SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 1-611141
DATE: 20130109

RE: HER MAJESTY THE QUEEN

• and -

TRISTAN CHARLES

BEFORE: G.R. Strathy J.

COUNSEL:
Anna M. Martin, for Tristan Charles, Applicant
Christine Josic, for the Crown, Respondent

DATE HEARD: December 19, 2012

E N D O R S E M E N T

[1] Tristan Charles stands charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. He applies to stay the proceedings, asserting infringement of his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time.

[2] For the reasons that follow, the application is dismissed.

I. Introduction

[3] Mr. Charles was arrested, along with Rajief Williams and a minor, on December 30, 2009, at an apartment located at 4110 Lawrence Avenue East in Toronto. The police had obtained information that drug dealers had taken over the apartment to traffic in cocaine. The tenant gave access to the police, who found the three men near a table on which there were 18.84 grams of crack cocaine. A digital scale was in plain view. Each of the accused was found in possession of two cell phones and Canadian currency.

[4] The preliminary hearing was originally scheduled for both Mr. Charles and Mr. Williams on June 23, 2011, but was adjourned to September 28, 2011. On that date, Mr. Charles conceded committal and a bench warrant was issued for Mr. Williams.

[5] In the Superior Court, a trial was scheduled for October 1, 2012, but it did not proceed, for reasons discussed below. It was put over to December 17, 2012. I heard the s. 11(b) application on December 19, 2012 and reserved to this date.

[6] I will begin with a chronology of the proceedings. I will then set out the governing legal principles on applications under s. 11(b) of the Charter and will apply those principles to the facts of this case.

II. Chronology

[7] The history of this proceeding is as follows:

Dec. 30, 2009 Mr. Charles was arrested, along with Mr. Williams and a minor, and charged with possession of cocaine for the purposes of trafficking and possession of the proceeds of crime ($468.75).

Dec. 31, 2009 A bail hearing was held. Mr. Charles was released on surety bail with two named sureties. A first appearance date was scheduled for February 3, 2009.

Feb. 3, 2010 The first appearance after show cause. The Crown brief was not in court and disclosure was not available. Counsel for Mr. Charles appeared, although she was not yet retained. Mr. Williams did not have counsel. The matter was put over for four weeks to March 3, 2010.

Mar. 3, 2010 The Crown brief was not in court and disclosure was not available. Counsel for Mr. Charles appeared and stated that she was looking for disclosure. Mr. Williams was said to be in the process of retaining counsel. The matter was put over to March 26, 2010 for disclosure.

Mar. 26, 2010 Counsel for Mr. Charles appeared. Mr. Williams did not appear. Disclosure was still not available. The Crown stated that some further disclosure had come in and was being vetted. The Crown stated, “It is starting to get dated, so I will look into this matter and advise the Crown assigned to do the vetting of the next return date.” The matter was adjourned to April 13, 2010.

Apr. 13, 2010 Counsel for Mr. Charles appeared. Mr. Williams was not present. The Crown brief was not in court and no disclosure was available. The Crown stated, “It looks like the situation is kind of elastic. There’s no brief in court but there is probably disclosure that needs to be vetted.” A letter from Mr. Wildman, counsel being consulted by Mr. Williams, requested that the matter be adjourned to May 11, 2010. The Crown suggested that, considering the offence dates, the matter should come back in one to two weeks and said that she would inform the Crown who was responsible for vetting the file. The matter was adjourned to April 22, 2010.

Apr. 22, 2010 Mr. Charles appeared without counsel. Disclosure was provided to both accused. The Crown suggested an adjournment to May 7, 2010, but the matter was adjourned to May 11, 2010, as Mr. Williams was returning on that date. Mr. Charles was told that his counsel should have a Crown pre-trial in the interim.

May 11, 2010 Counsel for Mr. Charles sent a note advising that she had scheduled a Crown pre-trial for May 18, 2010. Counsel, who was not yet retained, appeared on behalf of Mr. Williams and requested an adjournment for a Crown pre-trial. The matter was adjourned to May 25, 2010, so that Crown pre-trials could be completed.

