COURT FILE AND PARTIES

COURT FILE NO.: CR-12-40000269-0000
DATE: 20121102

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANDINE TAYLOR AND RUEBEN PHILIPS APPLICANTS

David Midanik for the Applicant, Andine Taylor
Patrick Barry for the Applicant, Rueben Layne Phillips

• and -

HER MAJESTY THE QUEEN

Sheila Cressman , for the Respondent

RESPONDENT

HEARD: October 29-31, 2012

Thorburn J.

RULING RE SECTION 11(b) CHARTER APPLICATION

Part 1. The Issue

[ 1 ] The Applicants, Taylor and Philips, seek a stay of these proceedings on the grounds that their Section 11(b) Canadian Charter of Rights and Freedoms right has been infringed. Section 11(b) of the Charter provides that every person charged with an offence has the right to be tried within a reasonable time. [1] S ection 11(b) protects the public interest in having laws enforced by having those who break the law tried promptly to maintain public confidence. [2]

[ 2 ] The onus is on the accused to establish the alleged violation of section 11(b) of the Charter .

[ 3 ] For the reasons that follow, I do not believe a stay of proceedings is warranted.

Part II. The Law

[ 4 ] The following factors must be considered when assessing whether the right to be tried within a reasonable time has been infringed :

A. the length of the delay;

B. the reasons for the delay;

i. inherent time requirements given the nature of the case;

ii. actions of the accused including waiver of delay [3] ;

iii. actions of the Crown including the Crown’s failure to provide adequate and timely disclosure to the defence;

iv. limits on institutional resources; and

v. other reasons for delay.

C. prejudice suffered by the accused; and

D. whether a stay of proceedings is warranted upon balancing the societal interest in ensuring that the accused be brought to trial, with the delay and reasons for delay. [4]

Length of the Delay

[ 5 ] No one factor is determinative. The proper approach is not to apply a mathematical or administrative formula, but rather to make a judicial determination that balances the protection of the right to be tried within a reasonable time against the factors that cause the delay. Some delay is inevitable. At some point, the delay becomes unreasonable. [5]

[ 6 ] In keeping with these requirements, the overall time taken to proceed to trial must be analyzed and categorized. [6] In Morin , the court held that the appropriate guideline for a period of institutional delay in provincial court is between 8 to 10 months and the guideline for institutional delay after committal for trial is in the range of 6 to 8 months for a total guideline period of 14 to 18 months. [7]

Reasons for Delay

Inherent Time

[ 7 ] Under a section 11(b) Charter analysis, delay attributable to inherent time requirements is not attributable to either party. [8] One such inherent time requirement is the “intake requirement”, the time to retain counsel, deal with bail, disclosure and police paperwork. The time allowable for “intake requirement” varies depending on the nature of the case and the functions that must be completed. Periods ranging from two to eight months have been attributed to “intake” functions in the Ontario courts, depending on the circumstances of the particular case. [9] The time allotted as reasonable intake time should be deducted from the overall period of delay. [10]

[ 8 ] Where a case must proceed through a preliminary inquiry, a longer time must be allowed than for cases which do not require a preliminary hearing. A two-stage process will involve additional inherent delays such as further pre-trial meetings and added court dates. [11]

[ 9 ] O rdinarily delay caused by the actions of a co-accused is considered neutral in the section 11(b) analysis. [12]

Delay Attributable to the Parties Including Waiver

[ 10 ] Delay may be attributable to actions taken by either Crown or Defence. The court must determine whether the delay is unreasonable.

[ 11 ] Waivers of delay by an accused person must be clear and unequivocal. There must be some advertence to the protections afforded by the Charter for trial within a reasonable time. Waiver can be evidenced by the express agreement of the accused, or conduct that gives rise to an inference of informed waiver. Waiver may be implied where a choice is made and that choice “amounted to an agreement to the delay.” [13] At paragraph 44 of Morin Sopinka J. observed:

In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedure and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

[ 12 ] Assigning delay to the Crown or Defence is not concerned with assigning blame but simply with identifying the cause of the delay. “The 11(b) inquiry is concerned with the effect of Crown conduct on the progress of proceedings, not the bona fides of that conduct.” [14] For this reason, no extra weight is accorded to delay occasioned by a party because its actions are held to be indefensible. [15] In R. v. Kugathasan [16] at paragraph 15 Doherty J.A. for the Court explained that the parties “must take responsibility for the delays that are the consequences of [their] tactical choices. [...] the exercise is not about criticizing defence counsel or assigning fault. It is about a realistic attribution of causes for delay in the context of considering whether the overall time period in issue is such as to result in a breach of the rights under section 11(b).”

Institutional Delay

[ 13 ] Delays caused by limited institutional resources will generally be assessed against the prosecution, even though they are not the result of the conduct of a particular Crown attorney. They are usually the result of the failure to provide sufficient court facilities, judges and support personnel to prosecute in a timely manner.

[ 14 ] Institutional delay begins to run when all parties are ready for trial but the system cannot accommodate them. [17]

Prejudice to the Applicants

[ 15 ] There are three aspects to the prejudice analysis: liberty interests; security interests and fair trial interests. [18]

[ 16 ] The liberty interest of the accused arises as a result of pretrial detention and by restrictions placed on the free movement of the individual while he is released on bail. [19] Even where restrictive bail conditions are relaxed as the delay lengthens, the restrictions of bail may be taken into consideration as one aspect relevant to the overall assessment of whether the delay was unreasonable. [20]

[ 17 ] The security interest encompasses “…protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation.” [21] This may include stigmatization of the accused, loss of privacy, stress and anxiety resulting from disruption of family, social life, work, legal costs and uncertainty as to the outcome and sanctions to be imposed. [22]

[ 18 ] The third aspect of the prejudice analysis is the fair trial interests. In Morin , Sopinka J. said at page 12 that: “The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. … [Even in the absence of specific evidence of prejudice] prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.”

Balancing the Societal Interest against the Reasons for Delay

[ 19 ] The assessment is not whether the time to trial is optimal but whether the delay exceeds what is constitutionally tolerable.

[ 20 ] The societal interest in ensuring that the accused be brought to trial and dealt with according to the law must be weighed against the delay and reasons for delay to determine :

… whether, on the facts of the particular case, the interest of society in requiring the accused person to stand trial is outweighed by the injury to the accused’s rights and detriment to the administration of justice which a trial at a later date would inflict. The interest of society in bringing those charged with criminal offences to trial is of constant importance. The interest of the accused, on the other hand (and the correlative negative impact of delay on the administration of justice) varies with the circumstances. It is usually measured by the fourth factor – prejudice to the accused’s interests in security and a fair trial. It is the minimization of this prejudice which has been held to be the main purpose of the right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. [23]

(continued exactly as in the source text…)

Thorburn J.

Released: November 2, 2012