ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 12 70000 260 0000
DATE: 29131212
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DARYOUSH AKBARI
Lorna Spencer, for the Respondent
Irwin Aisen, for the Applicant
HEARD: November 29, 2013
dunnet j.:
charter RULING
Overview
[1] The applicant Daryoush Akbari has been charged with sexual assault and sexual interference. He seeks an order staying the proceedings against him pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms on the basis that his right to be tried within a reasonable time has been infringed, contrary to s. 11(b).
Summary of the Facts
[2] On March 8, 2005, the complainant told her school vice principal that she was alone in her mother’s apartment when the applicant, who was her mother’s boyfriend, approached her, reached under her shirt and attempted to reach into her pants. Police recorded the complainant’s statement on audiotape which has since been lost.
[3] The next day, the investigating officer received a telephone call from the complainant recanting her accusation against the applicant. After interviewing with the complainant’s mother and sister, the investigating officer recorded that the mother may have influenced her daughter into recanting her version of what had taken place. Police marked the occurrence report “unfounded.”
[4] On March 16, 2010, the complainant provided new information to the police and a video recorded statement was taken.
[5] On April 8, 2010 the applicant was arrested, charged and released on a promise to appear. His release contained an undertaking prohibiting him from being in the company of a person under the age of 16 years without the permission of the person’s parent or guardian.
[6] On this application, the applicant swore an affidavit stating that he is 55 years old and a Canadian citizen. He obtained a Master’s degree in chemistry from the University of Delhi and came to Canada in 1987.
[7] He married in 1990 and has two children. He has worked in a clothing factory and as a night clerk, manager of a convenience store and restaurant cook. In 2008 he acquired a pizza franchise.
[8] In his affidavit, the applicant states that his business has suffered financially because of the condition in his release preventing him from hiring teenagers under the age of 16 years and also as a result of court appearances that have required his attendance. He stated that he has given up socializing because of the shame and prospect of the charges becoming known.
[9] In 2003, the applicant and his wife separated. After the allegation against him was made in 2005, he resumed living with his wife. The charges became a new source of friction and their quarrels increased, resulting in a separation in 2013. Although he is living with his wife at the present time, he fears that his marriage may be coming to an end. In July 2013, the applicant was prescribed medication for depression. He did not tell his doctor about these charges because he was too embarrassed.
[10] In cross-examination, the applicant testified that before his arrest, he had hired 13 year old teenagers to work at his pizzeria, but because of the shame of the charges, he has been unwilling to telephone parents for permission to hire their children. He agreed that there is no condition preventing him from seeking permission from parents. He has not sought a bail variation.
[11] The applicant acknowledged that although designations were filed to obviate the necessity for him to attend court, he has voluntarily chosen to be in attendance.
[12] April 9, 2010: the Information was laid against the applicant.
[13] May 20, 2010: the matter was adjourned on consent.
[14] June 7, 2010: initial disclosure was provided and the matter was adjourned to allow the applicant to retain counsel.
[15] July 5, 2010: the matter was adjourned to allow the applicant to retain counsel and to schedule a Crown pre-trial conference.
[16] July 19, 2010: further disclosure was provided. Defence counsel asked for an adjournment to review the disclosure and schedule a pre-trial conference.
[17] August 16, 2010: defence counsel sought another adjournment to review the disclosure and set a date for a pre-trial conference.
[18] September 13, 2010: defence counsel had been formally retained and asked for time to review disclosure and arrange a pre-trial conference.
[19] October 18, 2010: a Crown pre-trial conference was held on October 15, 2010 and defence counsel asked for time to consult with the applicant.
[20] November 8, 2010: the applicant had retained new counsel who asked for a brief adjournment.
[21] November 15, 2010: a judicial pre-trial conference was set for December 9, 2010.
[22] December 9, 2010: a one day preliminary hearing was set for November 14, 2011. Defence counsel told the court that he had “numerous days well in advance of the dates being offered.” A hearing was set for September 13, 2011 for a third party records application.
[23] September 13, 2011: the third party records application was vacated. Defence counsel advised the court that the audio-video statements of the complainant, her mother and sister, were of poor sound quality and the Crown was preparing transcripts of the statements. The Crown advised the court that they would be in the hands of defence counsel well before November 14, 2011.
