CORRECTED DECISION ON MOTION FOR STAY DUE TO DELAY

Corrected decision: Paragraphs [10], [14] and [14 (vii)] of the original decision dated April 23, 2013, were deleted on April 25, 2013, and in their place corrected Paragraphs [10], [14] and [14 (vii)] were integrated into the original decision

Hennessy J.:

[1] These two applications for a stay on the basis of unreasonable delay were argued together on the first day of four days scheduled for this motion and the trial.

[2] Originally three individuals were charged with robbery. One of the three, Marcel Bisaillon, pleaded guilty and has been sentenced. The facts which I have taken from the Crown synopsis filed with the pre-trial brief are set out below.

[3] On February 19, 2011, in the early hours of the morning, a group of three persons entered the basement apartment of Terry Bechard. The group included the two accused and Mr. Bisaillon. They gained entry by kicking in the door. Mr. Bechard called 9-1-1 prior to the actual entrance of the defendants and threw down the phone when the individuals entered the apartment. The entire event was captured on the audio tape from the 9-1-1 centre and lasted a few moments. One of the defendants demanded money and said repeatedly that they were looking for a female called Shadow.

[4] From the evidence of Mr. Bechard at the preliminary, it appears that Mr. Bisaillon held Mr. Bechard by the throat against the pantry while making these demands. It does not appear from the synopsis that there are any allegations that either of these defendants touched Mr. Bechard or spoke to him. Although Mr. Bechard’s laptop and a phone were initially taken when the three accused left the apartment, the items were returned to him after he completely broke down in tears. The police arrived just as the three accused were exiting the building. The police interviewed all four persons briefly and the three accused were arrested immediately.

[5] All three accused were charged on the same information.

Legal Principles

[6] The relevant period of assessment of delay for the purposes of a stay application is the overall time beginning from the date the person is charged to the end of trial. To determine whether there has been an unreasonable delay the court must consider the length of delay (subtracting any periods waived by the accused), taking into account the reasons for the delay, any prejudice suffered by the accused, and the interests that s. 11(b) seeks to protect. (R. v. Nguyen, 2013 ONCA 169 at para. 49, R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18). The assessment is not an application of a strict mathematical formula but involves the weighing of interests that s. 11(b) seeks to protect against factors that lead to or cause delay: Godin, at para. 18).

[7] Factors a court must consider in assessing the delay include:

• The inherent time requirements of the case;

• The actions of the accused;

• The actions of the Crown

• Limitations on institutional resources; and

• Other reasons for the delay.

(Morin at pp. 787-788; and R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 22.) The determination of when delay becomes unreasonable within the meaning of s. 11(b) is not simply a function of the passage of a certain period of time. The proper assessment requires the court to undertake a flexible and functional approach. Formulaic approaches must be strictly avoided. If the entire time period is not unreasonable, then there is no violation of s. 11(b), even if one or more individual portions of that entire period of time, when viewed in isolation, might appear excessive. See p. 345 of R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), Affirmed: 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700.

[8] Systemic or institutional delay is properly defined as the period of delay which commences when the parties are ready for trial but the system cannot accommodate them. In an attempt to articulate the approximate permissible scope of system delay the Superior Court of Canada has set the following ‘administrative guidelines’: in the range of eight to ten months in the Ontario Court of Justice and in the range of six to eight months in the Superior Court of Justice (see R. v. Morin at pp. 18-22). These administrative guidelines are not to be viewed as fixed and inflexible limitation periods, or arbitrary ceilings on the time within which an accused must be brought to trial.

[9] Because a number of the factors must be assessed against the specifics of the case, I note that this case involved a single count indictment where both accused were stopped by police as they exited the premises and the entire event was recorded on audio. There was no surveillance, and no need for experts, outside investigation, or searches. The police attended upon receipt of a 9-1-1 call. They were three blocks away from the premises when the call came in. In short, this was a very simple and straightforward case. The circumstances of this case, the offense and the police involvement stand in sharp contrast to R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1, and R. v. Nguyen, 2013 ONCA 169, which were large, complex prosecutions involving multiple accused, lengthy investigations and joint law enforcement agencies. In those cases, concerted efforts on the part of investigators and prosecutors to ensure timely disclosure were required.

