COURT FILE NO.: 11-90000511-0000
DATE: 20121217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen
– and –
Andrew Barnes and Tryston Corcho
BEFORE: Justice G.R. Strathy
COUNSEL: M. Nassar, for the Crown
P. Bacchus, for Andrew Barnes
J. Razaqpur, for Tryston Corcho
DATE HEARD: November 7, 2012
REASONS: APPLICATIONS UNDER S. 11(B) OF THE CHARTER
[1] Tryston Corcho and Andrew Barnes were jointly charged, together with Terrell Campbell, with trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act. While both Mr. Corcho and Mr. Barnes were initially charged with possession of the proceeds of property obtained by crime, contrary to s. 354(1)(a) of the Criminal Code, that charge was withdrawn as against Mr. Barnes. The trafficking charge against Mr. Campbell was also withdrawn.
[2] Mr. Barnes and Mr. Corcho brought applications to stay these charges, pursuant to s. 11(b) and s. 24(2) of the Charter of Rights and Freedoms, on the ground that their right to trial within a reasonable time had been infringed. After hearing the evidence and the submissions of counsel, I dismissed both applications with reasons to follow. These are my reasons.
[3] The charges relates to a low level opportunity drug buy of $55 worth of crack cocaine (0.27 grams) from an undercover officer at the Sheridan Mall in Toronto.
[4] The alleged offence occurred on July 14, 2010. Both Mr. Barnes and Mr. Corcho were released on bail on July 16, 2010. A five hour preliminary hearing was held in the Provincial Court almost exactly one year later, on July 15, 2011. The matter came on for a projected seven day jury trial in the Superior Court on September 17, 2012, approximately 26 months after the charges were laid.
[5] On September 17, 2012, counsel for Mr. Barnes advised that her client had just been released from hospital after surgery for a serious injury and that he was in no condition to proceed to trial. She requested an adjournment. The adjournment was opposed by the Crown. Counsel for Mr. Corcho stated that he would not consent to an adjournment, in view of his client’s pending s. 11(b) application.
[6] The Crown then brought a motion under s. 591(3) of the Criminal Code for a separate trial of the counts in relation to Mr. Corcho and Mr. Barnes. This motion was opposed by Mr. Corcho, who argued that it would deprive him of his right to make full answer and defence, as he would be unable to cross-examine Mr. Barnes.
[7] I concluded that it would not be in the interests of justice to sever the charges and adjourned the matter to November 5, 2012, for trial before me, in order to avoid further delay.
[8] After hearing three days of pre-trial applications, including this one, the evidence began on November 8, 2012 and was completed on November 22, 2012, after a 12 day jury trial.
I. CHRONOLOGY
[9] The length of delay in this case is sufficient to raise the issue of reasonableness and warrants further inquiry as to why it has taken approximately 28 months to bring the charges to trial.
[10] The chronology of events and a synopsis the reasons for the various delays are as follows:
July 14, 2010 Date of alleged offence and arrest of Mr. Corcho, Mr. Barnes and Mr. Campbell.
July 15, 2010 Information sworn.
July 16, 2010 Mr. Barnes and Mr. Corcho released on bail. First appearance following bail hearing. Disclosure not available. Adjourned to August 20, 2010.
August 20, 2010 Disclosure not available. Adjourned to September 8, 2010 for initial disclosure.
Sept. 8, 2010 Disclosure not yet available. Adjourned to September 29, 2010.
Sept. 29, 2010 Disclosure is provided. Adjourned to October 18, 2010 for Crown pre-trial. Mr. Barnes had contacted counsel, who was requesting a return date of October 13. Matter adjourned to October 18, 2010.
Oct. 18, 2010 Judicial pre-trial required. Counsel for Mr. Corcho indicated that he was seeking judicial pre-trial but unable to set a date due to co-accused not having conducted a Crown pre-trial. Campbell had not yet retained counsel. Adjourned to November 10, 2012, to enable co-accused to conduct Crown pre-trials.
October, 2010 Crown pre-trial conducted for Mr. Corcho.
