CITATION: R. v. Jama, 2013 ONSC 4291

COURT FILE NO.: CR12500004070000

DATE: 20130726

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MOHAMED JAMA

Applicant

Michael Wilson, for the Crown

Patrick Metzler, for the Applicant

HEARD: May 23 and 24, 2013

b. p. o’marra j.

RULING ON SECTION 11(b) AND 24(1) OF THE CHARTER

overview

1Mr. Jama was arrested and charged on October 1, 2009 with ten counts of Robbery, four counts of Disguise with Intent, and two counts of Weapons Dangerous. On October 16, 2009 he was released on bail with house arrest terms. On May 30, 2012 he was committed for trial on a total of 12 counts. His trial is scheduled for 6 or 7 weeks commencing September 23, 2013. The total time from arrest to the scheduled trial date in the Superior Court is approximately 47 ¾ months.

the application

2The Applicant claims a breach of his rights under s. 11(b) of the Charter and seeks a stay of proceedings pursuant to s. 24(1). On June 28, 2013 I dismissed the Application with reasons to follow.

chronology

3On October 1, 2009 Mr. Jama was arrested and charged with 16 offences. These related to a series of armed robberies of small businesses in Toronto between September 1, 2009 and October 1, 2009.

A) proceedings in the ontario court of justice

October 3, 2009

Information sworn. First appearance of Applicant. Bail Hearing not commenced. Adjourned to October 5, 2009.

October 5, 2009

Bail Hearing not commenced. Adjourned to October 6, 2009.

October 6, 2009

Bail Hearing not commenced. Adjourned to October 7, 2009.

October 7, 2009

Bail Hearing not commenced. Adjourned to October 16, 2009.

October 16, 2009

Mr. Jama was released after a contested bail hearing on terms involving a $5,000.00 surety without deposit but with terms that amounted to house arrest.

November 2, 2009

Mr. Jama retained counsel, Patrick Metzler, who continues to represent him on these matters.

November 13, 2009

The Applicant appeared with counsel for his first appearance out of custody. The Crown provided an initial disclosure package. The matter was adjourned to December 16, 2009 to allow counsel to review the material.

December 16, 2009

An agent appeared on behalf of Mr. Metzler and on behalf of the Applicant pursuant to a designation. The Defence requested that the matter go over to January 6, 2010 to allow counsel time to review additional disclosure that had been provided.

January 6, 2010

Further disclosure was provided to the Defence. On consent the matter was adjourned to February 3, 2010 to allow a Crown pre-trial to be conducted.

January 13, 2010

The house arrest condition of the release was varied on consent to permit the Applicant to continue his education.

February 1, 2010

Mr. Metzler conducted a telephone pre-trial conference with Crown counsel. It was agreed that a judicial pre-trial would be the next step. Mr. Metzler was advised that there was a co-accused by the name of Warsame with a judicial pre-trial currently scheduled for February 11, 2010. Mr. Metzler agreed that he would try to schedule the judicial pre-trial for Mr. Jama for that same date.

February 3, 2010

On consent a judicial pre-trial was set for February 11, 2010.

February 11, 2010

A judicial pre-trial was conducted before Mr. Justice Merenda. The agreed time estimate for the preliminary hearing for Mr. Jama was seven days. The first dates offered by the Trial Co-ordinator’s office commenced on November 15, 2010. Mr. Metzler indicated he had dates available as early as March of 2010. The Crown advised Mr. Metzler that Mr. Warsame’s preliminary hearing would take place before the Applicant’s. This was based on the Crown’s intention to subpoena the Applicant to testify at Mr. Warsame’s preliminary hearing. The Applicant’s preliminary hearing was set for November 22 through 30, 2010 inclusive. A confirmation date was scheduled for October 15, 2010. A continuing judicial pre-trial was also set for May 13, 2010.

May 13, 2010

An agent appeared on behalf of Mr. Metzler. Disclosure issues were discussed. Proceedings adjourned to August 17, 2010 to deal with outstanding disclosure issues and for a Statement of Issues to be filed.

May 13, 2010

On consent the house arrest terms of bail were varied in regard to the curfew.

August 17, 2010

An agent appeared on behalf of Mr. Metzler and proceedings were adjourned to September 21, 2010 for a further judicial pre-trial. This related to outstanding disclosure issues as well as the assignment of Crown counsel to take carriage of the prosecution.

September 21, 2010

A further judicial pre-trial was conducted. Mr. Michael Wilson attended as the assigned Crown. The estimate of seven days for completion of the matter was confirmed by both counsel. Mr. Metzler indicated that the confirmation date was now not required since he would communicate directly with Mr. Wilson as the assigned Crown.

October 8, 2010

A Statement of Issues was filed with the Court. 16 police officers were listed related to the issue of the admissibility of post-arrest statements attributed to Mr. Jama. The 14 civilian witnesses were not required for the preliminary hearing.

October 14, 2010

Mr. Metzler wrote a letter to Crown counsel confirming that the main issue at the preliminary hearing would be the admissibility of Mr. Jama’s post-arrest statement. He confirmed that the 14 civilian witnesses were not required.