May 25, 2010 A Crown pre-trial had been held for Mr. Charles. Counsel for Mr. Charles sent a note advising that she wished to set a judicial pre-trial and because Mr. Williams did not yet have counsel, she suggested an open court pre-trial. She provided dates for a pre-trial in May and June and stated that if the co-accused had counsel she was ready to set preliminary hearing dates. She provided dates in September through December 2010. Duty counsel advised that Mr. Williams stated that he had retained Mr. Wildman and that he needed two weeks to meet with his lawyer to review the disclosure. Crown advised that judicial pre-trial dates could not be set until both accused had had Crown pre-trials. Mr. Williams was asked to return in two weeks with a letter of retainer. The matter was adjourned to June 7, 2010.

June 7, 2010 Counsel for Mr. Charles appeared and was seeking to set a judicial pre-trial. Counsel for Mr. Williams was not present and there was no letter or note from him. Counsel for Mr. Charles suggested that the matter be put over for two weeks to June 21, but that week was not available due to G20 disruption. The matter was adjourned to July 8, 2010, with a view to setting a date for a judicial pre-trial.

July 8, 2010 Counsel for Mr. Charles was unable to attend. She sent a letter requesting a date for a judicial pre-trial and proposed dates commencing July 20 through October 2010. Mr. Charles had had disclosure for 2½ months, had had a Crown pre-trial and had been asking for judicial pre-trial. The Crown suggested that because the estimate for the preliminary hearing was six hours, it did not require a judicial pre-trial conference. Mr. Williams stated that he was expecting a letter from his lawyer, but there was no letter. Mr. Williams was sent to practice court for case management that afternoon. The information indicates that he was remanded to August 4, 2010, peremptory on him, to retain counsel. Mr. Charles was adjourned to August 5, 2010.

Aug. 4, 2010 Based on the information, Mr. Williams appeared before Caldwell J. on August 4, and was remanded to August 9, 2010, to provide proof of retainer or a letter from counsel.

Aug. 5, 2010 Counsel for Mr. Charles appeared and filed a statement of issues and witnesses. Mr. Williams was apparently supposed to attend August 9, 2010 to provide proof that he had retained counsel. The matter was adjourned to September 8, 2010.

Aug. 9, 2010 No transcript or other information as to Mr. Williams’ attendance is available.

Sept. 8, 2010 Counsel for Mr. Charles appeared. She stated that she had been ready to set a date for a preliminary hearing for a long time. Mr. Williams had still not retained counsel for trial. A letter from Mr. Wildman, counsel for Mr. Williams, indicated that he had not been retained for trial and that he had tried to have a Crown pre-trial by phone and in person, but the Crown was not available. The matter was adjourned to Sept. 30, 2010 for an open- court judicial pre-trial and to set a date for a preliminary hearing.

Sept. 30, 2010 Counsel for Mr. Charles was not able to attend, although Mr. Charles had expected that she would attend. Mr. Williams had still not retained counsel. Duty counsel indicated that Mr. Wildman was requesting “one final adjournment in anticipation of a full retainer on the next date.” The Crown acknowledged that the matter was “really dated”. The matter was adjourned to October 8, 2010 and Mr. Williams was advised that the matter should be set down with or without counsel. The Crown noted that it had been made peremptory on Mr. Williams to set a date on August 4, 2010, when he had appeared himself. The presiding judge asked the Crown to note that Mr. Williams advised that he would be paid the following week and that he would get the money to his lawyer by the next court date.

Oct. 8, 2010 Counsel for Mr. Charles had sent a letter indicating that she had been waiting for Mr. Williams to retain counsel, that she had had a Crown pre-trial and had filed a statement of issues, and that she was ready to set a date for a preliminary hearing. She provided available dates for a preliminary hearing from October 2010 through May 2011. The letter was read out in court, but the presiding judge misunderstood and thought it had been written on behalf of Mr. Williams, not Mr. Charles. Mr. Charles was clearly confused as well, because he was not aware that the letter in question was from his counsel. The Crown indicated that it was willing to set a preliminary hearing date and that no judicial pre-trial was required. The matter was adjourned to October 22, 2010.