[24] November 14, 2011: the evidence of the complainant and her sister was completed in the morning. During the luncheon recess, the complainant’s mother disclosed to the Crown that after the charges involving the complainant arose, she was sexually assaulted by the applicant. Defence counsel asked for an adjournment to consider the new allegations. He acknowledged that the alleged sexual assault on the mother was a separate incident but submitted that he was uncomfortable with proceeding with the preliminary inquiry of the complainant without exploring the allegation of her mother.
[25] December 21, 2011: the cross-examination of the complainant’s mother commenced in the afternoon but did not finish because of a disagreement between counsel as to certain wording in the video statement. The preliminary hearing judge suggested that counsel complete the hearing at a later time.
[26] March 7, 2012: the preliminary inquiry was completed within an hour and the matter was adjourned to Assignment Court in Superior Court.
[27] April 25, 2012: the matter was adjourned to permit the applicant to retain counsel.
[28] May 16, 2012: the applicant sought another adjournment to retain counsel.
[29] June 13, 2012: a judicial pre-trial was set for July 16, 2013.
[30] July 16, 2012: the pre-trial conference was held and a seven day judge alone trial was set to commence on June 10, 2013.
[31] September 20, 2013: another pre-trial conference was conducted and the trial date was confirmed.
[32] January 4, 2013: the preliminary inquiry transcripts were available and the matter was adjourned to confirm the availability of the third party records.
[33] January 30, 2013: the matter was adjourned to deal with issues involving the third party records.
[34] February 5, 2013: third party records were provided to defence counsel and the matter was adjourned to be spoken to with respect to the third party records application.
[35] March 1, 2013: third party records were released to counsel for the complainant.
[36] March 7 and 8, 2013: the third party application was heard and the matter was adjourned to June 10, 2013 for trial.
[37] June 10 and June 11, 2013: the matter could not proceed because there was no court available.
[38] June 12, 2013: a new trial was set for January 27, 2014. The court offered July 22, 2013, but defence counsel was not available. Crown counsel advised the court that the complainant was travelling on that date and if counsel had been available, she would have made inquiries about whether the travel plans could be rescheduled. The first date available to the Crown was September 9, 2013. The first date available to the defence was September 30, 2013.
Analysis
[39] On an application under s. 11(b) of the Charter, the court is required to analyze the overall length of delay, waiver of any time periods, the reasons for the delay and prejudice to the interests of the applicant. The findings on each of these factors must then be balanced, taking into consideration the societal interest in a trial on the merits. See R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, at para. 31.
[40] The parties have agreed that the overall period of delay from the date the Information was sworn until the scheduled trial date is three years, nine months and eighteen days, which is of sufficient length to raise an issue as to its reasonableness. The parties have also agreed that there were no waivers. Thus, the two factors requiring analysis are the reasons for delay and prejudice.
[41] Reasons for delay may include the inherent time requirements of the case, actions of the defence, actions of the Crown and limits on institutional resources. Delay due to the inherent time requirements of the case is neutral and does not count against the Crown or the applicant.
(a) The delay between the laying of the charge and the preliminary inquiry
[42] Defence counsel acknowledged that while pre-charge delay does not factor into the calculation of unreasonable delay under s. 11(b) of the Charter, it may have an impact on the analysis of whether periods of delay after the laying of the charges are unreasonable. See R. v. McShane, 2013 ONSC 5645, [2013] O.J. No. 4021, at para. 4.
[43] Defence counsel argued that after the complainant’s recantation, the police failed to speak with the complainant. When the information was laid five years later, a fresh case of sexual assault became a historical case and this made it all the more important for disclosure to be forthcoming at the earliest opportunity.
[44] Counsel submitted that he raised the issue of the poor audio quality of the statements with Crown counsel in November 2010, and at the pre-trial hearing on December 9, 2010. By letter dated October 6, 2011, he asked Crown counsel when the transcripts of the video statements would be produced. He received the transcripts one week before the preliminary inquiry was scheduled to commence, which he contended was not “well before November 14.”
[45] On the weekend before the preliminary inquiry was scheduled to begin, Crown counsel reviewed the transcripts with the officer in charge of the case and on the morning of the preliminary inquiry, defence counsel was made aware of certain corrections to the transcripts. He asked the court for an hour to incorporate the changes into his copy.
[46] Crown counsel submitted that the delay between the laying of the charges and the preliminary hearing should be attributed to a neutral intake period where the applicant was completing his retainer and pre-trials were being conducted. It is submitted that disclosure was initially provided on June 7, 2010, well before defence counsel was retained. It was asserted that the intake period was longer in this case because the applicant required a significant period of time to fully retain counsel to conduct the preliminary inquiry.