Mr. Metzler also sent a confirming email of the same date wherein he provided a scanned copy of a transcript of Mr. Jama’s audio statement to police. This transcript was created at the request and expense of the Defence by a certified Court reporter. The transcript was shared with the Crown and Court and later made an exhibit at the preliminary hearing.

November 5, 2010

Mr. Metzler contacted Crown counsel to request that the scheduled November 29, 2010 date for the preliminary hearing be vacated. This request was based on Mr. Metzler being required to attend an urgent unrelated extradition matter on that date. In his letter to Crown counsel Mr. Metzler ironically indicated that it seemed that on the Jama matter they had the “luxury of more than sufficient Court time on this matter especially considering the issues have been narrowed”. Crown counsel agreed to the request and notified the trial co-ordinator that the November 29, 2010 date for the preliminary hearing would be vacated.

Further, counsel for Crown and Defence were both advised that assigned Justice Tuck-Jackson was not available to sit on one of the scheduled dates for the preliminary hearing, being November 25, 2010.

Therefore, as of November 5, 2010 two of the assigned seven days for this matter were lost.

Neither Crown or Defence sought further dates for this matter at that time.

November 22, 2010 – DAY ONE OF HEARING

Mr. Metzler advised at the outset that the voir dire on the post-arrest statements of Mr. Jama would determine the issue of committal. There was temporary delay due to late disclosure of some officers’ notes. As well, other unrelated matters were dealt with during the day. It is unclear how much time was lost due to those matters.

November 23, 2010 – DAY TWO OF HEARING

There was late disclosure of some officers’ notes but the matter did proceed with evidence.

November 24, 2010 – DAY THREE OF HEARING

The matter proceeded although it was interrupted after the morning recess in regard to two unrelated matters. At the end of the day in response to a question from the Court, Crown counsel advised that the case was now “significantly behind” schedule. The Defence indicated that they may be calling evidence on the voir dire. The court suggested that counsel should look into getting further dates.

November 25, 2010

This date was originally scheduled for this matter but the assigned Justice was not available.

November 26, 2010 – DAY FOUR OF HEARING

Evidence proceeded throughout the day. Proceedings were interrupted to address other matters. It is unclear how much time was lost.

November 29, 2010

This was one of the original assigned dates which was vacated at the request of the Defence.

November 30, 2010 – DAY FIVE OF HEARING

The matter proceeded and additional dates were obtained, being February 8, March 8 and 31, May 16 and May 20, 2011.

February 8, 2011 – DAY SIX OF HEARING

The audio statement of Mr. Jama was played in Court and the transcript prepared by the Defence was filed as an exhibit. Other matters were dealt with throughout the day. It is unclear how much time was lost.

March 8, 2011 – DAY SEVEN OF HEARING

The Crown pointed out that the cross-examination of one of the officers had taken some four hours of Court time. Evidence continued.

March 31, 2011 – DAY EIGHT OF HEARING

The preliminary hearing proceeded. After the morning recess other matters were dealt with. This matter did not continue until after the luncheon recess. The evidence of the last officer on the voir dire was completed in chief. Crown counsel advised that due to a scheduling conflict May 16, 2011 was no longer available to the Crown. A further date of April 26, 2011 was offered by the Court and accepted by counsel. Two further dates were scheduled, being July 8 and September 8, 2011. The Court asked if any earlier dates were available and was advised there were not.

April 26, 2011 – DAY NINE OF HEARING

There were interruptions both in the morning and afternoon for unrelated matters. A further date of August 22, 2011 was proposed by the Court but the Crown was unavailable for that date. The Crown completed its evidence on the voir dire.

May 20, 2011 – DAY TEN OF HEARING

The evidence continued with the accused testifying in chief. This was not completed before the end of the day.

July 7, 2011 – DAY 11 Of HEARING

Mr. Jama continued his evidence in chief. Other matters were dealt with and much of the afternoon was lost when two fire alarms were activated and the building had to be vacated. Mr. Metzler estimated that the accused’s evidence in chief would occupy a further half-day of Court time.

September 8, 2011 – DAY 12 OF HEARING

Mr. Jama completed his evidence in chief and the Crown commenced cross-examination.

With further dates scheduled for September 26 and October 11, 2011 both counsel felt that the evidence would be complete by October 11 and a date for submissions could be set at that time. The Court indicated that it would be seeking both written and oral submissions based on the issues raised.

September 26, 2011 – DAY 13 OF HEARING

The Defence sought an adjournment in regard to the late disclosure of phone records that exceeded some 2,000 pages. By this time, Mr. Jama had testified in chief and proffered an alibi for certain offences. Since he was in the midst of cross-examination counsel could not review and discuss the undisclosed phone records with his client. An adjournment was granted and the Court ruled that counsel could review the phone records with Mr. Jama before the matter proceeded. In addition to the scheduled date of October 11, 2011 further dates were obtained of November 8 and 9, 2011.

