COURT FILE AND PARTIES
COURT FILE NO.: CR-13-0013-00MO
DATE: 2014-04-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Trisha Ann Pheasant
Accused
J. Schaffer, for the provincial Crown and
J. Chapman, for the federal Crown
Michael J.N. Haraschuk, for the Accused
HEARD: February 21 and March 7, April 7, 2014 in Gore Bay, Ontario
RULING ON MOTION FOR BREACHES OF SECTIONS 7 AND 11(B)
OF THE CHARTER
Del frate j.:
[1] The accused brings four additional motions. Two deal with breaches of sections 7 and 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) for unreasonable pre-charge and post-charge delay. In the other two motions, the accused seeks an order to remove one of the Crowns from acting as counsel at the trial. This motion did not proceed. The other motion seeks an order preventing the Crown from introducing statements made by the accused to her doctor.
[2] At the February 21, 2014 hearing, it was agreed that the section 7 application be postponed until after the evidence has been led at the trial should there not be a stay of proceedings. That process would allow the opportunity of assessing what prejudice if any would have accrued to the accused in delaying the laying of charges.
Background
[3] Although prior motions have outlined the alleged facts in the case, a brief summary is necessary.
[4] On or about August 8, 2010, Leslie Trudeau passed away as a result of an overdose of methadone which allegedly was prescribed to the accused Trisha Pheasant. The accused borrowed $20 from Mr. Arthur Trudeau and, as security, she gave him the methadone prescription with instructions that it be kept sealed and refrigerated. Somehow, the deceased got possession of this prescription and ingested it causing her demise.
[5] An investigation was conducted and statements were taken from a number of witnesses. Charges of unlawfully trafficking in a controlled substance and manslaughter were laid on December 9, 2011. On March 20, 2012, an additional charge of criminal negligence causing the death of Leslie Trudeau was laid.
[6] This matter was scheduled to proceed to trial on May 21, 2014, for two weeks. Recently the defence has indicated that it will bring a Kokopenace application to challenge the array of the jury panel. For the purposes of these motions, I limit my analysis to the dates mentioned at the start of my reasons being December 9, 2011, to June 5, 2014.
Chronology of Events
[7] The parties agree that for the purposes of this discussion the chronology as outlined in the Crown’s Factum as set out below be considered for the characterization of delay subject to my rulings:
Time Period
Reason for the Delay
Characterization of Delay
December 9th, 2011 to February 29th, 2012
The Accused was arrested, released on consent, and her matter was adjourned for the Accused to retain counsel.
82 days - Inherent Delay - Neutral
February 29th, 2012 to May 16th, 2012
Defence requested an adjournment to April 30th, 2012 in order to conduct a CPT on April 26th, 2012.
At the request of the Crown, the matter was adjourned to March 28th to attempt to obtain an earlier date.
However, on March 28th defence counsel was still not available until April 26th, 2012. As a result, the matter was adjourned to May 16th, 2012.
77 days - Defence Delay
May 16th, 2012 to July 18th, 2012
The Applicant requested an adjournment to June 20th in order to conduct a JPT on June 12th 2012.
However, due to some confusion on June 12th 2012, the JPT was rescheduled to June 21st 2012, and returnable in court on July 18th, 2012
63 days - Inherent Delay - Neutral
July 18th, 2012 to July 25th, 2012
The Applicant requested an adjournment to prepare her Statement of Issues
Seven days - Defence Delay
July 25th, 2012 to August 15th, 2012
Agent for defence counsel requested an adjournment to obtain dates from the Trial Coordinator for a five day preliminary inquiry.
This is defence delay because the Statement of Issues was still not completed until August 13th.
21 days - Defence Delay
August 15th, 2012 to August 29th, 2012
On August 15th, 2012 the matter was adjourned to August 29th, 2012 to allow for continuing efforts to obtain five consecutive days for the preliminary inquiry, and to allow the Crown to obtain witness availability for the Statement of Issues.
14 days - Defence Delay or Inherent Delay
August 29th, 2012 to January 9th, 2013
On August 29th, 2012, the preliminary inquiry was scheduled for five days - January 7th, 8th, 9th, 10th and 11th, 2013.
However, the matter was adjourned to September 19th, 2013 to confirm the dates.
The reason for this further adjournment was to allow the Crown to obtain witness availability for the four new witnesses requested by defence.
18 days - Defence Delay (confirm new witness availability - August 29 to September 16)
Three months - Preparatory/Inherent Delay (preparation for preliminary inquiry - September 16 to December 16)
24 days - Institutional Delay - December 16th to January 9th, 2013.
January 9th, 2013 to May 10th, 2013
The preliminary inquiry is completed in only three days, and the matter is then ultimately adjourned to permit time to render a decision, and arrange a date available to all parties.
Two months - Inherent Delay
Two months, one day - Institutional Delay
May 10th 2013 to June 4th, 2013
On May 10th the Applicant was committed to trial on all charges, and remanded to the Superior Court sittings on May 14th, 2013.
On May 14th, 2013, a JPT was scheduled for May 31st, 2013, with a return date of June 4th, 2013.
25 Days - Intake/Inherent Delay
June 4th, 2013 to July 9th, 2013
On June 4th, 2013, the trial and motion dates were not able to be set, as it appears that there was confusion between the parties as to which dates were to be pre-set. The matter was ultimately adjourned to July 9th, 2013 to locate more dates.
35 Days - Intake/Inherent Delay
July 9th, 2013 to August 13th, 2013
The Crown requested that dates for the motions and trial be set on that date.
The Trial Coordinator indicated that the last week of July and a week in August had been offered, but defence counsel was unavailable. As a result, the matter was adjourned to August 13th.
