ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-09-205
DATE: 2013 12 17
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
CHRISTOPHER FOLLOWS
Applicant
Arish Khoorshed, for the Crown
John Norris, for the Defence
HEARD: November 29, 2013 at Milton
Judgment: December 17, 2013
RULING
André J.:
[1] The sole issue in this application is whether the 63 month delay period between October 5, 2008, when the police charged Mr. Follows with a number of sexual assault charges and his retrial scheduled for January 2014, has violated his s. 11(b) Charter rights. Mr. Follows insists that it has, given the enhanced prejudice that he has suffered and the fact that 42 months of the overall delay is either institutional or Crown delay. The Crown, on the other hand, maintains that a mere 22 months of the delay can be attributed to institutional delay and that given the virtual absence of prejudice and the inherent time requirements of this case, Mr. Follows’ s. 11(b) rights have not been infringed.
[2] For reasons outlined below, I find that Mr. Follows’ s. 11(b) Charter rights were not infringed in this case.
OVERVIEW
[3] The police authorities charged Mr. Follows with a number of sexual assault and invitation to touch for a sexual purpose charges after receiving complaints from two sisters about alleged incidents when they worked as nannies in Mr. Follows’ residence in 1997 and 2001. The police released Mr. Follows on an undertaking and a promise to appear. Mr. Follows later elected to be tried by a Superior Court judge sitting with a jury. He was committed to stand trial following a preliminary hearing on November 2 and 5, 2009.
[4] Mr. Follows’ first trial, which commenced on February 14, 2011, ended in four convictions registered against him. The matter was adjourned to September 22, 2011, for sentencing. Mr. Follows was sentenced to 4 ½ years imprisonment. He appealed his conviction on September 30, 2011, and was released from custody pending the hearing of his appeal. The Court of Appeal overturned his conviction on March 4, 2013. Mr. Follows adjourned the matter to July 3, 2013, when the court scheduled his retrial for January 20, 2014.
[5] Mr. Follows has claimed that the delay in this matter has increased his stress, court costs, and has prevented him from travelling to the United States to conduct his business.
ANALYSIS
[6] Both parties agree that the delay in this case is sufficiently long that an inquiry is necessary to determine whether or not s. 11(b) has been violated and a stay of the charges is warranted.
[7] The parties also agree that assessing the delay for the purposes of s. 11(b) involves a balancing of the following factors from Morin v. The Queen, 1992 89 (SCC), (1992) 71 C.C.C. (3d) 1 (S.C.C.) at 25:
(1) The length of the delay.
(2) The reasons for the delay.
(3) Waiver of any time periods.
(4) Prejudice to the accused.
[8] Furthermore, there is no dispute that there is, in virtually every case, a societal interest in ensuring that matters should best be adjudicated on their merits and that in some cases, this consideration may trump the other factors that must be balanced in deciding whether or not Mr. Follows’ s. 11(b) rights have been infringed.
[9] For analytical purposes, the relevant time periods in the chronology of court appearances in this matter are as follows:
(1) Oct 5, 2008 to February 17, 2009
(2) February 17, 2009 to November 2, 2009
(3) November 5, 2009 to December 7, 2009
(4) December 7, 2009 to March 1, 2010
(5) March 1, 2010 to June 18, 2010
(6) June 18, 2010 to February 14, 2011
(7) February 14, 2011 to September 22, 2011
(8) September 22, 2011 to March 4, 2013
(9) March 4, 2013 to June 3, 2013
(10) June 3, 2013 to January 20, 2014
DELAY PERIOD ONE
[10] The applicant first attended court on November 7, 2008. He remanded the matter to December 8, 2008, and then to January 19, 2009, to set a preliminary hearing date. The applicant further adjourned his matter to February 17, 2009, to enable him to have a resolution meeting.
[11] This delay period is clearly neutral, part of the inherent requirements of the case. Within it, the applicant adjourned his matter to take the necessary steps before setting a date for a preliminary hearing.
DELAY PERIOD TWO
[12] On February 17, 2009, the applicant adjourned the matter to July 31, 2009, for a judicial pretrial. The parties set trial dates of November 2, and November 5, 2009.
[13] The parties had a judicial pretrial on July 31, 2009. They then confirmed November 2 and 5, 2009, for a preliminary hearing.