[10] The time period for each accused is the same and it is set out below.

February 19 2011 - date of arrest, followed three days later by bail hearing, both accused released on terms

May 18, 2011 - set date for trial

September 8, 2011 - first date set for trial, Crown makes disclosure of 9-1-1 tape, adjournment

January 12, 2012 - second date set for trial, Mr. Chenier dismisses his counsel, Mr. Bisaillon pleads guilty

February 29, 2012 - Mr. Chenier’s new counsel appears on record to set a date for what is now preliminary hearing

May 24, 2012 - preliminary hearing and committal

June 22, 2012 - indictment filed

September 25, 2012 - pre-trial held in Superior Court if Justice

October 2, 2012 - Assignment Court in Superior Court of Justice, four days set beginning March 18, 2013

March 19, 2013 - Superior Court of Justice proceedings begin with application for stay

[11] The total time between the laying of charges and the anticipated end of the trial is twenty- five months which arguably calls for some investigation.

[12] There were no waivers of any delays by either of the accused persons.

[13] There were two events that require special consideration; the late disclosure on September 8, 2011, which resulted in an adjournment and Mr. Chenier’s dismissal of counsel on January 12, 2011 which also resulted in an adjournment.

[14] The periods of review are as follows:

(i) February 19, 2011 to May 19, 2011

(ii) May 18 2011 to September 8, 2011

(iii) September 8, 2011 to January 12, 2012

(iv) January 12, 2012 to May 24, 2012

(v) May 24, 2012 to June 22, 2012

(vi) June 22, 2012 to September 25, 2012

(vii) September 25, 2012 to March 18, 2013

(i) February 19, 2011 to May 19, 2011

[15] The period from February 19, 2011 to May 19, 2011 included all of the normal intake requirements. There is no issue that the time for these inherent requirements was reasonable and requires no investigation.

(ii) May 18, 2011 to September 8, 2011

[16] On May 18, 2011 counsel appeared ready to set a date for a one day trial. The applicants argue that the time from this date to the first date scheduled should be considered institutional delay. I disagree. For the reasons set out in R. v. Morin at pp. 16, 18 and 26, 27 and R. v. Tran, at para. 40, part of this time is required for counsel to prepare and to clear their calendars. Some of it must be attributed to the inherent time requirements of the case. Only that time after counsel is ready to proceed and the system cannot accommodate them will be considered institutional delay. The Crown argues that two months of this time could reasonably be considered institutional delay. I agree.

(iii) September 8, 2011 to January 12, 2012

[17] On September 8, 2011 or the day before, the Crown disclosed the audio recording of the 9-1-1 call. This was almost eight months after the arrest. It was arguably the most important piece of crown evidence, as it was described as a recording of the incident as it occurred. It was referred to in detail in the officer’s notes, which were disclosed very early on in the proceedings. It had been the subject of a general demand and a specific demand by defence counsel. Upon receipt of the CD at this late stage, defence counsel requested and obtained an adjournment. The presiding judge noted on the record the risk of a s. 11(b) issue arising. It was conceded that this period of four months must be considered Crown delay.

(iv) January 12, 2012 to May 24, 2012

[18] On January 12, 2012, two things occurred. That morning at court, Mr. Chenier dismisses his counsel. His former counsel was present and on his behalf suggested that the trial be adjourned to allow Mr. Chenier to retain new counsel. Counsel for Mr. Bisaillon advised the Crown that he wished to plead and the parties proceeded with the plea before the presiding justice. Counsel for Ms. Bisaillon wished to proceed with the preliminary inquiry. The Crown also wished to proceed. The justice expressed concern that he had just heard the facts read in as part of the plea and also that Mr. Chenier was requesting time to retain new counsel. The Crown then argued and the court agreed that it should not hear all of the witnesses twice and that the matter should be adjourned. The Crown did note that he was concerned about delay.

