ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(F) 1331/11
DATE: 2012 09 13

B E T W E E N:

HER MAJESTY THE QUEEN

John North, for the Respondent

Respondent

• and -

ERNEST BOATENG

John Norris, for the Applicant

Applicant

HEARD: August 17, 2012

REASONS FOR RULING

Section 11(b) Charter Application

Seppi J.

[ 1 ] The applicant, Ernest Boateng is a 57 year old Canadian citizen. On July 24, 2010 he was charged with importing 2.38 kilograms of heroin into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act . The substance was found in a false bottom of his suitcase upon his arrival to Canada at Toronto Pearson International Airport. Mr. Boateng has been in custody since the date of his arrest. He applies for a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (“ Charter ”) alleging a breach of his section 11(b) Charter right to be tried within reasonable time.

[ 2 ] The total time between his arrest and the trial date is approximately 26 months. The applicant’s position is that this delay is unreasonable and mainly attributable to both institutional/systemic delay and the Crown. He submits the Crown failed in its duty to move the matter forward.

[ 3 ] The Crown denies this allegation and attributes the delay to the defence and/or to inherent delay. He submits the Crown made every reasonable effort to move this case forward. A significant portion of the delay occurred after Legal Aid Ontario (“LAO”) refused the applicant’s request for a change of solicitors.

Issue

[ 4 ] The issue on this application is whether the applicant’s right to a trial within a reasonable time, as guaranteed by s. 11(b) of the Charter , has been infringed by the delay in this case. The central focus is on the delay which occurred during the time period the applicant was without counsel after LAO refused his request for a change of solicitors. The question is whether this is attributable to the Crown, as institutional/systemic delay, or to neutral inherent delay reasonably required for Mr. Boateng to secure legal representation.

Chronology

[ 5 ] After his arrest the applicant was taken into custody and issued a LAO certificate. He retained counsel, Katie Scott, to represent him. He advised the court of this retainer on August 10, 2010. According to the applicant, the solicitor/client relationship between him and Ms. Scott broke down soon after the retainer. On September 17, 2010 he advised the court he had changed his lawyer and his new lawyer, John Norris, had told him to ask for a two week adjournment. The same day the Crown informed Mr. Boateng the disclosure was ready for his new lawyer to pick up at any time.

[ 6 ] The record shows the matter was adjourned about nine times between July 25, 2010 and October 1, 2010, each time at the request of the applicant while he was pursuing the Legal Aid issue. During this period Mr. Norris made numerous attempts to contact Ms. Scott, all of which went unanswered. LAO refused the applicant’s request for a change of solicitor finding there were no “exceptional circumstances” to justify the change. His subsequent appeals to LAO, made within the required timelines, were all denied.

[ 7 ] Despite the refusal of LAO Mr. Norris’ agent accepted the Crown disclosure on October 1, 2011 and the applicant consented to his continued detention. There was a Crown pretrial attended by Mr. Norris on October 28, 2011. There were court adjournments to October 19, 2010, October 29, 2010, November 18, 2010, December 2, 2010, December 14, 2010, all at the applicant’s request to address the LAO issue, and to January 31, 2011. After all available LAO appeals were exhausted the hearing of his Rowbotham application to appoint counsel was scheduled for January 28, 2011.

[ 8 ] On January 31, 2011 duty counsel on the applicant’s behalf requested the matter be adjourned to February 15, 2011 pending the decision on the Rowbotham application. On February 4, 2011 Wein J. dismissed the Rowbotham application concluding that:

(i) the applicant had failed to establish an evidentiary foundation to demonstrate on a balance of probabilities that the refusal to allow a change of counsel amounted to a denial of legal aid; and

(ii) the applicant had failed to provide an appropriate evidentiary foundation to demonstrate that he could not afford private counsel.

[ 9 ] The dismissal of the application by Justice Wein was made “subject to a re-hearing by this court provided that a notice of application for re-hearing, along with additional materials, is filed within thirty days of the release of the draft of the these reasons (on February 4, 2011).” The applicant declined this opportunity of a re-hearing and filing of further materials by letter to the court on March 7, 2011.