October 11, 2011 – DAY 14 OF HEARING

An adjournment application by the Defence was abandoned after the Crown agreed not to rely on any of the phone records for purposes of the preliminary hearing. An unrelated matter was addressed by the Court in the afternoon that occupied approximately one hour. The cross-examination of Mr. Jama continued but was not completed.

November 8, 2011 – DAY 15 OF HEARING

The evidence on the preliminary hearing was completed. On consent December 16, 2011 was scheduled for oral submissions and counsel were to exchange and file written submissions by December 13, 2011. January 25, 2012 was set for judgment. The assigned Crown was unavailable on that date but said he would have another member of his office present. Before adjourning for the day the Court advised counsel of certain legal issues that she sought input on in written submissions.

December 13, 2011

Crown counsel advised Mr. Metzler that due to a family emergency he would be unable to serve and file the written submissions by December 13, 2011. Mr. Metzler agreed to accommodate the Crown and filed his materials in any event. On December 14, 2011 the Crown advised Mr. Metzler and the Court that he would be unable to continue the matter on December 16 and would be seeking an adjournment again related to a family emergency.

December 16, 2011

The matter was adjourned on consent to February 23, 2012 for oral submissions and March 23, 2012 for judgment.

February 23, 2012

The Crown and Defence filed written submissions and made oral argument. On consent the matter was adjourned to March 23, 2012 for judgment. The Court commented on the “lengthy helpful submissions” of counsel and that she needed a month to consider her decision.

February 25, 2012

Mr. Metzler emailed the Crown and the Court that due to a “family scheduling glitch” in regard to a vacation he had a flight booked for March 23, 2012 and thus was seeking a new date for the judgment.

March 1, 2012

The matter was brought forward and spoken to in Court. A new date for judgment was set for March 30, 2012.

March 21, 2012

Justice Tuck-Jackson emailed counsel and advised that she was not in a position to deliver a ruling on March 30, 2012. She also indicated that she would be emailing a list of further questions to be addressed by counsel in Court on March 30, 2012. She anticipated that she could deliver a ruling some time in the week of April 9, 2012.

March 26, 2012

The Court emailed both counsel with two questions for their consideration and response on March 30, 2012.

March 30, 2012

Lengthy oral submissions were made by both counsel on the issues raised by the Court. The matter was adjourned to the first date available for counsel and the Court, being May 2, 2012.

May 2, 2012

Counsel were advised in advance that the Court would not be in a position to deliver a ruling. On consent the matter was adjourned to May 10, 2012. It was agreed in advance that neither Mr. Jama nor his counsel were required to attend on May 2, 2012.

May 9, 2012

Justice Tuck-Jackson emailed two further questions that she required submissions on for May 10, 2012.

May 10, 2012

Both counsel addressed the additional issues raised by the Court. As well a video was played in Court that the presiding Justice had trouble playing in her chambers. On consent the matter was adjourned to May 14, 2012 for a ruling.

May 13, 2012

The Court emailed counsel indicating that she required more time. She offered to adjourn the proceedings without the attendance of Mr. Jama or his counsel.

May 14, 2012

The matter was adjourned to May 30, 2012 for a ruling.

May 30, 2012

The presiding Justice released a judgment of 105 pages. The accused was committed for trial on a total of 12 counts.

B) proceedings in the superior court

June 28, 2012

First appearance in the Superior Court and a special assignment Court to remand the matter for scheduling a long trial. The matter was adjourned to July 4, 2012.

July 4, 2012

A Judicial Pre-trial was set for August 14, 2012.

August 14, 2012

Counsel estimated trial would take seven to eight weeks. Three pre-trial motions including the 11(b) motion were set for the week of December 10, 2012. The first date offered for trial was September 8, 2013. Defence was available for that date. The Crown requested a later date and September 23, 2013 was set.

December 10, 2012

Three pre-trial motions were set to be heard. The 11(b) application could not proceed as counsel had not obtained all of the transcripts necessary to support the application. That application was then adjourned to May 23 and 24, 2013.

position of the parties

A) the applicant

4The Applicant submits that this delay is excessive and far exceeds the established guidelines. The Applicant further submits that this delay is attributable to the following factors

• Lack of Institutional Resources

− Inability of the system to provide Preliminary Inquiry and Trial dates within a reasonable time.

− Inability of the Court to provide prompt, continuous and additional Court dates.

− Lack of completely dedicated Court dates. Other matters in the same Court given priority over these proceedings.

• Actions of the Crown

− Delay in providing prompt and complete disclosure.

− Prioritizing other matters.

• Judicially caused delay (Other Reasons).

− Delay in the delivery of the Preliminary Inquiry Judge’s Ruling and Committal.

5The Applicant submits he has done everything in his power to have this matter brought to trial as soon as possible. He has suffered, and continues to suffer actual prejudice on account of the wait from charge date to trial. That in consideration of the actual prejudice suffered, the threshold of permissible delay should be reduced in the Applicant’s favour.

6The Applicant submits that the delay to trial in this case has violated his right to be tried within a reasonable time and as a result the charges should be stayed.