November 10, 2010 Charges withdrawn against Mr. Campbell. Mr. Barnes had retained counsel, but matter was adjourned to December 1, 2010 to confirm counsel’s retainer. Judicial pre-trial set for December 22, 2010. Mr. Barnes to have Crown pre-trial in interim.
December 1, 2010 Agent for counsel for Mr. Barnes appeared and adjourned matter in order to have counsel pre-trial prior to judicial pre-trial.
December 22, 2010 Judicial pre-trial held. Five hour preliminary hearing set for July 15, 2011, which was the first available date. Interim date set for January 17, 2011.
January 17, 2011 Confirmation date for preliminary hearing. Matter adjourned to July 15, 2011 for preliminary hearing. Mr. Barnes adjourned to February 21, 2011.
February 21, 2011 Information was not before the court and matter put over to February 23, 2011.
February 23, 2011 Mr. Barnes’ matter put over to March 21, 2011 for Crown pre-trial.
March 21, 2011 Agent for counsel for Mr. Barnes appeared and filed statement of issues and witnesses. Adjourned to preliminary inquiry date of July 15, 2011.
July 15, 2011 Preliminary inquiry. Accused committed to stand trial in Superior Court. Matter adjourned to August 31, 2011.
August 31, 2011 First appearance in Superior Court practice court. Judicial pre-trial set for November 30, 2011, which was first date available for counsel for Mr. Barnes. Counsel for Mr. Corcho had earlier dates, but judicial pre-trial date could not be set any earlier due to counsel for co-accused not being available.
November 30, 2011 Judicial pre-trial conducted. Seven day jury trial scheduled to commence September 17, 2012. Confirmation date set for August 13, 2012. Counsel for Mr. Corcho said that he had availability every week up until November date. Counsel for Mr. Barnes indicated that she had dates available starting in January, 2012.
December 20, 2011 Co-accused Mr. Barnes appeared for possible resolution. Matter adjourned to August 13, 2012 for trial readiness.
August 13, 2012 Trial date confirmed.
September 17, 2012 Original trial date – adjourned to November 5, 2012 as Mr. Barnes just released from hospital.
November 5, 2012 Trial date – trial concluded with verdicts November 22, 2012.
II. SUBMISSIONS OF THE PARTIES
Submissions on Behalf of Mr. Barnes
[9] Ms. Bacchus, Counsel for Mr. Barnes, refers to the observation in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 at paras. 54-55, that reasonable institutional delay in Provincial Courts is between eight to ten months, and in Superior Courts six to eight months, for a total range of 14 to 18 months. She submits that this case was not complicated and involved three main witnesses, the undercover officer, the exhibits officer and the arresting officer. This submission is undermined to some extent by the fact that there were eight Crown witnesses at trial, each one of whom was cross-examined at some length by both defence counsel.
[10] Counsel for Mr. Barnes says that there was minimal delay on the part of her client, the initial disclosure took over two months, the first date available for the preliminary inquiry was more than six months after the availability of counsel and the first date available in the Superior Court was more than eight months in the future. She submits that these delays are largely attributable to limits on institutional resources. Most of the institutional delay, she submits, occurred:
➢ from December 22, 2010 to July 15, 2011, in the Provincial Court (6¾ months); and
➢ from November 30, 2011 to September 17, 2011, in the Superior Court (9½ months).
[11] Ms. Bacchus submits that in this case there has been Crown delay of three months, from August 31 to November 30, 2011, and institutional delay of 16 months, which puts the case outside the Morin guidelines. She concedes that there is no rigid formula and each case must be determined on its own circumstances. She submits that in a case that is not legally or factually complex, and that involves only a handful of witnesses, there was an unacceptable period of delay, having regard to the interests that s. 11(b) is designed to protect and society’s interest in ensuring a fair trial within a reasonable time.
Submissions on Behalf of Mr. Corcho
[12] Counsel for Mr. Corcho, like counsel for Mr. Barnes, submits that this was a simple and routine case that did not require an exceptional amount of time to bring to trial. He submits that the majority of the delay was due to an inability to schedule a trial date, after the parties were ready for trial, due to a lack of resources.