Oct. 22, 2010 Both accused appeared with letters from their counsel to duty counsel. Counsel for Mr. Charles stated, “Please set a preliminary inquiry date. We have been waiting for months for Mr. Williams to retain Mr. Wildman. The statement of the issues was filed some time ago.” She then provided available dates from mid-November 2010 through to May 2011. Counsel for Mr. Williams was still not retained but had conducted a Crown pre-trial. Counsel for Mr. Williams indicated in a letter that he was prepared to set a date for a preliminary hearing on a “with or without counsel” basis. Duty counsel indicated that counsel for Mr. Williams had provided the date of February 15, 2011 for a preliminary hearing and that this date coincided with a date provided by counsel for Mr. Charles, but the Court indicated that the date was not available and that dates for a preliminary hearing were not available until the second week in June. The matter was put over to November 10, 2010 for counsel to appear and coordinate dates of availability. In fact, it appears that the letter from counsel for Mr. Williams had indicated other dates, but these were overlooked.

Nov. 10, 2010 The matters appeared in practice court and were sent to 114 Court. The Justice of the Peace indicated that Judge Sparrow had ordered that a date be set as a target date and an interim date had been set for December 1, in 117 court. Counsel for Mr. Charles sent a letter apologizing for being unable to attend. She indicated that Mr. Charles had been held up for many months by Mr. Williams and that she had been ready to set a preliminary hearing date for some months. She submitted that Mr. Williams had still not retained counsel and that “he should be forced to set a date, or the Crown should sever, as this delay is prejudicing Mr. Charles’ fair trial rights at this point. This situation is unacceptable.” She then set out available dates for a preliminary hearing from November 2010 through June 2011. Duty counsel indicated that the letter from counsel for Mr. Williams stated that he was “pretty much free” after February 15, 2011. June 23, 2011 was set for the preliminary hearing, with a confirmation date set for December 1, 2010, to confirm the availability of counsel for Mr. Williams.

Dec. 1, 2010 Both Mr. Charles and Mr. Williams were required to attend. The preliminary hearing target date was confirmed, on a “with or without counsel” basis for Mr. Williams.

June 23, 2011 The date scheduled for the preliminary hearing. Counsel for Mr. Charles appeared with Mr. Charles. Mr. Williams was present, but was without counsel as counsel was not fully retained. The Crown indicated that the matter was set to proceed with or without counsel. The Crown said that it was ready to proceed. The Court indicated that another matter was also scheduled for a six hour preliminary hearing on that day. Counsel for Mr. Charles indicated that she had been ready to go for a long time and was interested in proceeding. The Court noted that the matter was “fairly old”, but was concerned about the list and the fact that Mr. Williams did not have counsel. The Court indicated that there was a scheduling issue. Counsel for Mr. Charles said that s. 11(b) was an issue and suggested that severance was a possible remedy. The Crown said it would consider that. The trial coordinator advised that another judge could be available, but there was apparently no other Federal Crown available. The Crown advised that he had considered severance and did not think it would make sense to do so. The Court indicated that in view of the fact that there was another matter proceeding, this matter would not be completed, even if commenced, so the matter was adjourned. The charge of simple possession against Mr. Charles was withdrawn. The Crown and defence agreed to a consent committal on the other charges and the calling of certain witnesses in respect of the applicant. The matter was adjourned to July 18, 2010 to set a date for a preliminary inquiry.

July 18, 2011 Counsel for Mr. Charles met with the Crown before court and obtained a new preliminary hearing date of September 28, 2011 from the trial coordinator’s office. Earlier dates of August 5 and 12 were offered, but were not available to the Crown. Other August dates were not available for either the Crown or defence. Counsel for Mr. Charles was unable to attend court and Mr. Williams was unrepresented and did not have dates from his counsel. The presiding judge required both accused to re-attend on July 25, 2010 to confirm availability of counsel for Mr. Williams on September 28, 2011. Mr. Charles asked to be excused from attending on July 25, but the request was refused.