B) the crown

7The Crown submits that analysis of the reasons for delay, prejudice suffered by the Applicant and the societal interest in a trial on the merits should lead the Court to find that the Applicant’s s. 11(b) rights have not been violated.

the law on s. 11(b) of the charter

onus

8The Applicant has the legal burden of proving an alleged violation of s. 11(b) of the Charter on a balance of probabilities.

R. v. Morin (1992) 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at para. 14.

R. v. Farewell (2008) 2008 BCCA 9, 229 C.C.C (3d) 17 (B.C.C.A.) at para. 77.

relevant period of assessment

9The relevant period of assessment is the overall period beginning at the commencement of proceedings to the end of the trial.

R. v. Nguyen, 2013 ONCA 169 at para. 49.

10If the entire time period is not unreasonable, then there is no violation of s. 11(b) of the Charter, even if one or more individual portions of that entire period of time, when viewed in isolation might appear excessive.

R. v. Allen (1996) 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (O.C.A.); affirmed 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700.

factors to be taken into account

11The Court must consider the following:

(1) Length of the delay;

(2) Waiver of any time periods by the accused;

(3) reasons for the delay, including

a) the inherent time requirements of the case

b) conduct of the accused or delay attributable to the accused

c) conduct of the Crown or delays attributable to the Crown

d) systemic or institutional delays

e) any other reason for the delay

(4) prejudice to the accused

R. v. Morin at pp. 787 and 788.

R. v. Tran, 2012 ONCA 18, para. 20.

PURPOSES OF S. 11(b) OF THE cHARTER

12The primary purpose of s. 11(b) of the Charter is the protection of the individual rights of accused persons, namely: (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 trying to minimize exposure to restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, which is protected by attempting to ensure the proceedings take place while the evidence is available and fresh. R. v. Morin, at pp. 12-13; R. v. Askov, 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 at pp. 450, 451, 474-77.

13The secondary purpose of s. 11(b) is to protect the interests of society. One aspect of this secondary purpose is the inherent value in prompt criminal trials, which closely parallels the interests of the accused. However, another aspect of this secondary purpose recognizes that society has a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. As the seriousness of the alleged offence increases, so does the societal demand that the accused be brought to trial. The existence of these dual purposes requires the Court, in the final analysis, to balance the important societal interest in seeing a prosecution through to a result on the merits of the case against the accused and society’s important interest in a timely criminal trial. See: See: R. v. Morin, at pp. 12-13, 29-30; R. v. Askov, at pp. 450-451, 474-477; R. v. MacDougall, at pp. 495-498; R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.) at para. 9.

R. v. Mahmood, 2012 ONSC 6290 at paras. 9 and 10.

guidelines for provincial and superior courts

14The Supreme Court of Canada has announced that, as an “administrative guideline”, the permissible range of systemic delay, after the preliminary intake functions have all been completed, is (1) in the range of eight to ten months in the Ontario Court of Justice; and (2) in the range of six to eight months in the Superior Court of Justice.

R. v. Mahmood at para. 64.

R. v. Morin at pp. 18-22.

R. v. S.(L.) (1999) 1999 CanLII 3002 (ON CA), 133 C.C.C. (3d) 493 (O.C.A.).

assessment of the delay

15The Court must avoid the application of any mathematical or administrative formula and instead adopt a judicial determination that balances the interests s. 11(b) protects against factors that either inevitably lead to delay or otherwise cause delay.

R. v. Nguyen, at para. 49.

16Whether a delay is unreasonable is not simply a function of the passage of time. It includes a thoughful consideration of several other constitutionally relevant factors.

R. v. Mahmood, at para. 7.

17The degree of systemic delay in any given case is simply one factor that must be considered under s. 11(b) of the Charter. If the “systemic delay” in a case exceeds the administrative guideline, it will simply weigh against the Crown in the overall assessment of “reasonableness” of the total period of delay. It does not, however, automatically compel a conclusion that there has been a violation of s. 11(b) of the Charter.

R. v. Morin, pp. 19-21.

R. Kovacs-Tatar, paras. 19, 27-30, 51, 52.

18Reasonable intake periods of delay are properly viewed as periods of time in addition to the permissible periods of systemic or institutional delay.

R. v. G. (C.R.) (2005) 2005 CanLII 32192 (ON CA), 206 C.C.C. (3d) 262 (O.C.A.) paras 15-19.

19In assessing the actions of the accused and the Crown under s. 11(b) of the Charter, the Court is not attempting to assign blame to one of the parties for any period of delay. Rather the Court is simply assessing the factual causes for the various delays in the case. Accordingly, there is no need to investigate the intention or motives of the parties. The Supreme Court of Canada indicated in R. v. Morin at page 17 this assessment is simply an attempt by the Court, to take into account all of the actions “voluntarily undertaken” by either the accused or the Crown which, in fact, caused delay in the proceedings. Once it is determined that the conduct of a particular party has caused a particular delay, then that delay is attributed to or counted against, that particular party.

R. v. Mahmood, at para. 62.

measuring institutional delay where further dates are required

20To measure institutional delay it is not enough for the Court to just take into account how much time it might take counsel to prepare for the case. The Court must take into account the other obligations that busy counsel may have on their calendar. The Court cannot assume that apart from preparation time the Defence counsel are immediately available and have no other obligations on their calendar.