Submissions of the Crown
[13] Crown counsel submits that this case is more complicated than the defence contends. It involves two accused persons, jointly charged, the absence of any delays attributable to the Crown, reasonable institutional delays and no evidence of prejudice to the applicants. She submits that there was about six months delay in the provincial court between the day that all parties were ready for trial and the preliminary inquiry. The Crown further submits that the delay in the Superior Court was nine months. These times are well within the guidelines.
III. GOVERNING PRINCIPLES
[14] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. It is designed to protect the rights of accused persons and also the interest of society in the fair and expeditious resolution of criminal proceedings.
[15] In Morin at p. 786, Sopinka J. held that the primary purpose of s. 11(b) of the Charter is to protect three rights: (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 seeking to minimize exposure to restrictions on liberty that 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. He continued, at pp. 786-787:
The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), 1983 1873 (ON CA), 36 C.R. (3d) 73 (Ont. C.A.): ‘Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to benefit of society as a whole and, indeed, to the ultimate benefit of the accused .…’ (p.96). In some cases, however, the accused has no interest in an early trial and society’s interest will not parallel that of the accused.
There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to ‘a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law’ (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.
[16] It is common ground that in determining whether there has been a breach of this provision, and whether the period of delay is unreasonable, the court must consider:
(a) the length of the delay;
(b) whether there has been any waiver of the time periods by the accused;
(c) the reasons for the delay including:
i. The inherent time requirements of the case;
ii. The actions of the accused;
iii. The actions of the Crown;
iv. Limits on institutional resources;
v. Any other reasons for the delay; and
(d) prejudice to the accused.
See: Morin at pp. 787-788; R. v. Askov (1990), 1990 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.).
[17] After this inquiry takes place, the Court must undertake a balancing of the protected interests. No one factor is determinative and the court must balance the interests the provision is designed to protect against the factors that led to the delay: see R. v. Georgio, [2004] O.J. No. 3807 at para. 43. Determining whether there has been an unreasonable delay under s. 11(b) is not a function of the passage of time. There is no mathematical or administrative formula applicable to all cases: see Morin at p 787. The availability of a remedy will depend on the particular circumstances of each case.
[18] It is also common ground that the burden of proof is on the defendant to establish that he or she has not been tried within a reasonable time: see R. v. Conway (1989), 1989 66 (SCC), 49 C.C.C. (3d) 289 (S.C.C.).
[19] In undertaking the Morin analysis, one must not lose sight of the forest for the trees, as Cromwell J. observed in R. v. Godin, 2009 SCC 26; [2009] 2 S.C.R. 3, at para. 18:
The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.
[20] I now turn to an examination of the Morin factors, but I will return to the big picture later in these reasons.
IV. ANALYSIS
The Length of the Delay
[21] In this case, the total period of delay from arrest to the completion of trial is 28¼ months. Counsel for the applicants submit that the institutional delay is well beyond the 14 to 18 month guideline in Morin. The Crown concedes that the period of delay justifies judicial scrutiny.
Waiver of the Delay
[22] The Crown also concedes that Mr. Corcho and Mr. Barnes did not waive any portion of this delay.
Reasons for the Delay
(i) July 14, 2010 to September 29, 2010 (76 days): The arrest, setting of bail, first appearance and disclosure
[23] This intake period is properly categorized as part of the inherent time requirements of the case or neutral. The defendants say that this case was simple and that the police officers’ notes could easily have been disclosed, but this was not the only case in Old City Hall, the busiest trial court in Canada. The police notes had to be vetted, along with all other cases coming into the system. Moreover, two of the accused, Mr. Barnes and Mr. Campbell, had not yet retained counsel and were not ready to proceed. In R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.) at para. 22, Code J. noted that in simple summary conviction drinking and driving cases, two months is a reasonable intake period for initial disclosure and the resolution of preliminary defence-related matters such as retaining counsel and applying for legal aid. The present case is more complex than a routine impaired driving case, as it involved several accused, not all of whom had retained counsel, making scheduling more challenging. Accordingly, just over two and a half months is a reasonable intake period.
(ii) September 29, 2010 to October 18, 2010 (19 days): Review disclosure and set Crown pre-trial
[24] On September 29, 2010, disclosure was provided to the defence and the matter was adjourned to October 18, 2010 for Crown pre-trials and to allow for the review of disclosure. The parties agree that this time period was also part of the inherent time requirements of the case.