July 25, 2011 Counsel for Mr. Williams provided a letter indicating that he was not retained, but if retained would be available September 28, 2011. Counsel for Mr. Charles sent a letter to duty counsel indicating that the matter was nearly 20 months old and that Mr. Charles had counsel and had been prepared to proceed from the outset. The letter noted that the Crown had refused to sever and asserted that Mr. Charles’ fair trial rights were being prejudiced by the delays. The preliminary hearing was set for September 28, 2011, with or without counsel.

Sept. 28, 2011 Preliminary hearing. Mr. Williams failed to appear and a bench warrant was issued. The preliminary hearing commenced after lunch and concluded at the end of the day. Mr. Charles was committed to trial. An assignment court date was set for October 26, 2011.

Oct. 26, 2011 First appearance in the Superior Court. A judicial pre-trial was scheduled for December 14, 2011. Counsel for Mr. Charles had been requesting earlier dates, but federal pre-trials were only available on Wednesdays and there was congestion in the system, because pre-trials in the previous week had to be cancelled and re-scheduled. The December 14, 2011 date was the earliest available.

Dec. 14, 2011 A judicial pre-trial was held. The trial was set for five days commencing October 1, 2012, the first date available for the Crown. Counsel for Mr. Charles indicated that she had dates that could accommodate a five day trial commencing January 16, 2012. It was noted that delay was an issue and that a s. 11(b) application might be brought in advance. The matter was put over to February 6, 2012 to be spoken to.

Feb. 6, 2012 The defence was waiting to see whether a s. 11(b) application would be funded by Legal Aid. The matter was adjourned to March 6, 2012 to be spoken to.

Mar. 6, 2012 Mr. Charles was not present. He “just wasn’t able to get a ride and lives in the far reaches of Scarborough”. Counsel advised that she was still waiting to hear from Legal Aid about funding a s. 11(b) application, because if it was funded, the application could be booked prior to the scheduled trial date. The matter was adjourned to March 30, 2012.

Mar. 30, 2012 Counsel advised the Court that the trial coordinator had suggested that the s. 11(b) application be brought at the trial rather than in advance. The Crown was still unsure whether Mr. Williams would be joined with Mr. Charles for the purpose of the trial. The matter was adjourned to April 27, 2012.

Apr. 27, 2012 The matter was put over to September 4, 2012 to confirm the trial date.

Sept. 4, 2012 The Crown had now been assigned. Mr. Williams had been re-arrested and his preliminary inquiry had been scheduled. Counsel for the defence and counsel for the Crown were to have discussions. The matter was adjourned to a readiness date of September 10, 2012.

Sept. 10, 2012 The trial date was confirmed – no defence application was anticipated.

Oct. 1, 2012 The matter came on for trial in the Superior Court. There were discussions with the presiding judge about various trial management issues, including the anticipated length of trial, the Crown’s opening, evidentiary issues, a Parks challenge and jury selection. The presiding judge was available October 1-5, but not the following week, should the matter go over, which appeared to be a possibility. There was a discussion of the possibility of completing the evidence on October 1-5 and addressing the jury on October 15-16. Ultimately, a jury panel was not available that day and the matter was adjourned to October 3, 2012, to determine whether a panel would be available.

Oct. 3, 2012 A jury panel was available. The presiding judge advised counsel that it would not be possible to continue the trial in the week of October 15, 2012, as originally contemplated, as there were “in custody” matters, both provincial and federal, that had priority that week. After an adjournment to discuss the matter, Counsel for Mr. Charles advised that her client chose to proceed by jury and not by judge alone, as proposed by the Court and the Crown. A new trial date was set for December 17, 2012, which was the earliest available date. Defence counsel noted that time would be tight, given the holidays.