R. v. Mahmood, paras. 75, 77.

21In setting trial dates counsel must provide the Court with their earliest available dates, so that some accurate measure of any institutional delay might be undertaken on a subsequent s. 11(b) Charter application.

R. v. Lahiry, 2011 ONSC 6780 at paras. 26-37.

22Where continuation dates are required beyond the original schedule it is no less important that the record show counsel’s earliest available dates in order to fairly assess alleged institutional delay.

prejudice

23The focus of the constitutional protection provided by s. 11(b) of the Charter is the prejudice arising from the delay in disposing of the matter, and not any prejudice that may arise from the fact that he has been charged with the offences.

R. v. Conway (1989) 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289 S.C.C. at p. 305.

R. v. Kovacs-Tatar (2004) 2004 CanLII 42923 (ON CA), 192 C.C.C. (3d) 91 (O.C.A.) at para. 32-34.

24The burden of proof on the issue of prejudice is on the accused. There is no legal presumption of prejudice that flows from any period of delay, no matter how long the delay is.

R. v. Mahmood at para. 82.

25The test in assessing prejudice can be expressed as follows:

Does the interest of the accused and society in prompt trial outweigh the interest in bringing the accused to trial?

R. v. Morin, at pp. 29 and 30.

R. v. Thomson (2009) 2009 ONCA 771, 248 C.C.C. (3d) 477 (O.C.A.) at para. 25.

inherent time requirement where committal for trial depends on the admissibility of post-arrest statements of the accused

26With a notable exception, the reasonable doubt standard does not apply at the Preliminary Inquiry stage.

27The Justice may receive as evidence any information that would not otherwise be admissible but that the Justice considers credible or trustworthy in the circumstances of the case including a statement made by a witness in writing or otherwise recorded.

Criminal Code, s. 540(7).

28Rules as to the admissibility of evidence at trial do not generally apply at the Preliminary Inquiry stage. For example, evidence of intercepted private communications is admissible despite failure to comply with the relevant notice provision.

Criminal Code, s. 540(7) and s. 189(5).

R. v. LeBlanc (2009) 2009 NBCA 84, 250 C.C.C. (3d) 29 (N.B.C.A.).

29A Justice at a Preliminary Inquiry is not a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2) of the Charter.

R. v. Hynes 2001 SCC 82, [2001] 3 S.C.R. 623.

30There is a very limited weighing of evidence at the preliminary inquiry. The Justice shall commit for trial if there is any evidence on which a reasonable jury properly instructed could convict.

Criminal Code, s. 548(1)(a).

R. v. Acuri 2001 SCC 54, [2001] 2 S.C.R. 828.

31The only instance where the reasonable doubt standard applies at a preliminary inquiry is where the Crown tenders a statement given to a person in authority. The burden of proving a statement voluntary is the same at a Preliminary Inquiry as at trial. The standard is proof beyond a reasonable doubt. In the absence of a waiver a voir dire must be held at Preliminary Inquiry, as at trial, to prove voluntariness.

Criminal Code, s. 542(1)

R. v. Pickett (1975) 1975 CanLII 1428 (ON CA), 31 C.R.N.S. 239 (O.C.A.).

32When the accused testifies on an issue where reasonable doubt applies the court must apply the principles set out in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

33In Mr. Jama’s case, Crown and Defence agreed that committal for trial hinged on the admissibility of statements tendered by the Crown. The Crown was required to prove voluntariness beyond a reasonable doubt. Mr. Jama testified on the voir dire.

34It is unusual for an accused to testify on any issue at a Preliminary Inquiry bearing mind the generally lower threshold for admissibility of evidence and the test for committal. The onus of proof on the Crown to prove voluntariness plus testimony from Mr. Jama added significantly to the inherent time required to complete this Preliminary Inquiry.

Judicial pre-trials

35The time required to schedule, prepare and conduct Prehearing Conferences should be considered an inherent requirement of the case for purposes of s. 11(b) of the Charter.

R. v. Nguyen at para. 54.

R. v. Tran at para. 34.

balancing of interests

36The final stage of analysis requires a balancing of the various individual and state interests that s. 11(b) of the Charter is designed to protect against the factual background of these factors.

analysis

37The parties agree that the overall time period merits Charter scrutiny and that the Applicant did not waive any time periods.

38The in-take period in both the Ontario Court of Justice and Superior Court in this case was reasonable.

39The institutional delay to the first set of scheduled dates in the Ontario Court of Justice (to November 30, 2010) was reasonable. The institutional delay in the Superior Court from January 1, 2013 to the scheduled trial date of September 23, 2013 is reasonable.

40The critical issue in this application is the characterization of the period in the Ontario Court of Justice between November 30, 2010 and May 30, 2012. That is the time period between the end of the first scheduled dates in the Ontario Court of Justice and the judgment delivered committing the accused for trial on May 30, 2012.