(iii) October 18, 2010 to November 10, 2010 (23 days): Mr. Corcho ready for judicial pre-trial, Mr. Barnes and Mr. Campbell were not
[25] On October 12, 2010, a Crown pre-trial was conducted with respect to Mr. Corcho. At the October 18, 2010, appearance Mr. Corcho was ready to set a judicial pre-trial. However, the Crown advised that a judicial pre-trial could not be scheduled because Mr. Barnes and Mr. Campbell had not fully retained counsel or conducted Crown pre-trials. The Crown suggested that the matter return on November 10, 2010 so that it could be case managed.
[26] As part of the Provincial Court’s administrative policy, a Crown pre-trial must be held before a judicial pre-trial. The purpose of this policy is to promote effective and meaningful judicial pre-trials and to avoid expending judicial resources in situations where there have been no initial discussions between the Crown and defence counsel. As a result, the case had to be adjourned to allow Mr. Barnes and Mr. Campbell time to fully retain counsel and conduct a Crown pre-trial.
[27] I find that at least some of this delay, which I will fix at 9 days, was inherent and the balance (16 days) was defence delay or “other reasons” attributable to the unavailability of counsel for the co-accused to have a Crown pre-trial.
(iv) November 10, 2010 to December 22, 2010 (42 days): Charges against Mr. Campbell withdrawn, matter adjourned for Judicial pre-trial
[28] On November 10, 2010, the charges against Mr. Campbell were withdrawn by the Crown. At this time, Mr. Barnes had retained counsel, but the matter was adjourned to December 1, 2010 to confirm his counsel’s retainer. A judicial pre-trial was set for December 22, 2010 and Mr. Barnes was to have a Crown pre-trial in the interim. On December 1, 2010, an agent for counsel for Mr. Barnes appeared and adjourned the matter in order to have a Crown pre-trial prior to the scheduled judicial pre-trial. In R. v. Tran, 2012 ONCA 18, 251 C.C.C. (2d) 201, at para. 34 the Court of Appeal held that a judicial pre-trial is a reasonable and necessary case management tool and “some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.” I find that this delay was part of the inherent time requirements of the case.
(v) December 22, 2010 to July 15, 2011 (205 days): Adjournment from the judicial pre-trial date to the date for the preliminary hearing
[29] The applicants say that the delay in the Provincial Court of about 7 months, between December 22, 2010 when the judicial pre-trial was conducted and July 15, 2011 when the five hour preliminary inquiry was scheduled, should be categorized as institutional delay.
[30] The Crown submits that in the Provincial Court, upon setting the date for the preliminary inquiry, both defence counsel indicated that they had earlier dates available but did not request an earlier date, nor indicate that they were ready to proceed on an earlier date. Furthermore, the matter had to be adjourned in order for counsel for both accused to file a statement of witnesses and issues. According to the Crown, this suggests that defence counsel would not have been ready to proceed on the date on which the preliminary inquiry was set. Further, counsel for Mr. Barnes did not file a statement of witnesses and issues until March 21, 2011. Accordingly, the Crown says that the delay between the date on which all parties were ready to conduct the preliminary inquiry and the date on which the preliminary inquiry took place was approximately 112 days or 3 ½ months - from March 21, 2011 to July 15 2011.
[31] As stated in Tran at para. 34, institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. Counsel require time to clear their schedules and prepare for the hearing. Although both defence counsel advised the court, that they had earlier dates available, they did not put those dates on the record and there was no evidence adduced before this court as to what their schedules were at the time. It is therefore difficult, if not impossible, to determine exactly how the delay between the pre-trial and the commencement of the preliminary hearing should be allocated. The court in Tran faced a similar problem: Tran at paras. 38-40.
[32] I am prepared to accept, however, that a portion of the period from December 22, 2010 to July 15, 2011 is institutional delay in the Ontario Court of Justice. Some allowance should be made, however, for freeing of calendars and preparation by counsel, so I would take the institutional delay in the Ontario Court of Justice as approximately six months and the balance, about 25 days, as inherent delay.
