforts to locate the accused during this one-year time period. I must therefore assume that no such efforts were made. As it turned out, Mr. James was arrested on firearm charges on August 18, 2009. [11] It appears that the police only discovered the outstanding drug and dangerous driving charges when Mr. James was arrested in 2009 on the gun charges. Defence counsel is not asking the court to focus unduly on these first 12½ months. Nonetheless, they do figure in the calculation of overall delay.

[ 15 ] The delay in the provincial court. The only item that merits discussion is the seven-month delay (from October 28, 2009 to May 30, 2010) in getting to the preliminary hearing. As already noted, this was a simple case that required at most a one to two-day preliminary hearing. Defence counsel insisted on early dates. The preliminary hearing should have proceeded within two months. The additional five months must be attributed to institutional delay. [12]

[ 16 ] Crown counsel argues that only 3½ of the 7 months, should be attributed to institutional delay. He relies on Justice Code’s decision in Lahiry [13] and submits that in a case such as this where defence counsel requested earlier dates but did not actually specify an earlier date, the fairest way to allocate this period of delay is to do what Code J. did in Lahiry : “divide it equally between neutral or inherent time requirements ... and institutional delay.” [14] Hence, only 3½ months, says the Crown, should be attributed to institutional delay.

[ 17 ] However, in Lahiry , Justice Code applied the “divide it in half” approach only where “nothing was put on the record to the effect that the accused was seeking the earliest date available or that he was prepared to proceed on an earlier date.” [15] However, where defence counsel has made it clear on the record (as he did here, repeatedly) that he was prepared to proceed on earlier dates, even if no actual date was specified, the “divide it in half” approach does not apply. Here, in my view, it is reasonable to allocate five of the seven months leading up to the preliminary hearing to institutional delay. In any event, as defence counsel readily concedes, the institutional delay at the provincial court level is well within the Supreme Court’s “8 to 10 months” guideline.

[ 18 ] The delay in the superior court. This is defence counsel’s primary focus. As shown on the Time Chart, the total passage of time from the date of committal (June 1, 2010) to the first day of trial (December 13, 2011) was 18½ months. The concern here, of course, is the portion that can be attributed to institutional delay.

[ 19 ] Here it should have taken about one month from date of committal to first appearance in the superior court, and another month until the judicial pre-trial when the first trial date was set. [16] One would then add another month to allow for trial preparation. Defence counsel argues, not unreasonably given the simplicity of this case, that he could have been ready in a matter of days, at most a week. In my view, however, a one-month allocation for trial preparation and administrative process, even for a short trial, is a sensible measure in the superior court.

[ 20 ] The total amount of institutional delay at the provincial court level was about five months and at the superior court level about 15½ months for a total of almost 21 months. This is three months beyond the Supreme Court’s guidelines if the guidelines for the provincial and superior court stages are added together.

[ 21 ] However, there is no suggestion in Morin that one should combine the delays at the two levels to determine if the amount of institutional delay in the superior court is constitutionally acceptable – that is, there is no suggestion that in the absence of any institutional delay at the provincial court level, the trial of the accused can be delayed for up to 18 months at the superior court level without breaching s. 11(b) of the Charter . The Supreme Court was clear: the amount of institutional delay that will be constitutionally tolerable in the superior court is 6 to 8 months after committal for trial. [17] Hence, defence counsel’s focus here, as already noted, is on the almost 16 months of institutional delay after Mr. James was committed for trial.

(3) The relevant factors

[ 22 ] In my view, the most significant factors in the 11(b) analysis, starting with the most important, are these:

• The amount of institutional delay after committal for trial was almost 16 months, two times longer than the 6 to 8 months set out in the Supreme Court’s guideline;

• There is no evidence of any effort on the part of the Crown to expedite the trial after the first trial date was not reached. Rather than making the applicant’s case a priority in March, 2011, Crown counsel was content to set a second trial date that was nine months away;

• The overall delay from date of charge to date of trial was 40 ½ months, almost three and a half years;

• This is a long delay that exceeded the guidelines by more than a year, and thus under Godin , can readily support a finding of inferred prejudice; [18]

• The charges against the accused are significant but not uncommon. I have no information about the basis for the dangerous driving charge. I was advised, however, that no one was injured in the motor vehicle collision. I was also advised that the quantity of drugs found in the vehicle was not large. [19] The alleged offences, to be sure, are not insignificant, but neither are they at the serious end of the criminal spectrum.