35 Days - Inherent Delay
August 13th, 2013 to May 21st 2014.
On August 13th, 2013, the following dates were set:
October 15th, 2013 - Certiorari
January 14th, 2014 - Disclosure/Voluntariness
February 21st - 11(b)/Abuse of Process
It was explained that October 24th was offered but unavailable to defence counsel, and that the "fall" and "winter" sittings had been offered to defence, but were unavailable, because both Mr. Keaney and Mr. Haraschuk desired to be present.
192 days - Inherent Delay
89 days - Institutional Delay
Position of the Parties
[8] The accused submits that a total of 910 days (approximately two-and-a-half years) elapsed between the date the initial charges were laid and the conclusion of the trial. Of these, 397 days (approximately 13.1 months) are inherent delay, and 513 days (approximately 17.2 months) are institutional and Crown delays.
[9] These parameters are outside the scope or range of what the Supreme Court of Canada states is acceptable in having a matter proceed to trial.
[10] The Crown’s position is that at most, the institutional delay is approximately six months and that the remainder of the time would be attributed to inherent delay or else delay on the part of the defence.
The Law
[11] Prior to analyzing and determining the time periods, a review of the jurisprudence is necessary. Section 11(b) of the Charter guarantees that: “Any person charged with an offence has the right … (b) to be tried within a reasonable time.”
[12] As stated by Justice Sopinka in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 at paras. 26‑29:
26 The primary purpose of s. 11(b) is the protection of the individual rights of accused. A secondary interest of society as a whole has, however, been recognized by this Court.
27 The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.
28 The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.
29 The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public.
[13] Morin goes on to state that in applying the section 11(b) guarantee to a trial within a reasonable time, a court is required to balance the following factors at para.31:
While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:
- Length of delay;
- Waiver of time periods;
- Reasons for the delay, including
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay; and - Prejudice to the accused.
[14] It must also be remembered that the accused has the onus of establishing these factors, although on occasion, the Crown may be called upon to explain an undue delay. In applying these principles, reasonableness must be considered to arrive at a fair decision: R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120, [1989] S.C.J. No. 119 at para. 28.
[15] R. v. Godin, 2009 SCC 26 cautions judges that the assessment is not strictly an application of a mathematical formula but involves the balancing of the interest that section 11(b) seeks to protect against factors that lead to or cause delay (para. 18).
[16] As stated in R. v. Allan, 1996 4011 (ON CA), [1996] O.J. No. 3175, 110 C.C.C. (3d) 331 at p. 345, affirmed in 1997 331 (SCC), [1997] 3 S.C.R. 700, a flexible and functional approach must be used and formulaic approaches must be strictly avoided.
[17] It must also be remembered that in determining the assessment of delay for the purposes of a stay application, the date commences with the laying of the charges and ends at the conclusion of the trial. Institutional delay commences when the parties are ready for trial but the system cannot accommodate them.
[18] Morin sets out the permissible scope of administrative delay 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.
Discussion
[19] A court must keep these time frames in mind. However, they are not set in stone. Although the section 7 breach of the Charter is not being argued at this time, the accused submits that the pre-trial delay is a factor which should be considered in this application in view of the anxiety, concern and stigma that she suffered prior to the laying of the charges.
[20] The accused testified that for approximately “a year or so” she was uncertain as to what would happen and felt shunned by the community in view of the rumors circulating. After the charges were laid, she put her life “on hold” due to the uncertainty of what would happen.
[21] Because of the nature of the case, the specifics must be considered in determining whether the pre-charge and post-charge delay was prejudicial to the accused.
Analysis
December 9, 2011 to March 28, 2012
[22] The parties agree that this period totalling 110 days is neutral or inherent delay.
May 16, 2012 to July 18, 2012
[23] The accused submits that this period totalling 63 days is institutional delay.
[24] On May 16, 2012, a judicial pre-trial was scheduled for June 12, 2012 and returnable on June 20, 2012. On June 12, the matter was placed on the courtroom docket in error and the information was not properly before the justice, resulting in it being struck from the list. A return date was requested on June 21, 2012 and it was set to July 18, 2012. I conclude that the days from May 16, 2012 to June 12, 2012, would have been an inherent delay required by the parties. (27 days of inherent delay).
[25] I also conclude that the period from June 13, 2012 to July 18, 2012 would have been institutional delay in view of the fact that the information was not properly before the justice. (35 days of institutional delay).
July 18, 2012 to July 25, 2012
[26] This period dealt with the defence completing a statement of issues and variations to the bail recognizance and setting dates.
[27] Although this could be considered defence delay, I conclude this to be inherent neutral delay so that counsel could get their affairs in order for the setting of the preliminary enquiry dates and also a date for a bail variation. (7 days of inherent delay).
July 25, 2012 to August 15, 2012
[28] This period dealt with the setting of dates. The defence was not prepared to proceed. (21 days of defence delay).
August 15, 2012 to August 29, 2012
[29] I would consider this to be an institutional delay since the court was not able to provide dates for the setting of the preliminary enquiry. (14 days of institutional delay).
August 29, 2012 to September 19, 2012
[30] This period dealt with the setting of dates for the preliminary and verification by the court to confirm the dates. In my view, this is institutional delay. (21 days of institutional delay).
September 19, 2012 to January 9, 2013
[31] This period would be considered an inherent delay since it is not expected that a preliminary or a trial would proceed immediately following the setting of the dates. Considering that five days were required for the preliminary hearing, it is a reasonable expectation that those five consecutive days would require some time to arrange for both parties to prepare their case for the preliminary. (112 days inherent delay).
January - May 2013 Broken Up as Follows:
January 9, 2013 to February 13, 2013
[