[47] Defence counsel argued that half of the intake period should be attributed to delay occasioned by the Crown because of disclosure problems relating to the poor quality of the video statements.
[48] Transcripts were provided to the applicant one week before the preliminary inquiry. This gave counsel more than enough time to prepare for the one day preliminary inquiry. There was never any suggestion that defence counsel had difficulty proceeding with the preliminary inquiry on November 14, 2011, because of the transcripts. In my view, the position taken by defence counsel does not convert the accuracy of the transcripts into the Crown’s failure to provide disclosure in a timely way. In any event, the audio-video statements themselves were disclosed to the defence prior to the preliminary inquiry being set. Transcripts are an aid, but do not replace the prior statement upon which the witness can expect to be cross-examined.
[49] The delays in the first eight months were largely attributable to the neutral intake period. The parties were engaged in retaining counsel, taking instructions after the pre-trial conference, retaining new counsel and providing disclosure. This period of delay should not weigh against either party.
(b) The delay between setting the date for the preliminary inquiry and the commencement of the preliminary inquiry
[50] Defence counsel contended that the eleven month period between December 9, 2010, and November 14, 2011, should be attributed to systemic or institutional delay. He submitted that this was not a complicated case and he would have been ready almost immediately for the one day hearing.
[51] The position of the Crown is that nine months should be attributable to institutional delay and two months should be allocated to the inherent time requirements necessary for defence counsel to clear his schedule.
[52] This matter concerns sexual allegations involving a young person. The Crown’s case comprises the testimony of three witnesses, one of whom requires an interpreter. I do not accept that counsel would have been ready and available for trial as soon as he set the trial date. It is of no assistance for counsel to state that he was available “on numerous days well in advance of the hearing” without making it clear on the record when he would have been in a position to begin the preliminary inquiry.
[53] The time required for counsel to prepare and clear his calendar is part of the inherent time requirements of the case. I find it to be reasonable to allocate six weeks for defence counsel to clear his schedule and prepare for trial.
(c) The delay between the commencement and completion of the preliminary inquiry
[54] Defence counsel submitted that the delay between the commencement of the preliminary inquiry on November 14, 2011, and its completion on March 7, 2012, is attributable to Crown or institutional delay, given the late disclosure of the mother that she had also been sexually assaulted and the fact that on December 21, 2011, the judge gave priority to an in-custody case in the morning.
[55] It was submitted further that the poor sound quality of the mother’s statement gave rise to the necessity to adjourn the preliminary inquiry on December 21, 2011.
[56] The Crown asserted that the entire delay is attributable to the inherent time requirements of the case.
[57] The preliminary hearing was set for one day and defence counsel acknowledged at the outset that committal was not in issue. The evidence of the complainant and her sister was heard in the morning. The delay was a consequence of defence counsel making a strategic decision to adjourn the proceedings in order to explore the new allegation of the mother, which was unrelated to the charges before the court and had no bearing on whether or not the applicant would be committed for trial. The matter was adjourned in order to accommodate this new development.
[58] The continuation of the preliminary inquiry was set for three hours. Thus, it did not matter that an in-custody case was heard in the morning. When the inquiry resumed, the disagreement about the wording in the mother’s statement was resolved and her evidence was completed within an hour.
[59] In my view, the delay should not be laid at the feet of the Crown. It should be treated as part of the inherent time requirements of the case.
[60] There is no issue that the delay between March 7, 2012, when the applicant was committed to trial and July 16, 2012, when the parties were prepared to set a date for trial in Superior Court was due to the inherent time requirements of the case and considered a neutral intake. During this time, the applicant had to retain counsel; a pre-trial conference was conducted and the parties crystallized the issues for trial.
(d) The delay between setting the date for trial and the first trial date
[61] The position of the defence is that the delay between setting the trial date and the first trial is attributable to the inherent time requirements of the case, with the exception of three and one-half months, which should be attributable to systemic delay because of the Crown’s failure to order the preliminary inquiry transcripts when the matter first arrived in Superior Court.
[62] Defence counsel submitted that these transcripts were necessary for the third party records application and after they were ordered by the Crown, the time required for their production was excessive.
[63] By letter dated July 26, 2012, counsel for the applicant confirmed that he had ordered a second copy of the transcripts on the understanding that Crown counsel would order the first copy. Crown counsel ordered the transcripts in August 2012 and asked that they be available for February 1, 2013, in time for the third party records application scheduled for March 7, 2013.