(vi) July 15, 2011to August 31, 2011 (47 days): Accused committed to stand trial in Superior Court and matter adjourned for judicial pre-trial
[33] There is a requirement in Toronto that all case must have a judicial pre-trial before a trial date is set. This promotes resolution, allows for sensible scheduling for both counsel and the court and thereby ensures the efficient allocation of resources. The parties agree that this was part of the inherent time requirement of the case.
(vii) August 31, 2011 to November 30, 2011 (91 days):
[34] The first appearance in Superior Court was August 31, 2011. A judicial pre-trial was required and was set for November 30, 2011, which was the first date available for counsel for Mr. Barnes. It was held as scheduled on that date and a seven day jury trial was scheduled for September 17, 2012, approximately one year and two weeks after the first appearance.
[35] Again, to the extent that there was delay, much of it was attributable to Mr. Barnes, whose counsel was not able to conduct a judicial pre-trial on any date earlier than three months after the first appearance.
[36] I would allocate one-third of the time to the inherent time requirements of the case and the balance to defence delay or other reasons.
(viii) November 30, 2011 to September 17, 2012 (292 days)
[37] In the Superior Court, the first available date for a seven day trial was September 17, 2012, 9½ months after the date on which the parties attended to set a date on November 30, 2011 and 26 months after the date of the charge. The delay of approximately 9½ months between the judicial pre-trial and the originally scheduled trial date can be largely regarded as institutional delay. There should, however, be some allowance for counsel availability and preparation: see Tran at para 34. I am not prepared to assume that two busy counsel were in a position to drop everything, clear their schedules, prepare the necessary pre-trial applications and immediately proceed to a one week trial. I would allow 30 days for counsel to clear their schedules and prepare for trial and the balance I would regard as institutional delay.
(ix) September 17, 2012 to November 5, 2012: (49 days) Adjournment as Mr. Barnes just released from hospital.
[38] The period from September 17, 2012 to the commencement of the trial on November 5, 2012 was due to the injury to Mr. Barnes, which required the adjournment of the originally scheduled trial date. The court was ready to proceed on that date. The Crown’s application to sever the charges and to proceed immediately against Mr. Corcho was opposed by Mr. Corcho on the basis that the interests of justice required that the accused be tried together. I ruled accordingly and the trial of both accused proceeded as scheduled and ultimately took 12 days including pre-trial applications. Mr. Corcho was found guilty of the two counts against him and Mr. Barnes was found not guilty.
Conclusion on Allocation of Delay
[39] There are other reasons for delay in the circumstances of this case. In my view, the delays affecting Mr. Corcho are to some extent attributable to the fact that he and Mr. Barnes were jointly charged and the scheduling of Mr. Corcho’s case was delayed by the need to consider the circumstances of his co-accused and his counsel. In particular, Mr. Barnes did not move expeditiously to retain counsel and this resulted in delays in the Ontario Court of Justice. As well, when the matter moved to the Superior Court, counsel for Mr. Barnes did not have the same availability as Mr. Corcho.
[40] It was clearly in the interests of justice to have the co-accused tried together. In my ruling on the Crown’s application for severance, I referred to the decision of the Court of Appeal in R. v. Savoury, 2005 25884 (ON CA), [2005] O.J. No. 3112 (S.C.). The Court of Appeal in that case noted that “the interests of justice” in s. 591(3) of the Criminal Code includes the interests of the accused, the co-accused and the community, as represented by the prosecution. Severance of the trials would have resulted in a multiplicity of proceedings and added expense, inconvenience and an inefficient use of resources.
[41] It was clearly in the interests of justice to have the co-accuseds tried together, as I found on the severance application. This finding was consistent with the emphatic submissions of counsel for Mr. Barnes. The need to proceed to trial in an expeditious manner had to bend to another important principle – the desirability of joint trials. This added to the inherent time requirements of this case and forms an important part of the reasons for delay.