[ 10 ] In the meantime the applicant requested an adjournment in the Ontario Court of Justice (OCJ) to retain counsel and set the judicial pretrial date. On March 2, 2011 Mr. Boateng still without a lawyer, asked for the matter to be put over to March 9, 2011, for his “consultation with Mr. Norris”, adjourned again on March 9, 2011 to March 23, 2011.

[ 11 ] On March 23, 2011 duty counsel appeared for the applicant with a letter from Mr. Norris requesting a six week adjournment to April 27, 2011 as a Notice of Appeal of Wein J.’s decision had been filed. The appeal was later abandoned by the applicant.

[ 12 ] The record shows that while Crown counsel did not oppose the adjournment request she nevertheless expressed concern that counsel appear before a judge for case management to ascertain “the status of all these… applications, appeals, et cetera and where the matter is going and when”. At Mr. Norris’ request duty counsel asked for the matter to be put over to April 13, 2011.

[ 13 ] The matter was placed before a judge for management at the Crown’s request. On April 15, 2011 an agent for Mr. Norris appeared. She returned the disclosure previously provided to the Crown, and Cowan J. of the OCJ held an in-person judicial pretrial, following which he asked duty counsel to follow up with LAO. The matter was adjourned to April 20, 2011 for that purpose.

[ 14 ] On April 20, 2011 duty counsel advised Cowan J. that all rights of appeal with LAO had been exhausted. Options were discussed regarding Mr. Boateng’s representation for the matter to go forward. The applicant expressed uncertainty about his situation and the matter was adjourned to May 6, 2011 to give the applicant and duty counsel an opportunity to speak to Mr. Norris or another lawyer about re-filing the Rowbotham application.

[ 15 ] On May 6, 2011 duty counsel again appeared for the applicant stating the applicant had never seen his disclosure. Cowan J. directed the Crown to provide the applicant the disclosure which had been returned by Mr. Norris’ agent. Crown counsel expressed a concern about giving it to an unrepresented accused in custody. The other concern discussed at that appearance was the inability of Mr. Boateng to make an election without seeing the case against him. The matter was put over to May 12, 2011.

[ 16 ] On May 12, 2011 the applicant, still with duty counsel, indicated a desire to go to the preliminary hearing even if he did not have a lawyer. Sometime after that appearance during May 2011 he received and was given time to review the disclosure. On May 30, 2011 both duty counsel and a LAO staff lawyer attended to speak to the matter. At the suggestion of the LAO lawyer and with the applicant’s consent, the matter was adjourned to July 5, 2011 in the hope the staff lawyer might be able to take the case and that a second Rowbotham application might be advanced by private counsel.

[ 17 ] On July 5, 2011 LAO counsel, acting as duty counsel, attended to request the matter be put over to July 15, 2011 for a final input from Mr. Norris about a possible second Rowbotham application, further LAO input, and a setting of the date for a preliminary hearing.

[ 18 ] On July 15, 2011 the LAO lawyer again attended with the applicant. The preliminary hearing was scheduled for August 17, 2011. That day the LAO staff lawyer, who said he was not authorized to act for Mr. Boateng, asked Currie J. of the OCJ to appoint amicus “to assist in moving the matter forward”, which application was opposed and dismissed as no materials were filed. An agreement was reached for the Crown to produce two witnesses for discovery as long as the applicant committed to having Mr. Norris reapply for a Rowbotham order as the matter was at a new stage in the proceeding. Justice Currie, the preliminary hearing justice, termed this “a reasonable compromise”. The applicant was put to his election and consented to committal. The matter was thus adjourned to the Superior Court of Justice (SCJ) assignment court on September 2, 2011.

[ 19 ] Following that date Mr. Norris appeared on September 16, 2011 before Justice Durno of the SCJ. New materials were required for the second Rowbotham application now that the matter was at a new stage and a new level of court. On September 30, 2011 the date for the application hearing was set for October 24, 2011. It was heard by Wein J. on additional evidence. During argument there remained an issue of whether the applicant had satisfied his onus to show he had been denied Legal Aid. Ultimately, Wein J. allowed the application on November 9, 2011 finding “the factual foundation for the application [compared to the first application] has expanded.” The defence requested a remand to December 2, 2011.