41The Preliminary Hearing originally scheduled on consent in this matter had seven days set aside. Before the Preliminary Hearing started on November 22, 2010 two of the seven dates were lost for valid reason. One date related to a scheduling problem for Mr. Metzler and on the other date the assigned judge was not available. The completion of proceedings in the Ontario Court required a further nine days of evidence and three days of submissions. The additional dates required for evidence were as follows: in 2011 February 8, March 8 and 31, April 26, May 20, July 7, September 8, October 11, and November 8.

42The three dates required to complete submissions were in 2012: February 23, March 30, and May 10.

43The evidence and submissions in Ontario Court culminated in a very thorough and well reasoned judgment exceeding 100 pages.

assessment of the period from November 30, 2010 through may 30, 2012 inclusive in the ontario court of justice

44The proceedings before Justice Tuck-Jackson resembled a trial more than a Preliminary Inquiry. In order to properly assess the additional time required to complete this Preliminary Inquiry it is informative to refer to portions of the Ruling dated May 30, 2012.

45It was common ground between the parties that the issue of committal stands or falls on the admissibility of post-arrest statements allegedly made by Mr. Jama to the police. It contained the only evidence that identified Mr. Jama as a participant in each of the crimes alleged.

Ruling at para. 5.

46The Court received a compendium of documents which were marked an exhibit pursuant to section 540(7) of the Criminal Code. That evidence included Occurrence Reports, victim and other witness statements as recorded in officers’ memo books, photographs of the crime scene and maps identifying the location of the various premises. The Court heard from 11 police witnesses viva voce including those involved in the arrest and processing of Mr. Jama at the police station as well as the utterances and audio taped statements.

Ruling at para. 6.

47It was the position of the Defence that Mr. Jama was not involved in any of the alleged incidents. In respect of two of the robberies he offered evidence, through his own testimony, of an alibi. He denied making any of the utterances recorded by the officers in their notebooks. He acknowledged certain other statements were made by him but he contends that those admissions against interest were false and were the product of inducements made, and oppressive circumstances created, by a number of officers, including those who took the audio taped statement from him.

Ruling at para. 7.

48Both parties relied on various documentary, photographic and videotaped exhibits to advance their respective theories and positions and to undermine the opposing view.

Ruling at para. 8.

49Both parties invited the Court to consider the demonstrable truth or falsity of the audio taped confession in the Court’s assessment of voluntariness.

Ruling at para. 240.

50It was the Defence and not the Crown who made the confessions truth or falsity a material issue on the voir dire. Indeed, the Defence placed that issue front and centre.

Ruling at para. 241.

51Mr. Jama expressly asserted in testimony that he did not commit the impugned crimes and that the only reason he “confessed” to them, albeit falsely, was to put an end to the prolonged brutality and atmosphere of oppression to which he had purportedly been subjected. The Crown challenged the credibility of Mr. Jama’s assertion.

Ruling at para. 242.

52The parties agreed that a confession’s truth or falsity is not, in and of itself, probative of the issue of voluntariness. It was also common ground between the parties that the Court might utilize its findings of credibility regarding Mr. Jama’s assertion that he did not commit the impugned crimes in assessing the credibility of his related assertion that he was the victim of police brutality. A finding in that regard obviously would bear directly on whether or not the confession was, in law, voluntarily made.

Ruling at paras. 243 and 244.

53It became evident that the approach taken by the parties expanded the scope and duration of a traditional Preliminary Inquiry.

“The cautionary reminder that a voluntariness voir dire is not directed towards the truth of the impugned confession is a common thread that runs through the various authorities. Put another way the voluntariness voir dire is not directed towards a resolution of the ultimate issue of the accused’s guilt or innocence. I hasten to add that a preliminary inquiry is also not directed towards that issue. Instead its resolution rests within the exclusive realm of the trier of fact at trial. In the instant case I fear that the parties have invited me to assess the merits of the case under the guise of a credibility assessment of Mr. Jama’s assertion that his confession is false. I am concerned that, in so doing, they are asking me to go far beyond the permissible scope of a voluntariness voir dire and, effectively, inviting me to usurp the function of the trier of fact on the ultimate issue of guilt or innocence. In my view that is not permissible. Furthermore, it does not necessarily advance the goals which inform the purpose of a voluntariness voir dire”.

Ruling at para. 250, emphasis added.

54The onus of proof on the Crown to prove the voluntariness of the statements beyond a reasonable doubt (and requiring the testimony of 11 officers) plus evidence from the accused that raised issues of voluntariness and the accuracy or reliability of information provided by Mr. Jama created a need for significantly more time for this hearing than the originally scheduled seven days. Justice Tuck-Jackson crystallized the complexity of the issues raised at paragraph 261 of her judgment where she indicated the following:

“The concern arises because the impugned evidence was originally tendered at a proceeding where (1) the judge makes no findings of credibility or reliability in relation to the evidence presented; (2) the judge passes no judgment on whether a burden of proof “beyond a reasonable doubt” has been satisfied; and (3) by virtue of the operation of statute, namely section 540(7) of the Criminal Code, evidence which would otherwise be regarded as hearsay and thus inadmissible may be received by the Court.