Nov. 9, 2012 The matter was spoken to with respect to a s. 11(b) application. It was acknowledged that there was a narrow window and the presiding judge and trial coordinator indicated that the application would most likely be heard on the trial date.

Dec. 17, 2012 Defence counsel was unable to obtain a hearing date for the s. 11(b) application prior to trial. The Crown opposed the application being heard and, if it was heard, requested an adjournment to prepare materials. The matter was adjourned to December 19, 2012 for hearing.

Dec. 19, 2012 The section 11(b) application was heard. Decision reserved to January 9, 2013.

III. Applicable Principles

[8] 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 protects the rights of accused persons and also the interest of society in the fair and expeditious resolution of criminal proceedings.

[9] In R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 at paras. 26‑28, Sopinka J. observed that the primary purpose of s. 11(b) of the Charter is to protect three rights of the accused: (a) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings; (b) 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 (c) the right to a fair trial, which is protected by attempting to ensure that proceedings take place while evidence is available and fresh. See also R. v. Askov, 1990 45 (SCC).

[10] The secondary purpose of s. 11(b) is to protect the interests of society. Society has an interest in ensuring that persons accused of crimes—particularly serious crimes—are brought to trial to be dealt with according to law.

[11] The onus of proof is on the accused to establish on a balance of probabilities that his or her right to be tried within a reasonable time has been violated.

[12] In determining whether delay is unreasonable, the Court must consider:

(a) the length of the delay;
(b) whether there has been any waiver of time periods by the accused;
(c) the reasons for the delay; and
(d) prejudice to the accused from the delay.

[13] After this inquiry, the final stage requires a balancing of the various individual and societal interests that s. 11(b) is intended to protect.

[14] The Supreme Court indicated in Morin that a reasonable period of institutional delay in the provincial court is eight to ten months, and in the superior court is six to eight months.

[15] I now turn to the application of these principles to the facts of this case.

IV. Analysis

(a) Length of the Delay

[16] The first factor is the length of delay.

[17] In this case, Mr. Charles was arrested on December 30, 2009. He appeared for trial before me on December 17, 2012, some 35½ months later. The total delay is sufficient to justify further inquiry.

(b) Waiver by the Accused

[18] There is no allegation that Mr. Charles waived his s. 11(b) rights with respect to any period of delay.

(c) The Causes of the Delay

[19] The application of this factor requires an objective analysis of the periods of delay to determine the cause of each.

[20] This factor is also difficult to apply because the causes of a particular period of delay frequently overlap.

[21] In this particular case, the principal causes of the delay were the delays of the co‑accused, Mr. Williams, in the Ontario Court of Justice and limitations on institutional resources in both courts.

(i) Inherent Time Requirements

[22] There are inherent time requirements of every case.

[23] In this case, the applicant concedes that the period of December 30, 2009 to February 3, 2010 should be characterized as neutral intake.

[24] The applicant also acknowledges that the period April 23 to May 11, 2010 (19 days) was required for arranging a judicial pre‑trial conference.

[25] I would also view the period of November 11, 2010 to February 15, 2011 (97 days) as part of the inherent requirements of the case.

[26] The period of September 29 to December 14, 2011 (77 days) should be regarded as part of the neutral intake period in the Superior Court.

(ii) Actions of the Applicant

[27] The applicant concedes that the period of September 30 to October 8, 2010 (9 days) is attributable to defence delay.

[28] While I find that no other time should be allocated to defence delay, some scheduling difficulties arose because defence counsel were not always present together with their calendars.

(iii) Actions of the Crown

[29] In my view, the period of March 31 to April 22, 2010 (23 days) should be allocated to Crown delay in making disclosure.

[30] Counsel for Mr. Charles submits that the period from September 8 to 30, 2010 should be allocated to the Crown, but I do not agree.

(iv) Limits on Institutional Resources

[31] I find the following periods of delay attributable to limitations on institutional resources:

(a) February 16, 2011 to June 23, 2011 (128 days);
(b) January 18, 2012 to October 1, 2012 (258 days);
(c) October 2, 2012 to December 17, 2012 (77 days).