[ 20 ] On December 2, 2011 an agent for defence counsel declined to set a date for the discovery because he did not have the disclosure. The Crown noted it had provided the disclosure on two prior occasions. The matter was put over to December 16 when Mr. Norris confirmed his receipt of the disclosure and acknowledged the earlier disclosures. Discovery was scheduled for and proceeded on January 6, 2012. The judicial pretrial was held on January 17, 2012. Defence counsel was not available for the April 10, 2012 trial date which was offered. The applicant waived his s. 11(b) rights from April 10, 2012 to the May 22, 2012 date, which was set for the trial.

[ 21 ] In early May 2012 Mr. Norris notified the Crown he did not have all the transcripts needed for his 11(b) application. On May 11, 2012, he requested an adjournment of the trial, which the Crown did not oppose. At the time Mr. Norris conceded this delay from May 22, 2012 to the new trial date will have been caused by the defence.

[ 22 ] A new trial date has been set for October 1, 2012.

Legal Framework

[ 23 ] A person charged with an offence has the right to be tried within a reasonable time. Section 11(b) of the Charter provides protection which encompasses the fair trial, liberty and security of the person interests of an accused. There is also an important societal interest to ensure accused persons are tried fairly and with reasonable dispatch. It has been held and affirmed that minimization of the prejudice to the accused’s interests in security and a fair trial is the main purpose of the right under s. 11(b) of the Charter to be tried within a reasonable time. [1]

[ 24 ] The accused on this application has the burden of proof on a balance of probabilities to establish an infringement of his s. 11(b) rights. The application requires the court to balance these individual and societal goals with the length and causes of the delay. In balancing the protected interests it is necessary to consider and weigh four relevant factors which include:

1. the length of the delay;

2. waiver of time periods;

3. 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 the delay; and

4. prejudice to the accused. [2]

[ 25 ] While the analysis is framed within these categories it is not based on a mathematical formula. It requires an assessment of the entire time period in light of the explanations for the constituent parts of the delay. The determination of the 11(b) application requires balancing the interests the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. What the court must determine when there is an allegation of unreasonable delay is the reasonableness of the passage of time in light of the facts and circumstances of the case. [3]

[ 26 ] As stated in R. v. Seegmiller :

The determination of what constitutes a ‘reasonable’ time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the ‘reasonableness’ of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pre-trial delay will constitute unreasonable delay for constitutional purposes. [4]

Analysis

Length of Delay

[ 27 ] The total delay in this case is 26 months which is sufficiently long to require an examination of all the factors which led to the delay.

Waiver

[ 28 ] The applicant expressly waived his s. 11(b) rights from April 10, 2012 to May 22, 2012. The overall delay is therefore shortened to just under 25 months.

Reasons for the Delay

[ 29 ] This category requires an objective analysis of each period of delay. In the case at bar this factor involves an examination of inherent time requirements required to process the case, actions of the accused and the Crown. The limitations imposed in this case by the actions and procedures followed at LAO, as an institutional resource, made an issue by the defence, also requires examination.

[ 30 ] The amount of time required to process a criminal case varies with the complexity of the case. The case at bar is not complex. Most of the investigation was completed within a short period after the charges were laid. The Crown disclosure brief was ready for the accused in about two months after the arrest. In these circumstances an intake period of 3 to 4 months in the Ontario Court of Justice, and about 3 months in the Superior Court of Justice would have been reasonable for this type of case in this jurisdiction. Delay that is due to inherent requirements of a case is considered neutral. It does not count against either the Crown or the accused.

[ 31 ] Despite this expectation of time to process the case, the intake period was significantly prolonged in the case at bar as a result of the applicant’s decision to change his choice of LAO counsel. The record shows repeated requests by the applicant for an adjournment necessitated by his failure to secure a new LAO certificate for a change of legal representation from his original choice of counsel. This includes the time necessitated for the preparation and hearing of the two Rowbotham applications. The preliminary inquiry was not scheduled until July 15, 2011 and the entire delay until then was occasioned while the applicant pursued his effort to have Mr. Norris represent him. Even then he was still without a lawyer on the date of the scheduled preliminary hearing and also when the matter was remitted to the SCJ assignment court for September 2, 2011.