[19] This time period had no beneficial effect on Ms. Bisaillon nor did any action of hers cause it. This delay cannot be considered to have been an inherent requirement of the process, nor an institutional delay. The justice’s comments about his discomfort over hearing the plea and then proceeding came after he had learned that Mr. Chenier had dismissed his counsel. The record suggests that there was consideration given to having the plea take place in another courtroom. From a reading of the record I am satisfied that the principle driving force behind the adjournment was the fact that Mr. Chenier dismissed his counsel. The comments by the justice regarding the plea were not explored and the record suggests that the fact that the preliminary could not otherwise proceed with the two remaining accused once Mr. Bisaillon decided to plead was the triggering event for the adjournment. I find that the entire period of 4 months must be attributed to Mr. Chenier.

[20] With respect to how this time period is characterized vis-à-vis Ms. Bisaillon, that is another matter. She was ready to proceed that day. On the record, defence counsel suggested that the Crown could proceed against her alone. It was submitted before me that counsel for Ms. Bisaillon asked the Crown to proceed separately against her client, but the request was refused.

[21] As Gordon J. found in R. v. Godin, [2007] O.J. No. 5660 at para. 13, from this point forward, it ought to have been apparent that Mr. Chenier was objecting to further delays. Even if that was not apparent, the Crown and court ought to have been turning their minds to s. 11(b) and the lengthy amount of time it was taking to dispose of this single charge.

[22] While the court in Khan, at para. 30 and Nguyen, at para. 71, cautioned courts against second-guessing crown decisions on how to proceed including on questions of joinder, I again contrast the complexity of both those proceedings with the case before the court. The difference between what might be considered a street arrest and a lengthy gang or international investigation is an obvious distinguishing factor. Ms. Baker, counsel for Ms. Bisaillon, raised the matter with the Crown of having a preliminary hearing for her client alone on January 12. The Crown refused and on the record said: “I have no great desire to do it twice.” On the hearing of this application, his reason for not separating the accused for the purpose of proceeding that day was stated in similar terms. On January 12, 2012, the Crown had an opportunity to consider a means to provide a timely trial to Ms. Bisaillon, and it appears that the consideration of the issue did not include a consideration of the delay that would affect Ms. Bisaillon. As I understand it, there was only one civilian witness and two to four police witnesses required for trial. I note that both the judge and Crown had expressed concern about delay during this appearance.

[23] Counsel referred me to the decision in R. v. Tam, 2002 BCSC 583, 98 C.R.R. (2d) 361, at paras. 24-28, where there is a discussion of the delay risks associated with joint trials. While the judge in that case follows the caution of the court in Khan and Nguyen, he notes that while the Crown in that case was entitled to proceed against accused jointly, that decision carried the risk that it may result in unreasonable delay for one of the accused. Taylor J. notes that the interests of co-accused are often in conflict and stated his view that he saw no reason why one accused should be burdened with the actions of the co-accused. On this point I agree. No part of this four month period should be considered reasonable delay as it pertains to Ms. Bisaillon.

(v) May 24, 2012 to June 22, 2012

[24] On May 24, 2012, the preliminary inquiry was held and the judge committed both Ms. Bisaillon and Mr. Chenier to trial. The indictment was dated June 22, 2012 and filed on June 25, 2012. In its submissions, the Crown conceded that this one month delay should be attributed to the Crown. In light of the identified delay at this time, and fact that this was a straightforward single count indictment, I agree.

(vi) June 22, 2012 to September 25, 2012

[25] The Superior Court pre-trial was scheduled for September 25, 2012, thirteen weeks after the indictment was filed. The usual turn-around time for setting a pre-trial in this jurisdiction is much shorter-- six weeks is not usual, the typical range is between four and eight weeks. Although counsel did not refer to any material that showed what dates were offered to counsel for the pre-trial, I note that within the court file was a copy of the email correspondence between the trial co-ordinator’s office and the crown’s office. On July 6, 2012, the trial co-ordinator offered the Crown’s office five dates between July 16, 2012 and August 14, 2012 for a pre-trial. She also offered dates in September and October. The Crown’s office responded later that day that all September and October dates were fine. At the same time, the trial co-ordinator offered all of the dates to each defence counsel by telephone. There are hand notations on the document showing the availability of defence counsel well prior to September 25, 2012. There was nothing in this correspondence from the Crown that alerted the trial co-ordinator to the need to schedule this matter at the earliest opportunity. The September 25, 2012 date was the second of the September dates that was available.