[42] The breakdown of the relevant time periods between Mr. Corcho and Mr. Barnes arrest on July 14, 2010, to the commencement of their jury trial on November, 5, 2012, is summarized in the chart below:
Time Period
Total Days
Characterization
July 14 – September 29, 2010
76
Inherent
September 29 – October 18, 2010
19
Inherent
October 18 – November 10, 2010
23
7 days –Inherent
16 days – Defence or other
November 10 – December 22, 2010
42
Inherent
December 22, 2010 – July 15, 2011
205
180 days – Institutional
25 days – Inherent
July 15 – August 31, 2011
47
Inherent
August 31 – November 30, 2011
91
61 days – Defence or other
30 days – Inherent
November 30, 2011 – September 17, 2012
292
262 days – Institutional
30 days – Inherent
September 17 – November 5, 2012
49
49 days – Inherent
Total:
844 or 28 ½ months
[43] Based on the above, the total institutional and Crown delay is 442 days or approximately 15 months total.
V. PREJUDICE
[44] The onus is on the accused to establish prejudice, although in some circumstances prejudice may be inferred from the length of the delay.
[45] Prejudice can be considered from several perspectives: (i) the liberty interest – that is, the prejudicial effect of delay on the liberty of the person accused of a crime; (ii) the fair trial interest – the prejudicial effect of delay on the ability of the accused person to obtain a fair trial; and (iii) the security of the person interest – the prejudicial effect of delay on individual security. It is reasonable to infer that delay will cause some impact on the ability of the accused person to obtain a fair trial, since memory necessary diminishes over time. It may also be reasonable to infer some impact on the security interest, due to the anxiety produced by having criminal proceedings outstanding for an extended period of time.
[46] The relevant prejudice is the prejudice arising from the delay in disposing of the charges, not the prejudice that arises, in every case, from the fact of being charged. The Court of Appeal has stated, however, that the significance of actual prejudice is diminished where the delay exceeds the established guidelines: see R. v. Brace, 2010 ONCA 689, [2010] O.J. No. 4474 (C.A.) at para. 21.
Prejudice Affecting Mr. Corcho
[47] Mr. Corcho was 21 years old at the time of the alleged offence and is now 23 years old. He spent two days in jail before being released on bail on July 16, 2010 and he has been on bail since that date.
[48] During this time, he continued to pursue his education and completed high school. He has a two year old daughter who lives with her mother. He had reasonably steady employment between 2007 and 2011 before returning to adult school to complete his high school education in June, 2012.
[49] He obtained work at a restaurant in Mississauga in March 2012 and worked there steadily for about 30 hours a week up until at least the end of August. He testified that his work hours were reduced and he left this employment near the end of October.
[50] He testified that he had made efforts to find new employment and suggested that his efforts had been impeded by this court date, but the evidence in this regard was vague. He was more or less steadily employed or in high school since the charges were laid in July 2010 and I am not satisfied that they have caused any significant interruption in his work.
[51] Nor am I satisfied that his educational goals had been impaired. He said that he had “looked into” programs in broadcasting at two community colleges in September 2012, but he had not applied because it was impossible for him to commit to going to school until the charges were resolved. Once again, he offered little in the way of detail.
[52] He said that his bail terms did not permit him to carry a cell phone, which made it difficult for him to contact family and friends. He had been subjected to an enhanced degree of scrutiny by the police, something that caused him frustration and embarrassment. He testified, for example, that he had been stopped and searched by the police coming back from church.
[53] He stated that if he goes to jail he will lose his job and will be unable to go to college and that this will cause him problems down the road. He will be unable to see his daughter or provide her with financial support.
[54] He testified that there had been stresses as a result of these charges, but agreed that the greatest stress has been due to the possibility that he might go to jail.
[55] On the other hand, Mr. Corcho did not identify any specific prejudice to his liberty, any particularly restrictive terms of bail, or any impact of the delay on his ability to obtain a fair trial. The potential consequences of a conviction are not related to the delay. Most of the other prejudice is attributable to the charge, as opposed to the delay.
Prejudice Affecting Mr. Barnes
[56] Mr. Barnes was also 21 years of age at the time of the alleged offence and was 23 at the time of trial. His high school education ended in grade 10, after which he began working at various part-time jobs. His work at present is sporadic. He has no particular skills, training or work experience that qualify him or enhance his employability in the work place. He has a two year old son. He lives half the time with his mother and half the time with his girlfriend, who is the mother of his son. His girlfriend does not work and they receive assistance from their parents.