[64] The position of the Crown is that this delay is attributable to the inherent time requirements necessary for the third party records application, which had to be set ninety days in advance of the trial.
[65] It was submitted that there was no obligation on the Crown to order the transcripts. It was a courtesy provided by the Crown to alleviate the applicant’s financial hardship by bearing the cost of the first copy.
[66] Crown counsel asserted that after the preliminary hearing, there was no request to order the transcripts and the fact that the applicant was unrepresented before June 2013, did not place the burden on the Crown to order the transcripts. It was submitted that it was always the understanding of Crown counsel that the applicant intended to retain defence counsel and needed time to fulfil his retainer. During that time, Crown and defence counsel were in communication. As soon as the retainer was complete, they arranged an early pre-trial conference.
[67] On July 16, 2012, Crown counsel advised the court that her first available date for trial was September 10, 2012. Given her awareness that defence counsel intended to bring a third party records application, she told the court that her first available date for that application was December 3, 2012. Defence counsel stated that he was not in a position to deal with the third party records application before he received the preliminary inquiry transcripts and his first available date for the application was March 7, 2013.
[68] It is clear from the record that defence counsel made the request of the Crown to order the transcripts at the time of the Superior Court pre-trial conference and dates were set for the third party records application and the first trial date on the same day.
[69] The timeframe for producing the transcripts was independent of who ordered them and defence counsel had made no effort to have the transcripts produced earlier. Further, this issue had no impact on whether defence counsel was first available to conduct the trial. In these circumstances, the delay between March 7, 2012, and June 10, 2013, is attributable to the inherent time requirements of the case and is neutral.
(e) The delay between the first and second trial dates
[70] Defence counsel submitted that the one and one-half month period between June 10, 2013, and July 22, 2013, and the four month period between September 30, 2013, and January 27, 2014, is attributable to institutional delay.
[71] It was asserted that it was incumbent on Crown counsel to ask the complainant to cancel her travel plans and advise the court whether the Crown was in a position to commence the trial on July 22, 2013, the first date offered by the court.
[72] Institutional delay starts to run when the parties are ready for trial but the system cannot accommodate them. The fact that the court offered July 22, 2013, for trial and that the complainant was travelling on that day is irrelevant because defence counsel was not available for trial until September 30, 2013.
[73] Thus, the period from June 10, 2013, to July 22, 2013, and from September 30, 2013, to January 27, 2014, is attributable to institutional delay.
[74] Accordingly, the institutional delay in this case is thirteen and one half months which is well within the acceptable amount of time attributed to lack of resources. See Morin.
Prejudice
[75] After the applicant was charged, he was immediately released from custody. Thus, his liberty interests have not been significantly affected. He acknowledged that there was no condition preventing him from seeking the permission of parents of young teenagers to work in his business and he has never sought to vary his bail. Although the applicant has been required to work longer hours, these charges have not prevented him from working.
[76] He has attended the court proceedings because he chose to do so, despite designations filed on his behalf.
[77] His marital difficulties arose before these charges were laid and it is clear from his evidence that his stress and anxiety are the result of the charges against him. The majority of the alleged prejudice can be attributed to the fact of being charged. Any prejudice caused to the applicant as a result of the delay is minimal.
[78] In these circumstances, the evidence of prejudice resulting from the delay is not strong. It is not the kind of prejudice that affects trial fairness or raises concerns that warrant a stay of proceedings.
Balancing societal interests in a trial on the merits
[79] This case concerns an alleged breach of trust involving the violation of the sexual integrity of a child. The allegations are serious and it is in the public interest to proceed to a trial on the merits. Balancing the delay with the seriousness of the charges, I do not find that the delay creates a constitutional violation of the applicant’s right to be tried within a reasonable time.
Disposition
[80] The total delay attributable to limitations on institutional resources falls below the guidelines set out by the Supreme Court of Canada in Morin. There is minimal prejudice attributable to the delay. Balancing the societal interest in having a trial on the merits in this case, I am of the opinion that there was no infringement of the applicant’s right to be tried within a reasonable time.
DUNNET J.
Released: December 12, 2013
COURT FILE NO.: CR 12 70000 260 0000
DATE: 29131212
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN (Respondent)
– and –
DARYOUSH AKBARI (Applicant)
C H A R T E R R U L I N G
DUNNET J.
Released: December 12, 2013