[26] Counsel for Ms. Bisaillon submitted that this 3.25 month period should be considered institutional delay. The Crown argued that this period of 3.25 months should be considered neutral as it was an inherent requirement. I do not agree with the Crown’s characterization of this time period. The pre-trial briefs on this matter would take very little time to prepare. There were no pre-trial motions, no evidentiary issues and disclosure was complete. Ultimately the main issue identified at the pre-trial was the issue of delay.

[27] There was ample institutional capacity to have this pre-trial within a few weeks of the time the indictment was filed. I am of the view that it was incumbent upon the Crown, in light of the existing delay to be vigilant about all delays and to take every possible step to ensure that the matter proceed expeditiously. This matter was scheduled well outside the usual parameters. I attribute four weeks of this time to inherent requirements and it should be considered neutral. The other nine weeks I attribute to the Crown.

[28] I note the comments made by Justice K.L. Campbell in R. v. Duhamel, 2012 ONSC 5960 at para. 69, when he found that just over one month to set a Superior Court pre-trial was properly attributable to inherent time requirements in the busy jurisdiction of Toronto. That case involved two crowns, originally multiple accused, multiple counts of drug related and weapons offenses, a search warrant and an original plan for a two week jury trial.

(vii) September 25, 2012 to March 18, 2013

[29] The pre-trial judge completed the form report to the trial judge. In this jurisdiction a copy of that report, which is made at the pre-trial, is given to counsel as they leave the pre-trial. Counsel confirmed that they had a copy of the report in their files. In that report the pre-trial judge twice noted that counsel should attend the next assignment court, which was scheduled for October 2, 2012 and seek a date for the s. 11(b) motion and a later date for trial. The notation specifically directs counsel that the motion date is to pre-date the trial date, this accords with the usual procedure in this jurisdiction.

[30] On October 2, 2012 counsel attended at assignment court. There was no transcript filed for that day. The endorsement made on the indictment indicates that March 18-21 was set for the s. 11(b) application and the trial. I asked counsel why a single date had been obtained, and not, as directed, a separate date for the s. 11(b) application and then three days for trial. Counsel could not recollect why they had not followed the direction of the pre-trial judge but they believed that they had come to an agreement on this plan before attending. This is significant because it is well known and I take notice that it is always easier and faster to get fewer dates than more dates. This applies to both the court and to counsel. In other words, had counsel sought one day for the s. 11(b) application and three days for trial, it is highly likely that earlier dates would have been available. Although the transcript was not filed on this proceeding, the trial Crown conceded that he had not given any instruction to the attending Crown to be extra vigilant to seek early dates in light of the delay. This may not be significant since the attending Crown would have been alerted to the issue of delay by virtue of the pre-trial judge’s endorsement on the indictment, which noted that counsel was to set dates for both the s. 11(b) and the trial.

[31] The Crown submits that of the five-and-a-half months between assignment court and trial date, only two months should be considered delay. He argues that transcripts had not been ordered until February and not filed until March. Had the hearing for the s. 11(b) application been set for an earlier date, presumably counsel would have sought authorization to ensure that they had transcripts available earlier. There is no connection between when transcripts were filed and when counsel could have been ready. All preparation work was geared towards a mid-March hearing. In the absence of any evidence that the Crown took any steps to seek the earliest possible date, firstly by seeking fewer days for trial, (i.e., three instead of four), I find that only two months of this period should be considered as reasonable delay, part of the inherent time requirement when setting dates. That leaves three-and-a-half months during this period which I characterize as unreasonable delay.

Summary of Length and Responsibility for the Delay

[32] I find therefore that the proper characterization of time and the calculation of various periods of delay to be as follows:

(i) The overall delay was 25 months.

(ii) Neutral intake totalled three months.

