ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. : 117/12
DATE : 20121116

B E T W E E N:

HER MAJESTY THE QUEEN - and - COADY DUHAMEL

Rebecca M. Edward , for the Crown
Ariel Herscovitch , for the accused

HEARD: October 22-24, 2012

Mr. Justice Kenneth L. Campbell:

Pretrial Ruling on Section 11(b) Charter Application

I

Introduction

[ 1 ] On December 1, 2010, the accused, Coady Duhamel, was arrested and charged with a variety of firearms, ammunition, and drug-related offences.

[ 2 ] In the early morning hours of December 1, 2010 a team of Toronto Police Service officers executed a search warrant at a Beresford Avenue residence in Toronto. Just as the police were forcibly entering the premises, a plastic bag containing, among other things, a fully loaded .45 calibre semi-automatic handgun and approximately 137 grams of cocaine and other drug paraphernalia, was thrown from an upstairs deck area. The bag got stuck in some barbed wire at the top of a nearby fence and was eventually retrieved by the police. Inside the premises, the police almost immediately found the accused and Wesley Sommers in the upstairs bedroom adjoining the upstairs deck area. Caitlin Sommers, the accused’s girlfriend and Wesley’s sister, was found in the other upstairs bedroom located at the opposite end of the premises. In the execution of their search warrant the police also found a large quantity of cash located in the bed-side table in the bedroom occupied by Caitlin. Initially, all three of these individuals, Coady Duhamel and the two Sommers siblings, were jointly charged with these offences.

[ 3 ] A week later, the accused consented to his continuing detention without the need for any judicial interim release hearing. The case remained in the Ontario Court of Justice for a total of approximately 15¼ months, until March 6, 2012, when the accused was committed for trial at the conclusion of his preliminary inquiry. By the time of the preliminary inquiry, the Crown had decided to proceed separately against the accused, permitting the Crown to subpoena the two separately charged Sommers siblings as witnesses against Mr. Duhamel.

[ 4 ] After a judicial pretrial conference in the Superior Court of Justice, the matter was scheduled for a two-week long jury trial to commence on October 22, 2012. On that date, the accused re-elected to be tried by a judge alone. At that point, the case had been in the Superior Court for approximately 7½ months.

[ 5 ] At the outset of his trial, the accused 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 . The total delay in this case was, at that point, approximately 22¾ months. While the Crown concedes that this is a sufficiently long period of time to warrant careful scrutiny, especially given that the accused has been in custody throughout, the Crown contends that when all of the circumstances of this case have been assessed, there has been no violation of s. 11(b) of the Charter .

[ 6 ] After hearing the helpful submissions of counsel and carefully reviewing all of the materials filed by the parties, I advised the parties that the application would be dismissed and that the trial would proceed, with my reasons to follow. Accordingly, these are my reasons for dismissing the application by the accused to stay the proceedings.

[ 7 ] Before turning to the 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 .

II

The Basic Analysis Required by

Section 11(b) of the Charter of Rights

[ 8 ] The basic legal analysis that is required on s. 11(b) Charter applications is now well-settled. Where an accused contends that he or she has not been tried within a reasonable time, the accused has the legal burden of establishing the alleged violation of s. 11(b) of the Charter on the balance of probabilities. Of course, whether any delay is unreasonable is not simply a function of the passage of time, but includes the thoughtful consideration of several constitutionally relevant factors. Indeed, according to the leading Supreme Court of Canada decision in R. v. Morin , (1992), 1992 89 (SCC) , 71 C.C.C. (3d) 1, in determining whether or not there has been a violation of s. 11(b) of the Charter , 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.

[ 9 ] 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. Essentially, the court must balance the societal interest in seeing that persons charged with offences are brought to trial against the interest of both society and the accused in prompt adjudication. Before staying the charges, the court 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. See: R. v. Morin , at pp. 12-13, 29-30; R. v. Askov (1990), 1990 45 (SCC) , 59 C.C.C (3d) 449 (S.C.C.) at pp. 450-451, 474-477; R. v. MacDougall (1998), 1998 763 (SCC) , 128 C.C.C. (3d) 483 (S.C.C.) at pp. 495-498; R. v. Qureshi (2004), 2004 40657 (ON CA) , 190 C.C.C. (3d) 453 (Ont.C.A.) at para. 9 ; R. v. Godin , 2009 SCC 26 () , [2009] 2 S.C.R. 3, at para. 30 ; R. v. Austin (2009), 2009 ONCA 329 () , 245 C.C.C. (3d) 284 (Ont.C.A.) at para. 42-43 . R. v. Mahmood , 2012 ONSC 6290 , at para. 8-10 , 104.

V

Conclusion

[ 89 ] In the final analysis, after considering all of the relevant factors, I conclude that the accused has not established that there has been a violation of s. 11(b) of the Charter in all of the circumstances of the present case. Accordingly, as I advised the parties at the conclusion of the oral argument of this application, the criminal proceedings against the accused will not be stayed.

Kenneth L. Campbell J.

DATE: November 16, 2012

COURT FILE NO. : 117/12
DATE : 20121116

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN - and - COADY DUHAMEL

REASONS FOR JUDGMENT Pretrial Ruling on Section 11(b) Charter Application Kenneth L. Campbell J.

Released: November 16, 2012