The parties have since imported this evidence into a proceeding, namely a voluntariness voir dire, where (1) the judge must make findings of credibility and/or reliability in relation to the evidence presented; (2) the judge must pass judgment on whether a burden of proof “beyond a reasonable doubt” has been satisfied; and (3) there is no common law or statutory authority which authorises the admissibility of what comprises exhibit 1 (the Occurrence Reports and witness statements etc.) except, of course, the entendering of an agreed statement of facts.”

55A further complication in dealing with the admissibility of the statement relates to the testimony of Mr. Jama and the implications of the Supreme Court of Canada decision in R. v. W.D. (1991) 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397. She properly instructed herself on an issue where the onus of proof was beyond a reasonable doubt that she must apply the following:

(5) If she accepted the evidence of Mr. Jama then she must find that the utterances were in law involuntary.

(6) If she did not accept the evidence of Mr. Jama but was left in a state of reasonable doubt by it, she must also find the utterances were in law involuntary.

(7) She could not find the statements were voluntary unless she was satisfied beyond a reasonable doubt on the evidence that she did accept that they were made voluntarily.

56This is an analysis that a Preliminary Inquiry judge is rarely called upon to make. It required an extremely thorough and careful analysis of 14 days of evidence and three days of submissions. It is evident that Justice Tuck-Jackson required all the time that was taken to deal with this matter and provided a careful and detailed analysis for her reasons for finding that the utterances in fact were proven voluntary and that the accused would therefore be committed for trial on most of the offences alleged.

57Unreasonable delay flows from the total assessment of time that is characterized as institutional, Crown or judicial delay. Time periods that are inherent or defence do not form part of the time constituting unreasonable delay.

58In this case, the inherent time required doubled the original joint time estimate. Scheduling additional further dates was complicated by the need to coordinate the schedules of the seized Justice and counsel for the Crown and Defence. These three critical players all have busy schedules and other cases to deal with. The onus is on the Applicant to show that the overall time attributed to institutional, Crown and judicial delay was unreasonable.

59It would be unfair and inaccurate to simply characterize most or all of the additional time required in the Ontario Court as contributing to unreasonable delay. It is reasonable to assume that some period of institutional delay was a factor in the setting of additional dates. However, there is very little evidence on this Application as to how much of the additional time can fairly be assessed as institutional delay.

60After a careful review of the chronology in this case in the Ontario Court I would apportion the majority of additional time required to a combination of the following:

(a) Inherent time required; and

(b) Need to coordinate the schedules of the three critical players: the seized Justice and counsel of record.

61The Applicant was represented throughout by experienced, able and busy counsel. When additional dates were required it would not be reasonable to assume Defence counsel was available on consecutive dates shortly thereafter.

assessment of delay in this case in the ontario court

1. October 1, 2009 (date of arrest) to February 11, 2010 (Judicial Pre-trial)

134 days – intake/neutral

The parties agree this was a reasonable period of time for intake function and scheduling seven days in the last week of November of 2010.

2. February 11, 2010 to April 1, 2010

The Defence agrees this period is intake/neutral.

3. April 1, 2010 to November 30, 2010

Defence claims it was ready to proceed as of April 1, 2010. From then to last scheduled date would be 244 days of institutional delay. That time period was within the administrative guidelines.

4. November 30, 2010 to November 8, 2011

Completion of 14 days of evidence.

Total of 343 days.

As of November 30, 2010 two of the originally scheduled days had been lost. The assigned Justice was unavailable for one day and Defence counsel another.

Further intermittent dates were obtained from February through May of 2011. The Crown was not responsible for the need to recoup the two lost days originally scheduled.

Several of the continuation dates were interrupted to at least speak to other matters. The time lost is unclear. This would constitute some degree of institutional delay but cannot be quantified.

On March 31, 2011 (day eight of the hearing) further intermittent dates in April, July and September of 2011 were agreed on. The evidence of the last Crown witness on the voir dire was completed in chief.

April 26, 2011 (Day Nine of the Hearing) the Crown completed its case in Chief on the voir dire. Yet to come were four days to complete the evidence of the Applicant.

September 26, 2011 to October 11, 2011

15 days

The Crown concedes this is Crown time caused by late disclosure of phone records.

November 8, 2011

Evidence completed.

62The main explanations for the time between November 30, 2010 and November 8, 2011 are the following:

1. the doubling of the inherent time required to deal with the evidence alone; and

2. the difficulty in coordinating the schedules of busy trial lawyers and a Justice of the very busy Ontario Court.

63Both Counsel and Justice Tuck-Jackson expressed concerns about how long the matter was taking and the difficulties in securing further dates. An 11(b) assessment of time periods is not a “blame game”. However, it was clear early on that the original time estimate was significantly low. There were routine interruptions of scheduled dates to deal with unrelated matters. On July 7, 2011 two fire alarms led to unavoidable lost time.

64The overriding causes of this significantly delay were clearly the increased inherent time required and the schedules of the Court and counsel. While there would be an aspect of institutional delay it is unquantified on this record.

