ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. : 4/12
DATE : 20121105

B E T W E E N:

HER MAJESTY THE QUEEN - and - MUBSHAR MAHMOOD

Richard Nathanson , for the Crown, appellant
Glen Henderson , for the accused, respondent

HEARD: October 11, 2012

[Reasons for Judgment on summary conviction appeal against the stay of proceedings granted by Mr. Justice Grossman of the Ontario Court of Justice on December 13, 2011 for a violation of s. 11(b) of the Charter of Rights ]

Mr. Justice Kenneth L. Campbell:

I

Introduction

[ 1 ] On June 17, 2010, the respondent, Mubshar Mahmood, a 32 year old cab driver, was arrested and charged with the offences of sexual assault and forcible confinement. The alleged victim of these offences, is a 23 year old female student at York University. She alleges that the respondent forcibly confined her and sexually assaulted her while she was in his taxi cab and he was driving her home from school.

[ 2 ] The matter was scheduled to be tried in the Ontario Court of Justice almost 16 months later on October 6, 2011. On that date, however, the respondent brought an application to stay the proceedings, arguing that he had not been tried within a reasonable time as required by s. 11(b) of the Charter of Rights . On December 13, 2011 the Honourable Mr. Justice Grossman delivered his Ruling concluding that there had, indeed, been a violation of s. 11(b) of the Charter and staying the proceedings against the respondent. See: R. v. Mahmood , 2011 ONCJ 779 ; [2011] O.J. No. 5977 .

[ 3 ] The Crown appeals against this decision. The Crown contends that there was no violation of the right to be tried within a reasonable time in the circumstances of this case, and that the trial judge erred in his analysis and in his conclusion in arriving at the contrary result. The respondent contends, on the other hand, that Grossman J. committed no error in staying the criminal proceedings against him.

[ 4 ] Before turning to the historical chronology of this case it will be useful to briefly outline the general nature of the analysis required by s. 11(b) of the Charter of Rights , and to describe the applicable standard of appellate review.

II

The Basic Analysis Required by

Section 11(b) of the Charter of Rights

[ 5 ] Over the years, much has been said about the purpose, scope and application of the constitutional right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter . The Supreme Court of Canada has addressed these issues many times. See, for example: R. v. Conway (1989), 49 C.C.C. (3d) 289 (S.C.C.) at pp. 306-307; R. v. Smith (1989), 52 C.C.C. (3d) 97 (S.C.C.) at p. 106; R. v. Askov (1990), 59 C.C.C. (3d) 449 (S.C.C.) at pp. 479, 483-484; R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) at pp. 13-14; R. v. Sharma (1992), 71 C.C.C. (3d) 184 (S.C.C.) at p. 190; R. v. MacDougall (1998), 128 C.C.C. (3d) 483 (S.C.C.) at pp. 499-500; R. v. Godin (2009), 2009 SCC 26 () , 245 C.C.C. (3d) 271 (S.C.C.). Over time, however, the basic legal analysis that is required on s. 11(b) Charter applications has been settled.

[ 6 ] Where an accused contends that he or she has not been tried within a reasonable time, the accused has the legal burden of proof of establishing the alleged violation of s. 11(b) of the Charter of Rights on the balance of probabilities. See: R. v. Morin , at p. 14; R. v. Farewell (2008), 2008 BCCA 9 () , 229 C.C.C. (3d) 17 (B.C.C.A.) at para. 77 .

[ 7 ] Of course, whether a delay is unreasonable is not simply a function of the passage of time, but includes a thoughtful consideration of several other constitutionally relevant factors. Indeed, in determining whether or not there has been a violation of s. 11(b) of the Charter of Rights in any particular case, the following factors must all be taken into account:

(1) The length of the delay;

(2) Any waiver of time periods by the accused;

(3) The reasons for the delay, including:

a. The inherent time requirements of the case;

b. The conduct of the accused or delays attributable to the accused;

c. The conduct of the Crown or delays attributable to the Crown;

d. Systemic or institutional delays;

e. Any other reasons for delay; and

(4) Any prejudice to the accused.

