ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 3817-12

DATE: 2013-03-25

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

QUAN LAO

Applicant

G. Roy & J. Selvaratnam, for the Crown/Respondent

S. DiGiuseppe & J. Penman, for the Defendant/Applicant

HEARD: February 22 & March 13, 2013

Justice b. glass

Application by Defendant for an Order Staying Proceedings Based on Delay Contrary to Section 11(b) of the Charter of Rights and Freedoms

[1] Mr. Lao has been in custody since July 13, 2010. He had been charged the previous month and released from custody pursuant to a judicial interim release order. The July 2010 charges led to the Crown seeking his detention. In time, a bail hearing was completed and the presiding justice ordered that Mr. Lao be detained.

[2] The defendant was one of several people charged with drug and firearm offences. There had been two investigations proceeding by Peel Regional Police Service and York Regional Police Service. The prosecutions have proceeded separately.

[3] Mr. Lao was represented by Mr. John Christie until March 18, 2011. The Crown was seeking an order to disqualify Mr. Christie because of a potential conflict of interest when he represented more than one defendant.

[4] The applicant points to the Crown being slower than would be acceptable with disclosure. The application claims that he has been incarcerated 1045 days or approximately 34.5 months and that the custodial time should be allocated as 236 days inherent to the intake process, 166 days attributed to the Crown, and 643 days as institutional delay days. The institutional and Crown delay days total 809 days or 27 months. I have attached as Appendix A the applicant’s time allocations.

[5] Others charged have been out of custody. Mr. Lao is the only defendant in custody of the group. He has presented an affidavit setting out the hardships experienced while incarcerated at the Central East Correctional Centre in Lindsay, Ontario. Many lockdown days, triple bunking sleeping arrangements whereby he has had to sleep on the floor, unhealthy food supply, lack of dental care when requested, and lack of mental health assistance. The quality of food is challenged as being prone to cause inmates to gain weight. Basically, the Applicant states that the food is not healthy food for people who have no choice what to eat other than not to eat at all.

[6] On the other hand, the Crown disputes the time allocations set out in the applicant’s submissions. At the end of the analysis by the Crown, the suggestion is that much of the time is neutral, inherent and intake so that institutional delay is well within the required limits recommended by the Supreme Court in Morin and Askov. With respect to the issue of disclosure and whether the Crown was slow doing so, the respondent submits that one must take into account the complexity of the charges and the significant number of persons charged. In this case, 32 people were charged.

Issues

(i) Does the applicant meet the criteria from R. v. Morin 1992 89 (SCC), [1992] S.C.J. No. 25 and R. v. Askov 1990 45 (SCC), [1990] S.C.J. No. 106 for a determination that the passage of time from arrest to the end of his trial has been an unreasonable delay and qualifies for an order staying of the proceedings?

(ii) How long was the delay?

(iii) Was there a waiver or waivers of time periods?

(iv) What are the reasons for the delay?

(v) How much inherent time requirements are shown?

(vi) What actions of the applicant influence delay?

(vii) What actions of the Crown influence delay?

(viii) What institutional delay exists?

(ix) What prejudice does the applicant experience with the passage of time and being able to complete his trial within a reasonable period of time?

Review of the Amount of Time Getting the Trial of the Applicant Completed

[8] The charges which Mr. Lao faces are

(i) Traffic cocaine April 22-23, 2010

(ii) Fail to comply with probation order April 22, 2010

(iii) Traffic cocaine May 28, 2010

(iv) Traffic Methamphetamine June 9, 2010

(v) Possession cocaine for purpose of trafficking (with Gomez) June 16, 2010

(vi) Conspiracy to traffic cocaine (with Jones) June 2, 2010

(vii) Conspiracy to traffic cocaine (with Nesterovski) June 1-July 1, 2010

(viii) Conspiracy traffic firearm (with Sarkhis) July 14-15, 2010

(ix) Offer to traffic firearm July 9-15, 2010

(x) Conspiracy to traffic Methamphetamine (with Mac) July 8-17, 2010

[9] Each side has their own interpretation of how to describe adjournments and proceedings. The defendant lies virtually all of the time at the feet of institutional delay and the Crown. The Crown points to the defence being the author of much of the lost time and little at the doorstep of the courts or the Crown. There were many adjournments at the request of the defence for a bail hearing, video remands and changing counsel. These defence requests are described by the applicant as being irrelevant basically because they occurred while waiting for the preliminary inquiry and later for the trial.

[10] I am not persuaded that the applicant is correct to term many adjournments as irrelevant.

[11] With close to three dozen persons charged with significant criminal offence allegations, the inherent and intake times are bound to be enlarged.

[12] There was no specific waiver by Mr. Lao; however, the actions of his counsel and Mr. Lao in adjourning for bail hearings and judicial pre-trials are actions that influenced the delay and are to be considered in a delay application.

[13] The Defence proceeded to challenge the order permitting the interception of private communications. This was done with a Dawson Application in February 2012 at the preliminary inquiry. The use of time for this application including the preliminary inquiry is time that a defendant must accept as legitimate time for his benefit but also as time that is not running against the system or the prosecution. It is apparent from the transcripts that co-ordinating the Dawson Application with many defendants and counsel inherently involved time to prepare, organize and then to pursue.

[14] Prior to being formally retained, Ms. DiGiuseppe in March 2011 expressed concern that Mr. Lao was in custody and that the preliminary inquiry would not proceed for close to a year. On two occasions Ms. DiGiuseppe expressed a concern that time was advancing; however, this was after the trial date had been scheduled for the Superior Court. Well after that trial date had been fixed, Ms. DiGiuseppe announced in November 2012 that she would bring a Charter application pursuant to section 11 (b) for delay. The transcript of the case management / pre-trial judge reflects that he interpreted that announcement as akin to blindsiding the court.