65The greater part of this time period is fairly assessed as neutral/inherent.

66The onus is on the Applicant to demonstrate that various time periods contributed to overall unreasonable delay.

67On the record before me I would attribute the following for these 343 days:

inherent/neutral

268 days

Crown

15 days

institutional

60 days

5. November 8, 2011 (completion of evidence) to May 30, 2012 (committal for trial)

Total of 203 days

This time period included the following:

a) written submissions from counsel

b) each of Crown and Defence for valid reasons requested that a scheduled date be adjourned.

c) the Court reviewed 14 days of evidence

d) the Court proactively alerted counsel in advance of certain dates that she required further submissions

e) the Court received and considered three separate days of oral submissions

f) the Court delivered a Judgment of 105 pages

68The Applicant submits that this portion of delay should be classified as judicial delay and/or institutional. I disagree.

69This was not a case where the presiding Justice reserved for an inordinate or inexplicable time before delivering her ruling. Justice Tuck-Jackson proactively alerted counsel in advance on issues she needed to hear from them on. Her Judgment dealt comprehensively with the evidence and issues she was obliged to address. In the particular circumstances of this case I would assess the time from November 8, 2011 to May 30, 2012 inherent and clearly reasonable.

in the superior court

70Mr. Metzler properly submits that the overall period of time must be considered but very fairly did not suggest that the institutional delay in the Superior Court was inordinate or unreasonable. The 11(b) motion originally set on August 14, 2012 for the week of December 10, 2012 was adjourned at his request to May 23 and 24, 2013 in order to obtain the necessary transcripts. The defence would not have been in a position to proceed with the trial before the 11(b) motion was ready to be presented and dealt with.

71In the Superior Court I would assess the time as follows:

June 28, 2012 to December 31, 2012

Intake inherent

186 days

January 1, 2013 to September 23, 2013

Institutional

266 days

Prejudice

72The Applicant claims that he has suffered specific prejudice relating to the duration of proceedings, especially in the Ontario Court of Justice.

73He was originally released on bail after a contested hearing with terms that amounted to house arrest. On at least two occasions through counsel he requested variations to his release terms to permit him to continue his education and to be outside his residence when accompanied by a surety. The Crown consented to both variations.

74Mr. Jama states that he and his family were subject to frequent late night curfew checks by Toronto Police that they found intrusive and annoying.

75The Applicant claims that the extended and unreasonable length of time it took to complete proceedings in the Ontario Court of Justice caused him to be sad, lonely and withdrawn. In particular, he felt very stressed and isolated when his evidence at the Preliminary Hearing proceeded on intermittent days commencing on May 20, 2011 and concluding on November 8, 2011. He testified in the chief on May 20, July 7 and September 8 of 2011. On that latter date he commenced his cross-examination. On September 26, 2011 his cross-examination was interrupted when an issue arose regarding late disclosure of telephone records. The court ordered an adjournment to permit counsel to review the records and further permitted counsel to meet with his client to discuss those records notwithstanding that he was in the midst of cross-examination. Cross-examination continued on October 11 and concluded on November 8, 2011.

76Mr. Jama claims that he has been unable to obtain suitable employment while awaiting trial due to the outstanding charges. He specifically indicates that on some job applications he has been asked whether he has a criminal record or outstanding charges. The latter question effectively disqualified him from pursuing otherwise suitable employment. He claims that the entire process has been frustrating and has simply worn him out.

77To his credit, Mr. Jama continued his education and in fact obtained a diploma in International Business from Seneca College at an accelerated rate while he was awaiting trial.

78The Applicant does not suggest that the chronology of these proceedings has impacted negatively on his right to full answer and defence in this case.

79In light of the very serious violent crimes that Mr. Jama faced it is not surprising that his release would include stringent terms that amounted to house arrest. The Crown by consenting to variations requested by the Applicant early on in the process has ameliorated the impact of those terms on his daily existence while he awaits trial.

80Most of the prejudice that Mr. Jama refers to flows from the very fact of being charged with these serious offences. There is specific evidence of prejudice by virtue of the interruption of his evidence at the Preliminary Inquiry. However, much of that time, in my view, is properly attributed to inherent time requirements of the case. Prejudice that flows from the nature of the charges and the inherent time required to complete the case is a factor but it is not determinative in terms of the ultimate balancing test that the court must engage in when assessing an application under s. 11(b) of the Charter.

societal interest

81There is a significant societal interest in a trial on the merits for the very serious charges faced by Mr. Jama.

conclusion

82The overall delay in this case was significant. For reasons stated the brunt of the additional time is fairly attributed to inherent requirements for the Preliminary Inquiry. The Applicant suffered some specific prejudice due to the length of proceedings. However, that prejudice did not flow from unreasonable delay in the particular circumstances.

83There is significant societal interest in these serious charges proceeding to trial.

84In balancing the various interests it is my view that a violation of s. 11(b) of the Charter has not been proven on a balance of probabilities.

result

85Application dismissed. I am grateful to both counsel for their thorough and fair presentation.

B. P. O’Marra J.