[57] After being arrested on these charges, Mr. Barnes was released on a surety bail of $500. He was charged and convicted of failing to comply with his bail in 2011 and received a sentence of time served and probation. He said that as a result of his bail he is under constant police surveillance and he has had many interactions with the police.
[58] He has had some limited work experience as a cashier and doing landscaping and home renovation. It appears that the last time that he worked was in the winter of 2011. He said that his future plan is to apprentice as a drywaller.
[59] Mr. Barnes claimed that these charges prevented him from taking up employment in Fort McMurray, Alberta , doing “courier type work, or auto mechanics, through my mother’s friend’s oldest son”. He said in examination in chief that he got a “job offer” to work there in August and September 2012, but that he did not take the job due to the then scheduled trial date in September. He produced no actual offer of employment, however, and on cross-examination it became clear that there was no firm job offer but simply the possibility of employment through an employment agency. Mr. Barnes made no attempt to vary his bail terms in order to obtain employment outside Ontario. Nor did he demonstrate that he had made any serious effort to obtain employment in Ontario or that these efforts were impeded by these charges.
[60] He said that he has been unable to accept this job offer because he has had to stay in Ontario to deal with this charge. There are no specifics provided about when this offer was made.
[61] He stated that as a result of these charges he has been “constantly anxious and stressed about the outcome and consequences of my matter”. He said that he worries about the matter daily and that the potential consequence of jail caused him stress and anxiety as he would have to leave his girlfriend and son. He testified that he had been hassled by the police with respect to compliance with his bail conditions.
[62] As in the case of Mr. Corcho, much of the stress and anxiety to which Mr. Barnes deposes is related to the fact of the charge and the potential consequences of a conviction.
[63] As a result of being attacked and robbed in September, he suffered a serious knife wound and was hospitalized. A tendon in his thumb was cut and his physiotherapist has told him that he will not be able to work for a couple of years.
[64] In summary, although there is evidence of some prejudice, I find, for the reasons given, that the prejudice is not nearly as severe as alleged by Mr. Corcho and Mr. Barnes. The link between the delay and either of the accused’s ability to find work is tenuous and the prejudice they describe is the type of prejudice that arises, in every case, from the fact of being charged- not the delay. Mr. Corcho’s and Mr. Barnes’ liberty interests have not been noticeably interfered with. Nor has the delay affected their right to a fair trial.
VI. CONCLUSIONS
[65] In my view, balancing all the factors, the institutional delay in this case was not unreasonable.
[66] The institutional delay in the Ontario Court of Justice was approximately six months, well within the guidelines. The delay of nine months in the Superior Court was slightly in excess of the guidelines but, taken together, 15 months delay is within the overall limits of acceptable delay. Trial dates were set and met in both courts, leaving aside a brief adjournment of the Superior Court trial to accommodate Mr. Barnes due to his injury. Counsel and the accused were able to plan their lives and reasonable and fair schedules were established and met in both courts. There were no adjournments of trial dates due to a lack of institutional resources.
[67] The submission of defence counsel that this was a simple case that could have been brought to trial quickly is undermined by the fact that the trial actually lasted 12 days, including pre-trial motions. There were a total of 12 witnesses, including both accused. I suggested to counsel more than once that they might see whether the list of witnesses could be pared through appropriate admissions, but they were unable to do so. The cross-examinations of all Crown witnesses, by both defence counsel, were quite extensive, hence the length of the trial.
[68] In conducting the balancing process, it is appropriate to consider the public interest, and the accuseds’ interest, in a single trial where both accused are jointly charged with an offence. As the Court of Appeal observed in Savoury, at para. 22, there is a presumption that “co-accused who are jointly charged and are said to have acted in concert, should be tried together.” Giving effect to this principle, which in this case was clearly in the interests of both the Crown and the defence, can result in some delay, as this case demonstrates. The needs of one party or his lawyer may slow down the progress of the proceeding, thereby affecting the other party. It is a case of one important principle (the trial of co-accused together) impacting another important principle (the right to trial within a reasonable time). I accept that there may be some cases in which the Crown must consider whether to sever the charges to give appropriate consideration to one accused’s fair trial rights in priority to the interests of the co-accused: see R. v. Topol, [2007] O.J. No. 3094, (S.C.J.) at para. 54, aff’d. 2008 ONCA 113, [2008] O.J. No. 535. In my view, the exigencies of this case did not require that such a decision be made.