(4) Balancing the interests

[ 23 ] The 11(b) analysis requires the court to balance the interests of the accused with the interests of society in law enforcement. [20] As Justice McLachlin, as she then was, explained in Morin :

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. [21]

[ 24 ] For the reasons just stated, I am satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. When I consider the extent of overall delay, the amount of institutional delay in the superior court, the Crown’s failure to give the trial priority after it was not reached on the first scheduled date, the nature of the criminal charges, and the inferred prejudice, I am persuaded, on balance, that s. 11 (b) has indeed been breached and the charges against Mr. James must be stayed.

(5) Section 11(b) in “the imperfect world of scarce resources”

[ 25 ] It is no secret that the Superior Court in the Toronto Region can use more judges. It’s also no secret that a related reason for the growing number of trial delays is that Toronto’s criminal courthouse is simply too small. Built in 1967 for a much smaller city, the main courthouse at 361 University Avenue (now used almost exclusively for criminal trials) can no longer accommodate the criminal trial demands of the modern era. [22] Trials have to be adjourned, sometimes two or three times, until a judge and courtroom become available. As a result, trial judges are seeing more 11(b) applications .

[ 26 ] Trial judges cannot, of course, direct governments on how to spend public funds or require that an outdated courthouse be enlarged or replaced. [23] However, judges can and must uphold the law and, in particular, the Charter of Rights and the constitutional requirement that trials be held within a reasonable time, even when the political reality is one of fiscal restraint. As the Supreme Court explained:

How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11 (b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. [24]

[ 27 ] That point in time was exceeded in this case, almost two-fold. By any measure, a delay of 15 or 16 months from date of committal to trial in the superior court is well outside the limits of the Supreme Court guideline. Mr. James’ right to be tried within a reasonable time was clearly infringed.

Disposition

[ 28 ] The charges against Cosmo James are stayed.

Date : January 3, 2012 Belobaba J.

[1] R. v. Morin , (1992), 1992 89 (SCC) , 71 C.C.C. (3d) 1 (S.C.C.) at 12-13.

[2] R. v. Qureshi , 2004 40657 (ON CA) , [2004] O.J. No. 4711 ( C.A. ) at para. 9 ; R. v. MacDougall , 1998 763 (SCC) , [1998] 3 S.C.R. 45 at 496 .

[3] Ibid.

[4] Institutional delay is “the period that starts to run when the parties are ready for trial but the system cannot accommodate them”: R. v. Morin , supra note 1, at 18 and 26-7.

[5] Ibid .

[6] Morin , supra note 1, at 19 and 20; Qureshi, supra note 2 at para. 18.

[7] Morin , supra note 1, at 14.

[8] Ibid ., at 23.

[9] (2009) 2009 SCC 26 , 245 C.C.C. (3d) 271 at paras 31 , 34 and 39 (S.C.C.)

[10] R. v. Brace 2010 ONCA 689 , [2010] O.J. No. 4474 (C.A.) at paras. 14-16 . Also see case law cited in R v. Lahiry , 2011 ONSC 6780 , [2011] O.J. No. 5071 (S.C.J.) at para. 67 .

[11] Mr. James pled guilty to the gun charges and on January 21, 2011, was sentenced to 50 months. With two-for-one credit for the 17 months served in pre-sentence custody (i.e. 34 months) he was required to serve a further 16 months. He was still in custody when he attended before me on the dangerous driving and drug possession charges that are the subject of this 11(b) application. There was no suggestion that because Mr. James was incarcerated on the other, unrelated charges that s. 11 (b) should not apply to these charges.

[12] A delay in setting dates for the preliminary hearing can, in some cases, be considered institutional delay: see R v. Chatwell , [1998] O.R. No. 206 (C.A.) at para. 11.

[13] R v. Lahiry , 2011 ONSC 6780 , [2011] O.J. No. 5071 (S.C.J.)

[14] Ibid., at para. 60.

[15] Ibid., at para. 60.

[16] Given appropriate facts, the delay needed to schedule the JPT can properly be described as institutional delay, rather than as part of the inherent time requirements of the case: see R v. C.R.G. 2005 32192 (ON CA) , [2005] O.J. No. 3764 (C.A.) at para. 30 .

[17] Ibid., at para. 55.

[18] As discussed above in para. 10.

[19] About 26 grams of crack cocaine and a half-gram of heroin.

[20] Morin , supra, note 1, at pp. 12 to 13.

[21] Ibid., at pp. 29-30.

[22] Not only does a growing metropolitan area generate more crime and thus more criminal prosecutions, the trials themselves have become much longer and more complicated: see the discussion in R v. Richards , [2010] ONSC 6202 (S.C.J.) at para. 71.

[23] The most they can do, if they are Chief Justices, is to make this point repeatedly in their speeches to the public or in their meetings with government officials. See, for example, “Ontario Chief Justice Calls for a New Toronto Courthouse,” (The Toronto Star: Sept. 14, 2009).

[24] Morin , supra, note 1, at para. 48.