[15] With orders authorizing the interception of private communications, the defendants intended to challenge the order and that was not to be done until February 2012 at the preliminary inquiry by way of a Dawson Application.

[16] Counsel for Mr. Lao had been Mr. Christie. There was a change of counsel in March 2011. There had been a concern that Mr. Christie had a conflict of interest in acting for more than one defendant. When Ms. DiGiuseppe and Ms. Penman were retained, again there were requests to adjourn Mr. Lao’s proceedings. Following the retention of new counsel, a judicial pre-trial in the Ontario Court of Justice was missed by them due to mid-diarizing the date.

[17] If a party requests many adjournments and later submits that they were irrelevant because the preliminary inquiry and the trial were not to occur for quite some time, the party is being unreasonable. This has the effect of creating an ambush.

[18] In 2013 as the parties are close to the trial date, all but one of this group of defendants, including Mr. Lao, has re-elected to proceed to a trial by judge alone. That reduces the length of the trial.

[19] My interpretation of the adjournments is that all participants were content to adjourn the proceedings as they did. These were complicated multi-defendants proceedings. Extensive work was done in both courts to resolve issues. This is not an example of advancing at a slack pace to the detriment of the defendant.

[20] I am not satisfied that there has been systemic delay that justifies a stay of proceedings. On the contrary, had Mr. Lao and his counsel acted with more haste, this matter might very well have reached trial sooner. To then rest the loss of time on those who were not asking for adjournments is not appropriate.

[21] The bottom line is that the institutional time in the Ontario Court of Justice and the Superior Court is not excessive and is within the guidance range provided by the Supreme Court of Canada in Askov and Morin. The charges are not ones involving simple prosecutions. Co-ordinating many defendants and counsel for the various steps of the prosecution of these charges including a preliminary inquiry with a Dawson Application and then on to trial in the Superior Court of Justice has a natural increase in time involvement, much more than a simple single charged offence of a summary conviction nature.

[22] Mr. Lao is now about to commence his trial with a judge alone on April 2, 2013. The trial is expected to finish within the month of April.

[23] Mr. Lao’s application outlines the prejudicial impact of being in custody. He states that he had medical, dental and lost business opportunities while in jail. I am not persuaded that these points carry much weight because my review of the information provided from Central East Correctional Centre leads me to conclude that Mr. Lao did receive attention from the jail doctor and nurse. Mr. Lao’s complaint of depression while in custody with loss of his nephew and previously his father were considered by the custodial physician with the administration of medication. His dental problems focus largely on wear to his teeth from grinding his teeth. He did see a dentist. I conclude that the personnel do not appear to have ignored Mr. Lao’s complaints. He complained about the type of food provided; however, I note that his diet was changed to address his complaints. Mr. Lao experienced solitary confinement at times, but that is explained as being the result of his conduct. I also pointed out to counsel that Mr. Lao served a 30-day jail sentence for other matters during the time in custody. With respect to lost opportunities, Mr. Lao explains that he could have worked as a roofer and also that he could have done music recording; however, I do not see an extreme loss here.

[24] This is not a situation in which Mr. Lao has experienced prejudice of unreasonable delay in the processing of his charges through the courts whereby relief in the form of an order staying the prosecution should be granted.

Conclusion

[25] I find that at the outside the institutional time is within 7 months. These periods of time commence when the parties are ready for trial but the system cannot accommodate them. See R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1. Crown time for presentation of disclosure is part of the inherent process of starting a case and advancing towards preparation for trial. This investigation commenced with almost 3 dozen defendants so that it was not a simple and streamlined case. Even so, disclosure was produced without excessive delay. The times set out in the Crown chart are a more accurate depiction of the months from arrest to the projected end of the trial.

[26] Intake allowance of 4 months, inherent allowance of over 4 months and 3 weeks.

[27] The actions of Mr. Lao for resolutions discussions involve 3 months.

[28] Re-election of Mr. Lao is allocated to 3 month.

[29] institutional time is 7 months less preparation time of 4 month.,

[30] 10 months of neutral time apply here. Neutral time covers those months when the parties were not ready for the preliminary inquiry. Therefore, I conclude that the periods of time for institutional and Crown time are not outside the considerations given by the Supreme Court of Canada.

[31] The applicant is responsible for additional pre-trials, resolution negotiations and changing lawyers. Further, the applicant changed his election to judge alone, but prior to doing so has upwards of 3 months at his doorstep as he advanced towards a longer trial with a jury. Judicial pre-trial and resolution negotiation time is constructive use of time and not a waste of time. More recent cases have noted that judicial pre-trial times are more accurately considered to be an inherent part of the time needed for a case. See R. v. Tran, 2012 ONCA 18 for considerations here.

[32] The times in the above paragraph total 31 months and 3 weeks. The defendant served a 30-day jail sentence along the way as well.

[33] The time assignments for the various categories are within reasonable times for a person to advance to trial. The prejudice to Mr. Lao while in custody is not established because I am satisfied that the explanation from the Central East Correctional Centre for psychological, medical, dental concerns along with my earlier observations about the issue of lost opportunities demonstrate that any prejudice experienced by Mr. Lao is within the normal range of inconvenience and deprivation that an in-custody defendant experiences while awaiting trial.

[34] In conclusion, the application of Mr. Lao is dismissed.

Justice B. Glass

Released: March 25, 2013

(Appendix A and Appendix B reproduced verbatim as provided in the source.)