[ 32 ] The applicant did not have his new counsel of record until after the success of the second Rowbotham application on November 9, 2011, effectively 15 ½ months after his arrest. In all the circumstances it is a fair conclusion that until then he was not in a position to properly commence the progress of his defence.

[ 33 ] The applicant submits this period of delay is attributable to institutional resources of LAO which did not issue a certificate when Mr. Boateng asked to change his lawyer. He submits this ought to be considered inexcusable institutional delay and/or delay counted against the Crown in the assessment of the reasonableness of the delay. He cites the Ontario Court of Appeal decision in R. v. Chatwell [5] and the Alberta Court of Appeal decision in R. v. Koruz [6] . Both of these cases left open the potential of a legal aid institution having responsibility in accounting for the delay. The applicant also relies on R. v. Chang [7] in which the court stayed the proceedings as a result of a lengthy delay in the finding and retaining of replacement counsel for a co-accused, where the court found the process was not adequately policed by the Crown.

[ 34 ] The circumstances in the case at bar do not lead to a conclusion that either LAO or the Crown’s actions or inaction went beyond or fell short of the responsible execution of their responsibilities and duties of due process. The applicant complains that LAO unfairly refused to allow a change of counsel. Yet he has provided no evidence of the reasons behind the LAO decision to refuse his change of counsel to show that the decision was unfair or unreasonable in the circumstances. His LAO appeals were also unsuccessful. There is no evidence that there are systemic inadequacies in the LAO service. Without an evidentiary foundation of improper dealings by LAO, such as mala fides, deliberate violations of the LAO procedures, or negligence in the execution of its responsibilities to an applicant, the logical and fair inference in the circumstances of the case at bar is that the reasons for refusal by LAO were based on sound and justifiable considerations.

[ 35 ] Justice Wein dismissed the applicant’s first Rowbotham application for lack of evidence; providing evidence was the responsibility of the applicant. Without explanation, the applicant chose not to provide the additional evidence within thirty days after the first Rowbotham hearing and refusal, despite being given that opportunity by Justice Wein. Even in the second Rowbotham application, the court commented on weaknesses on the part of the applicant in the preparation of his application. All of these problems were factors within the applicant’s control and responsibility in attending to his own defence.

[ 36 ] As is evidenced in the numerous transcripts filed, the Crown was making reasonable efforts to move the matter forward. He was hindered in the progress of this prosecution for months as a result of the applicant’s continuous and repeated requests for adjournments to allow pursuance of his efforts to retain counsel of his choice.

[ 37 ] In all the circumstances this 15 ½ month period of delay incurred for the applicant to secure counsel is attributable neither to the actions or inaction of the Crown, nor to institutional causes. As stated in Koruz [8] : “ The Crown is not responsible for arranging legal counsel for an accused. …the retaining of counsel is up to an accused. He must take the initiative. And this step takes time.” In the case at bar the process took much more time than usual but it is still an inherent delay necessitated by the applicant’s own desire to change his counsel after having submitted his certificate and retaining another counsel. The applicant is entitled to pursue his right to be represented by counsel of his choice but if the process is unduly prolonged as a result of decisions he makes and there is no evidence to support administrative or prosecutorial misconduct, the delays occasioned in the process are neutral in the assessment of the cause.

[ 38 ] Except for the delays occasioned during Mr. Boateng’s efforts to retain new counsel, this case has not been unduly delayed. The applicant was offered a trial date in April 2012 which would have been about five months after his representation by Mr. Norris was achieved as a result of the order on the second Rowbotham application in November 2011. The delay of 42 days to the May trial date, which was requested due to Mr. Boateng’s counsel’s schedule, was waived by the defence. The further delay to the October 1, 2012 trial date was to allow time for the preparation of additional transcripts for filing on the hearing of this section 11(b) application. The position of the defence is that this delay between May 22, 2012 and October 1, 2012 is “potentially attributable to the defence” but is outweighed in the overall balancing. That delay is not attributed to the defence as it was reasonably part of the process in bringing this application and the case to trial.