[14] How should this delay period be attributed? A portion of the delay period between February 17, 2009, and November 2, 2009, must be construed as institutional delay. However, neither the Crown nor the applicant can be assumed to have been ready for the hearing on February 17, 2009. The complainants reside in Europe and arrangements were required to be made to return them to the jurisdiction. This is significant given that the institutional delay clock only commences running from the date both parties were available for trial or a preliminary hearing. R. v. Lahiry, 2011 ONSC 6780, at paras. 29-34; 109 O.R. (3d) 187; R. v. Tran, 2012 ONCA 18, at para. 32.
[15] Mr. Follows’ counsel submits that these cases arose after the preliminary hearing dates were set in February, 2009 and therefore should not be relied upon by the court in computing institutional delay in this case.
[16] I disagree. In the 1992 case of Morin v. The Queen, Sopinka J. at page 27 described institutional delay as “the time from which the parties were ready for trial until the point at which the courts were able to accommodate the case.”
[17] The applicant, who bears the burden, on a balance of probabilities, to prove that his section 11(b) rights have been infringed, presented no evidence indicating how soon after February 17, 2009, he was ready for his preliminary hearing. Neither did the Crown.
[18] In my view, at least two months of the delay period between February 17, 2009, and November 2, 2009, must be regarded as part of the inherent time requirements of this case. It simply cannot be assumed, unless I subscribe to the view that defence counsel is perpetually available, that the applicant was ready for his two day preliminary hearing on February 18, 2009.
[19] Accordingly, the institutional delay within this delay period is five and half months, which is the seven and a half months less two.
DELAY PERIOD THREE
[20] Following the committal to stand trial on November 5, 2009, the court remanded the applicant to the set date court in the Superior Court of Justice on December 7, 2009.
[21] This delay period is neutral, a necessary step to be taken in any matter following a preliminary hearing.
DELAY PERIOD FOUR
[22] On December 4, 2009, the applicant adjourned the matter to January 4, 2010, because his counsel wished to discuss the matter with the Crown before setting a trial date. On the latter date, he adjourned the matter to March 1, 2010, for a judicial pretrial.
[23] These adjournments were requested by the applicant. They were necessitated by his counsel’s desire to have further discussions with the Crown and indeed with a judge. To that extent, this delay period must either be construed as neutral or attributable to the applicant.
DELAY PERIOD FIVE
[24] Following the March 1, 2010, judicial pretrial, the parties remanded the matter to March 19, 2010, to set a date for a continuing judicial pretrial. On this date, the applicant’s counsel sought to adjourn the matter to December, 2010. Following the Crown’s objections, the applicant adjourned his case to April 9, 2010 to be spoken to.
[25] The applicant adjourned his case on April 9, 2010, to May 21, 2010, and further to June 18, 2010, because his counsel was having discussions with the Crown. This delay period must be construed as defence delay. Significantly, a trial date could likely have been set on March 1, 2010, but for the applicant’s desire to have ongoing discussions with the Crown.
DELAY PERIOD SIX
[26] On June 18, 2010, the parties set a trial date of February 14, 2011. There is no indication whether the applicant was prepared for his trial on June 19, 2011, or shortly after. If he did, his counsel never alerted the court that he had trial dates earlier than February 14, 2011.
[27] For reasons already noted, it simply cannot be assumed that both the applicant and the Crown were ready for their trial on June 18, 2010. The complainants had to be subpoenaed and returned to Canada. The applicant had to be prepared to give evidence at his trial, moreso given that the allegations date back to 1997 and 2001. The evidence at the preliminary hearing had to be reviewed.
[28] In my view, at least two months of this delay period must be regarded as part of the inherent time requirements of this case. Accordingly, of the approximately eight months of delay within this period, I attribute six months to institutional delay.
DELAY PERIOD SEVEN
[29] Following the applicant’s conviction on four counts on the indictment he adjourned the matter to March 1, 2011. The applicant requested a pre-sentence report and the court adjourned the matter to June 3, 2011. The matter was subsequently adjourned to September 22, 2011, for the sentence hearing given that the judge was unavailable on June 3, 2011.
[30] At the very minimum, the delay from March 1, 2011, to June 3, 2011, was either neutral or defence delay.
[31] The additional delay was caused by the unavailability of the trial judge. There is no indication why the judge was unavailable. If it was due to illness, then the delay would be construed as neutral delay. Absent any explanation why the sentencing did not proceed before the trial judge on June 3, 2011, the 3.75 months delay must be construed as institutional delay.