[32] Although I count the delay from October 2 to December 17, 2012 against the Crown, I note that it was only about two and one‑half months after the originally scheduled trial date.

(v) Other Causes: Delay of Co‑Accused and Trial Together

[33] A substantial cause of the delay resulted from the efforts of Mr. Williams to retain and instruct counsel.

[34] There were considerable delays in scheduling the preliminary hearing due to his failure to formally retain counsel.

[35] It was not suggested that Mr. Williams intentionally delayed the proceedings.

[36] As a general rule, delay caused by the actions of a co‑accused is considered neutral.

[37] The Court of Appeal has recognized that it is generally in the interest of justice that persons jointly charged be tried together.

[38] There are strong policy reasons for this principle.

[39] The question is whether a point has been reached where delays due to a co‑accused should count against the Crown.

[40] To assess this issue, it is necessary to consider what steps were taken by the Crown and the Court.

[41] There were two periods of delay caused by Mr. Williams: May 12 to November 10, 2010 and June 23 to September 28, 2011.

[42] Concerning the first period, there was significant delay due to Mr. Williams’ failure to retain counsel.

[43] In my view, counsel for Mr. Charles understates the extent to which delays are attributable to Mr. Williams.

[44] The transcripts show that both the Crown and the Court were alive to the delay and attempted to case‑manage the matter.

[45] I am not satisfied that the point was reached where the charges should have been severed.

[46] I therefore allocate the period May 12, 2010 to November 10, 2010 (183 days) to delay by the co‑accused.

[47] The second delay occurred from June 24, 2011 to September 28, 2011 (97 days).

[48] In my view, it is reasonable to attribute this delay to Mr. Williams.

Summary of the Causes of Delay

[49] My conclusions on the characterization of the various periods between Mr. Charles’ arrest and the scheduled trial date are summarized as follows:

Total Delay: 1084 days

Inherent: 318 days (10½ months)
Crown: 23 days (¾ month)
Institutional: 463 days (15¼ months)
Other (Co‑accused): 280 days (9¼ months)

[50] Counsel for Mr. Charles submits that there was approximately ten months of institutional delay in the Ontario Court of Justice and twelve months in the Superior Court.

[51] For the reasons I have indicated, I disagree with this analysis.

[52] I now turn to the issue of prejudice.

(d) Prejudice to the Accused

[53] Section 11(b) is concerned with prejudice caused by delay in disposing of the charge.

[54] Mr. Charles has adduced no evidence of any prejudice resulting from the delay.

[55] I can infer that he suffered some anxiety, concern and stigma as a result of the charges.

[56] However, the impact on his liberty interest was minimal.

[57] There is no evidence that the delay affected trial fairness.

[58] In summary, there is no evidence of actual prejudice and any inferred prejudice is minimal.

V. Balancing

[59] The balancing process requires consideration of both the individual rights of the accused and the interests of society.

[60] The Morin guidelines are not fixed ceilings.

[61] Some of the delays in the Ontario Court of Justice were the result of attempts to accommodate the co‑accused’s right to counsel and the public interest in a joint trial.

[62] I am not satisfied that any inferred prejudice outweighs society’s interest in a trial on the merits involving serious drug charges.

[63] Balancing the interests involved, I am not satisfied that Mr. Charles has demonstrated an infringement of his right to trial within a reasonable time.

VI. Conclusion

[64] For the foregoing reasons, the application is dismissed. The matter will now be spoken to for the purpose of scheduling the trial.

G.R. Strathy J.

DATE: January 9, 2013

[^1]: November 10, 2010 to June 23, 2011 (7½ months) and July 18 to September 28, 2011 (2⅓ months).
[^2]: December 14, 2011 to October 3, 2012 (9⅔ months) and October 3 to December 17, 2012 (2½ months).
[^3]: February 3 to April 22, 2010 (2⅔ months), June 23 to July 18, 2011 (¾ month) and October 26 to December 14, 2011 (1⅔ months).