[69] There has been minimal prejudice to the accused in this case. As I have noted, the issue of prejudice relates to the interests that s. 11(b) is designed to protect – liberty, security of the person and a fair trial.
[70] Neither Mr. Corcho nor Mr. Barnes speaks to any specific prejudice related to the consequences of the delay. There is no evidence of any impact of the delay on their ability to obtain a fair trial. There is no evidence of any undue restrictions on their liberty as a result of bail terms. There is no specific evidence of any hardship caused by the delay or serious interference with security of the person. There is a lack of specifics in their evidence concerning the alleged interference with their educational plans or work plans. Some of the stress and anxiety to which they both refer has to do with the fact of the charges and the consequences of a conviction. This is attributable to the charges, not the delay.
[71] As both applicants have filed affidavits setting out the alleged prejudice, I see no reason to infer any other or greater prejudice as a result of the delay.
[72] I agree with the submissions of the Crown that most of the evidence that the applicants have put forward is generic and is consistent with what any accused person would experience. The negative effects of being charged with a criminal offence are not a factor to be considered in this analysis: R. v. Kovacs-Tatar, 2004 42923 (ON CA), 73 O.R. (3d) 161 (C.A.) at para. 33.
[73] I also agree that in counting the rings on the trees, one must not lose sight of the forest: see Godin, above at para. 18.
[74] The big picture in this case is that there were initially three accused, jointly charged. Disclosure was completed within ten weeks. The preliminary hearing was completed within 12 months of the date of the offence. Much of the delay was due to the fact that two of the accused, Mr. Barnes and Mr. Campbell, did not retain counsel for over three months. A judicial pre-trial was held in December 22, 2010 and a preliminary hearing date was also set on December 22, 2010. On that date, the preliminary hearing was scheduled for July 15, 2011 and it proceeded on that date as scheduled.
[75] The first appearance in Superior Court was August 31, 2011. A judicial pre-trial was required and was set for November 30, 2011, which was the first date available for counsel for Mr. Barnes. It was held as scheduled on that date and a seven day jury trial was scheduled for September 17, 2012, approximately one year and two weeks after the first appearance. The Crown was ready to proceed on that date and the Court was available, but the matter was adjourned to November 5, 2012 as Mr. Barnes had only just been released from hospital and was in no condition to proceed to trial. The Crown’s application to sever the charges and to proceed immediately against Mr. Corcho was opposed by Mr. Corcho on the basis that the interests of justice required that the accused be tried together. I ruled accordingly and the trial of both accused proceeded as scheduled and ultimately took 12 days including pre-trial applications. Mr. Corcho was found guilty of the two counts against him and Mr. Barnes was found not guilty.
[76] Again, to the extent that there was delay in the Superior Court, much of it was attributable to Mr. Barnes, whose counsel was not able to conduct a judicial pre-trial on any date earlier than three months after the first appearance, and Mr. Barnes being unable to proceed on the scheduled trial date.
[77] In balancing the interests, it is necessary to balance the interests of the accused with the societal interest in a trial on the merits. In this case, one might say on the one hand that these charges are small potatoes – an alleged drug buy of a small quantity of crack cocaine. On the other hand, the scourge of crack cocaine must surely rival impaired driving as a crime that “causes the most significant social loss in the country”: see R. v. Lahiry at para. 89. It is the cumulative effect of hundreds of thousands of small drug buys that causes such profound social loss. There is a societal interest in the trial of every case such as this on its merits.
[78] For these reasons, I concluded that the accused had not discharged the burden of establishing a breach of s. 11(b) of the Charter and their applications for a stay were dismissed.
G.R. Strathy J.
DATE: December 17, 2012