(iii) Inherent time requirements: setting date for the first preliminary hearing, two months, setting the date for the trial two months, for a total of four months.

(iv) The actions of the Crown caused four months of delay for late disclosure of the 9-1-1 audio recording. Other time that can be attributed to the Crown; one month for the indictment, two months for the pre-trial and three-and-a-half months for the trial, for a total of 10.5 months.

(v) The actions of Mr. Chenier caused four months of delay.

(vi) Institutional delay: two months to set the first preliminary hearing date.

(vii) For Mr. Chenier: the calculation of delay is as follows: twenty-five months less three months from (ii) above and four months from (iii) above, plus four months from (v) above, leaving fourteen months of unreasonable or unjustifiable delay.

(viii) For Ms. Bisaillon: the calculation of delay is as follows: twenty-five less three months from (ii) above plus four months from (iii) above, leaving eighteen months of unreasonable or unjustifiable delay.

Prejudice to the defendants’ s. 11(b) Interests.

[33] Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defence to lead evidence, etc. (Godin at para. 30). Prejudice cannot be considered separately from the length of the delay. Even in the absence of specific evidence of prejudice ‘prejudice may be inferred from the length of the delay.’ See Godin at para. 31 and Morin at p. 801.

[34] I also note from a review of the preliminary hearing that the homeowner in this incident suffers from a condition which severely affects his memory. At the preliminary inquiry, he had great difficulty recalling the brief incident. As a way of explaining his inability to remember, he said at least three times during his evidence that ‘it had been a long time’. There is no reason to believe that his memory will not continue to deteriorate over time. This may have an impact on the defence’s right to make full answer and defence.

[35] The Crown cross-examined both defendants on their affidavits. Their evidence was compelling with respect to the stress that they experienced from prolonged exposure to the criminal proceedings and the length of time the charges had been hanging over their heads. Both Ms. Bisaillon and Mr. Chenier described the overwhelming stress under which they had been living and how the release conditions were having a great impact on their families. Neither party has sought a variation of the conditions since they were first imposed and at no time were the conditions relaxed. Mr. Chenier was very clear about why he did not seek a variation. He said that in addition to the stress caused by the conditions, which I will outline below, he and his family were suffering the financial stress of paying his defence costs. He was told that an application for a variation would have cost implications. He could not afford this additional fee. That was the end of the matter.

[36] Mr. Chenier is a qualified tradesperson and is employed in the mining sector. He is the married father of two children and deposed in his affidavit that his family unit is tightly-knit and they particularly enjoy camping together in the summer. As is not unusual in Northern Ontario, his adolescent son plays rep hockey and baseball, which are costly and time-demanding activities. Families with children on such teams are constantly on the road for out of town tournaments, and the schedules are often punishing. Mr. Chenier has been operating under a curfew and as such could not drive to these tournaments. The burden fell to his wife. His inability to assist with this activity over two years was a cause of enormous stress to Mr. Chenier and the family. The fact that Mr. Chenier terminated the retainer with his counsel on the date set for the second preliminary hearing seems to have been triggered by some specific event. Counsel for Mr. Chenier alluded to this in his submissions to the court. There is no suggestion it was done on a whim or for delay purposes. Mr. Chenier acted quickly to retain new counsel. He had to arrange for a retainer. Mr. Chenier was not financially assisted with respect to defence costs. An agent for his new lawyer was before the court in six weeks to set a date. This is a very short period of time to retain new counsel. I conclude that his conduct was not designed to result in a delay. He is an unsophisticated litigant.

[37] Ms. Bisaillon, meanwhile, found herself in an unenviable position, as her ex-husband was her surety. Her mother could not be her surety because she was already the surety to Ms. Bisaillon’s brother, who was originally a co-accused. Thus, her former husband had to supervise her. She found this very stressful. She is a mother of two young children, ages five and seven years old. Ms. Bisaillon was under a term of release that she could not communicate with her brother, who pleaded and was sentenced on August 21, 2012. The family had always been close. Throughout this whole time, Ms. Bisaillon was in the position that her communication with her mother, particularly in the first year, was significantly limited because of her brother’s presence in their mother’s home. All family events were compromised during this period. Ms. Bisaillon also testified that she was either prohibited or persuaded not to enrol in a college program to train as a personal support worker while she remained charged with this offense.