DELAY PERIOD EIGHT
[32] Within this period, the applicant successfully appealed his convictions to the Court of Appeal. For the purposes of s. 11(b) the applicant was no longer charged with an offence; he was convicted of four of the offences on the indictment. To that extent, the time period cannot be factored into an analysis of the relevant periods of delay for a determination of whether s. 11(b) has been infringed. R. v. Hayes, [2003] O.J. No. 4590, at para. 43.
[33] In limited circumstances such as where appellate delay causes “real prejudice” affecting trial fairness, thereby violating s.7 of the Charter, a remedy for such delay is available. R. v. Potvin 1993 113 (SCC), [1993] 2 S.C.R. 880; 83 C.C.C. (3d) 97 at 111. However, no such prejudice exists in this case. The prejudice Mr. Follows is complaining about has not affected his right to make full answer and defence to the charges laid against him.
DELAY PERIOD NINE
[34] On March 4, 2013, the applicant remanded his matter to May 10, 2013, and then to June 3, 2013. This period is defence delay.
DELAY PERIOD TEN
[35] The first available trial date for the retrial was January 6, 2014. The applicant however, was not available. There is no indication that the trial could have been accommodated on an earlier trial date neither is there any indication that the applicant inquired about an earlier date, let alone express a need to have such a date.
[36] Furthermore, the applicant’s counsel made no mention on June 3, 2013, of the earliest date he would be ready for the trial. The applicant’s present counsel first became involved with the case at the appeal level. He also would have been required to do extensive preparation for a trial scheduled for five days. It is highly unlikely that he would have been prepared for trial before two months following June 3, 2013. Therefore, two months of the approximately 6.5 months delay, must be regarded as part of the inherent time requirements of this case. Institutional delay within this period is 4.5 months.
TOTAL INSTITUTIONAL DELAY
[37] The total amount of institutional and Crown delay in this case is approximately nineteen and three quarter months.
PERMISSIBLE DELAY PERIOD
[38] The tolerable period of institutional delay in the Ontario Court of Justice is 8 to 10 months for an uncomplicated case and an additional 6 to 8 months in the Superior Court of Justice, R. v. Morin. These periods are merely administrative guidelines which should not be applied as a mathematical formula.
[39] In my view, this administrative guideline must be extended upwards in cases where a new trial has been ordered after a successful appeal. Even if the matter is fast tracked, the justice system, which does not operate on a basis of instant accessibility, requires a reasonable amount of time to reschedule the trial. While it may be argued that an earlier trial date could have been provided, the availability of a trial date seven months after the set date for a five day trial in a busy jurisdiction cannot be regarded as unreasonable.
PREJUDICE
[40] Given the applicant’s form of release following his arrest, his liberty interests were minimally affected. Furthermore, on September 30, 2011, he was released from custody after he filed an appeal of his conviction. The U.S. Customs barred him from entering the United States only after he was convicted.
[41] The applicant identified the following as the prejudice he has suffered due to the delay in this matter:
(1) The prospect of going to jail engendered a significant amount of stress.
(2) His legal costs have escalated.
(3) His freedom to travel to the United States was severely limited following his conviction.
[42] The stress caused by the applicant’s fear of going to jail is attributable not to the delay in this case but to the fact that the applicant was charged.
[43] Secondly, it is clear that the applicant’s legal costs escalated when he appealed his conviction and the Crown’s decision to proceed with a new trial and the upcoming retrial. To that extent, they cannot be attributed to the delay in this case.
[44] Thirdly, the fact that the U.S. customs authorities barred the applicant from entering the U.S. cannot be blamed on the delay in this case; it resulted from the applicant’s conviction.
[45] While a certain degree of prejudice can be inferred in this matter, given the overall length of delay, there is a minimal degree of real prejudice which is referable to this delay.
BALANCING THE FACTORS
[46] The overall period of institutional delay falls within the administrative guidelines set out in Morin. While there has been no waiver of any delay periods, the applicant manifested a certain degree of contentment with the pace of the proceedings and never expressed any concerns over the delay in this matter. Furthermore, the degree of real prejudice suffered by the applicant on account of the delay is minimal at best. Additionally, given the seriousness of the charges, the societal interest in ensuring that these matters are adjudicated on their merits is significant in this case.
CONCLUSION
[47] For the above reasons, the applicant’s s. 11(b) Charter rights were not infringed by the delay in bringing this matter to trial. Accordingly, the application is dismissed.
André J.
Released: December 17, 2013
COURT FILE NO.: CR-09-205
DATE: 2013 12 17
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER FOLLOWS
RULING
André J.
Released: December 17, 2013