Prejudice to the Accused

[ 39 ] By October 2012, the applicant will have been in custody awaiting trial for a period of 26 months. The fact of psychological stress and anxiety pending the determination of criminal charges is obvious and irrefutable. In the case at bar there is the additional anxiety, frustration and confusion experienced by the applicant after LAO declined his request to change his lawyer. There were numerous court attendances which required follow up on the progress of the LAO appeals and status of his Rowbotham application. Despite the delay of 26 months, which in normal circumstances would be considered prejudicial to an accused awaiting trial while in custody, there is no evidence in this case to support a conclusion that the applicant’s ability to make full answer and defence has been compromised in any way as a result of the delay.

[ 40 ] Further, having regard to this court’s finding that the greatest delay stems from the applicant’s own decisions to change his legal representation, and the time required for the applicant to secure legal counsel is attributable to inherent neutral delay, any resultant prejudice to the applicant is balanced in the circumstances of this case by the benefit to the applicant in having finally achieved the legal representation he sought. While the applicant is not faulted for delays occasioned for the purpose of seeking counsel, he should also not be permitted to claim prejudice for delays caused for his own benefit as a result of his own decisions. [9]

Balancing of the Individual and Societal Interests

[ 41 ] The wording of section 11(b) of the Charter leads to a question of when does delay become “unreasonable”. In this case the delay of 26 months, when analyzed and explained as to its causes, does not reach the level of unreasonable delay. This is so particularly when balanced against the societal interest in having a serious charge tried on the merits. As Sopinka J. stated in Morin , “as the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.” [10]

[ 42 ] The charge against the applicant, which alleges importation of a large quantity of heroin, is one of the most serious offences under our law. It is a crime which causes untold grief and misery, a “despicable crime” that “tears at the very fabric of our society”. [11] Heroin has been described as “the worst of the hard drugs” by the Ontario Court of Appeal. [12]

Conclusion

[ 43 ] In all the circumstances where a major portion of the 26 month delay is neutral and driven by the applicant’s own decisions about changing his counsel, and there is a pressing societal interest in having this serious charge brought to trial, there is no basis on which to conclude the applicant’s rights under s. 11(b) of the Charter have been infringed.

[ 44 ] In the result therefore the application is dismissed.

Seppi J.

Released: September 13, 2012

COURT FILE NO.: CRIMJ(F) 1331/11
DATE: 2012 09 13

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – ERNEST BOATENG Applicant REASONS FOR RULING Seppi J.

Released: September 13, 2012

[1] R. v. Morin , 1992 SCC 89 , [1992] 1 S.C.R. 771, at para. 90 , per McLachlin J. citing R. v. Conway , 1989 SCC 66 , [1989] 1 S.C.R. 1659, at p. 1672

[2] R. v. Qureshi , 2004 ONCA 40657 , [2004] O.J. No. 4711 (Ont. C.A.) paras. 10 – 13

[3] Qureshi supra , at para. 22

[4] R. v. Seegmiller (2004), 2004 ONCA 46219 , 191 C.C.C. (3d) 347 (Ont. C.A.), at para. 26

[5] R. v. Chatwell , 1998 ONCA 3560 , [1998] O.J. No. 206, at para. 15

[6] R. v. Koruz , 1992 ABCA 144 , [1992] A.J. No. 490, at pp. 45-46

[7] R. v. Chang , [2005] O.J. No. 4381 (S.C.J.)

[8] R. v. Koruz , 1992 ABCA 144 , [1992] A.J. No. 490, at p. 17

[9] R. v. Lahiry , 2011 ONSC 6780 at paras. 79 and 84

[10] R.v. Morin , 1992 SCC 89 , [1992] 1 S.C.R. 771, at para. 30

[11] R. v. Sidhu , 2009 ONCA 81 , at para. 12

[12] Sidhu supra, at para. 10