[38] In the early proceedings on this case, counsel for Ms. Bisaillon pressed for early dates and in particular sought to proceed on January 12, 2012. She made it clear that she was not consenting to delays. She alerted the Superior Court pre-trial judge to the delay issue on September 25, 2012. But for the unexplained request at the Superior Court assignment court for a trial date that included a date for this application, there is no reason to conclude that she was satisfied with the pace of litigation. As the court said in Godin, at para. 12, there is a substantial difference between agreeing to a date because it is the appropriate one or agreeing to a date because is the best that can be offered by the system. At all times, Ms. Bisaillon and her counsel were diligent in fulfilling their obligations to keep the case moving forward. There were no delays retaining counsel, there were no unusual disclosure demands or conditions. This was not one of those cases, identified by Sopinka J. in Morin where the delay worked to the benefit or was neutral on the accused or where either accused sought to achieve a benefit from a delay. Unlike the situation in R. v. Lahiry, R. v. Carreira, [2001] O.J. No. 5071 at para, 85, I do not find that the four-month delay caused by Mr. Chenier negatives the legally relevant prejudice.

[39] The bail conditions on each of Mr. Bisaillon and Mr. Chenier represent real restrictions on their freedoms; where they could live, with whom they could live and when they were allowed to be out of the house. They have both suffered real prejudice during this period of twenty-five months.

Balancing of Societal Interest

[40] The court must balance the individual and societal interests sought to be protected by s. 11(b) of the Charter. Before staying 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: R. v. Morin at pp. 29-30.

[41] Although robbery is a serious offense, it appears from the pre-trial briefs and the synopsis of the incident that was available to the court, that Mr. Bisaillon, who pleaded and has been sentenced, played the pivotal and leading role in the event. With respect to the offense itself, society’s interest has been addressed to a great extent. The offense will not go unnoticed or unpunished. The issue remains in respect of two accused persons who appear to have played secondary roles in the incident. Unlike in the four cases that were before Code J. in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, this offense is not one that has been on society’s radar for the last quarter-century as a high priority issue, nor will a stay leave the offense unpunished.

[42] While the length of unreasonable delay in this case hovers on the low end, so too does the level of complexity of this case. It was agreed that the Crown case could be put before the court in one day. I have outlined above how few issues were involved in this case. Once the main player had pleaded, the matter vis-à-vis the two lesser accused dragged on for no justifiable reason. The delay was unreasonable. In light of the length of the unjustifiable delay, the prejudice to the both of the accused persons, and the fact that the interest of society is not entirely unaddressed, I am satisfied that a stay is warranted.

[43] The application for a stay by Lianne Bisaillon is granted.

[44] The application for the stay by Patrick Chenier is granted.

Conclusion

[45] This application was heard on March 19, 2013. It took the full day. I advised counsel that I would have my decision ready for them the following morning, considering that the Crown witnesses had been present all that day and were scheduled to return the following day if necessary to start the trial. I reviewed all of the material filed and delivered my decision in open court on March 20, 2013 and advised that reasons would follow. The Court of Appeal then released the decision in Nguyen. I took time to consider that decision before completing these reasons.

Madam Justice Patricia C. Hennessy

Released: April 25, 2013

COURT FILE NO.: 337.12

DATE: 20130423

CORRECTED DECISION RELEASED: 20130425

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Patrick Chenier and Lianne Bisaillon

CORRECTED DECISION ON MOTION FOR STAY DUE TO DELAY

Hennessy J.

Released: April 25, 2013

Her Majesty the Queen v. Patrick Chenier and Lianne Bisaillon, 2013 ONSC 2376

Case Summary

CORRECTED DECISION ON MOTION FOR STAY DUE TO DELAY

Legal Principles

Summary of Length and Responsibility for the Delay

Prejudice to the defendants’ s. 11(b) Interests.

Balancing of Societal Interest

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2