[ 8 ] Once all of these relevant factors have been analyzed, the final stage of the analysis requires a balancing of the various individual and state interests that s. 11(b) of the Charter is designed to protect, against the factual background of these factors.

[ 9 ] The primary purpose of s. 11(b) of the Charter is the protection of the individual rights of accused persons, namely: (1) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings; (2) the right to liberty, which is protected by trying to minimize exposure to restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, which is protected by attempting to ensure that proceedings take place while evidence is available and fresh. See: R. v. Morin , at pp. 12-13; R. v. Askov , at pp. 450-451, 474-477.

[ 10 ] The secondary purpose of s. 11(b) is to protect the interests of society. One aspect of this secondary purpose is the inherent value in prompt criminal trials, which closely parallels the interests of the accused. However, another aspect of this secondary purpose recognizes that society has a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Indeed, as the seriousness of the alleged offence increases, so does the societal demand that the accused be brought to trial. The existence of these dual purposes requires the court, in the final analysis, to balance the important societal interest in seeing a prosecution through to a result on the merits of the case, against the accused’s and society’s important interest in a timely criminal trial. See: R. v. Morin , at pp. 12-13, 29-30; R. v. Askov , at pp. 450-451, 474-477; R. v. MacDougall , at pp. 495-498; R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont.C.A.) at para. 9 .

III

The Standard of Appellate Review

[ 11 ] At trial, the Crown elected to proceed by way of summary conviction. Section 813 (b)(i) of the Criminal Code , R.S.C. 1985, chap. C-46 (as amended) provides that the Attorney General may appeal from an order that stays proceedings on an information or dismisses an information. This confers a broad appellate jurisdiction on the appeal court to review the trial court record and determine for itself, in all of the circumstances of the case, whether or not the trial judge reached the right conclusion in staying the proceedings. While this broad appellate jurisdiction includes consideration of whether the trial court made any legal errors or erroneously disregarded or misapprehended evidence bearing upon the relevant issues, the ultimate responsibility cast upon the appeal court by s. 813 (b)(i) is to determine whether the trial court, in staying the proceedings, reached the correct conclusion.

[ 12 ] The jurisprudence supports this view of the scope of appellate review regarding trial court decisions to stay criminal proceedings. More specifically, the governing authorities hold that assessments by the trial court concerning the various individual periods of delay in any given case, including how the trial judge legally characterized them and allocated them under the recognized legal categories, are not akin to the exercise of any judicial discretion. Therefore, the appeal court owes no deference to the trial court with respect to such issues. Rather, in the application of this standard of correctness, the appeal court is obliged to substitute its own views for that of the trial judge if it disagrees with the legal analysis or the legal conclusions of the trial judge. On the other hand, the applicable authorities also hold that, with respect to any findings of fact that may be made by the trial judge, such findings are only reviewable on the standard of “palpable and overriding error.” See: R. v. Schertzer (2009), 248 C.C.C. (3d) 270 (Ont.C.A.) at para. 71-72 ; Leave denied : [2010] S.C.R. xv; R. v. Tran , 2012 ONCA 18 , at para. 19 ; R. v. Cranston , 2008 ONCA 751 , at para. 35 ; R. v. M.(N.N.) (2006), 209 C.C.C. (3d) 436 (Ont.C.A.) at para. 5-6 ; R. v. Qureshi , at para. 27 ; R. v. Chatwell (1998), 122 C.C.C. (3d) 162 (Ont.C.A.); appeal quashed : (1998), 125 C.C.C. (3d) 433 (S.C.C.).

... (full text continues exactly as in the decision) ...

Kenneth L. Campbell J.

DATE: November 5, 2012

COURT FILE NO. : 4/12
DATE : 20121105

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN - and - MUBSHAR MAHMOOD

REASONS FOR JUDGMENT Kenneth L. Campbell J.

Released: November 5, 2012