ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-90000342-0000

DATE: 20140404

B E T W E E N:

HER MAJESTY THE QUEEN

Eric Gilman for the Crown

– and –

TYRELL EVANS AND
JUSTINE REID

Trevin David for Tyrell Evans
Morrie Luft for Justine Reid

HEARD: March 14, 2014

RULING ON SECTION 11(b) CHARTER APPLICATION

CORRICK J. (orally)

Introduction

[1] Tyrell Evans and Justine Reid are jointly charged with possession of cocaine for the purpose of trafficking, possession of oxycodone for the purpose of trafficking, and possession of the proceeds of crime. They apply pursuant to s. 24(1) of the Charter for a stay of proceedings on the basis that their right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter has been violated.

[2] They were arrested on July 29, 2011. Their trial is scheduled to commence on April 22, 2014.

Overview of the Case

[3] On July 29, 2011, police seized 40.96 grams of crack cocaine, 11.38 grams of powder cocaine, 14 oxycodone pills, $14,655.00 in Canadian currency and $25.00 in U.S. currency during the execution of a search warrant in a residence in which both Mr. Evans and Ms. Reid were present. The target of the search warrant was Mr. Evans.

[4] I do not intend to refer to every court appearance. There are two significant periods of delay that are in dispute – the delay occasioned by two cancelled judicial pre-trials, and the delay in completing the preliminary inquiry. The Crown and defence counsel have charted all of the court dates in their material and I have read the transcripts of the proceedings from every date. The total time that will have elapsed between the date of their arrest and their scheduled trial date is almost thirty-three months.

[5] The day they were arrested, Mr. Evans and Ms. Reid were released on bail with the consent of the Crown. Ms. Reid appeared with counsel on her first post-bail court appearance on August 25, 2011. Mr. Evans had retained counsel by his second post-bail court appearance on September 29, 2011. Initial disclosure was made on November 17, 2011. Counsel for Ms. Reid conducted a Crown pre-trial. On December 12, 2011, counsel for Mr. Evans asked that the matter be adjourned to January 9, 2012 so that he could conduct a Crown pre-trial.

[6] The first contentious delay relates to two cancelled judicial pre-trials. On January 9, 2012, a judicial pre-trial was scheduled for January 26, 2012. Mr. Luft was going to conduct the pre-trial on behalf of both Mr. Evans and Ms. Reid, but was unable to do so in person, which is the normal practice. The morning of the scheduled pre-trial, he called the Judges' Secretaries Office to advise that he was unable to attend in person, and to provide his telephone contact information. The message was not received by the Crown and judge conducting the pre-trial, and the matter was adjourned to February 16, 2012. There is no evidence concerning the proceedings on February 16. On February 27, 2012, a judicial pre-trial was set for March 27, 2012. Defence counsel was unable to attend the pre-trial on March 27 due to a family emergency. A judicial pre-trial was held on April 24, 2012, following which a two-day preliminary hearing was set for January 28 and 29, 2013.

[7] The second contentious period of delay relates to the completion of the preliminary hearing. It commenced, as scheduled, on January 28, 2013. Officer Gillan, who was a necessary witness for committal, was ill with the flu and could not attend that day. After calling his other witnesses, Crown counsel sought an adjournment for Officer Gillan’s attendance. At a break in the proceedings on January 28, defence counsel asked the Crown to also call Officer McKnight, a witness that was not required for committal. Although defence counsel had listed Officer McKnight in its Statement of Issues filed with the court on May 22, 2012 as one of many officers it wished to hear from, he did not speak to Mr. Gilman directly about this request until the day the preliminary hearing started. Officer McKnight was not available on January 28. Defence counsel agreed that Officer McKnight would attend on the date scheduled to hear Officer Gillan’s evidence.

[8] The preliminary hearing was adjourned to continue a month later, on February 27, 2013. Prior to February 27, Mr. Gilman learned that Officer Gillan would not be available on that date. He had the matter brought forward to February 6, at which time May 1, 2013 was set to continue the preliminary hearing. This was the first date available for counsel and the judge. The preliminary hearing concluded on May 1, and the matter was remanded to the Superior Court of Justice on May 29, 2013.

[9] The matter proceeded fairly expeditiously in the Superior Court. A pre-trial was conducted and a trial date was set on July 3, 2013.

Applicable Legal Principles

[10] Any person charged with a criminal offence has the right to be tried within a reasonable time. This is guaranteed by s. 11(b) of the Charter. This protects the rights of the individual charged and of society, which has an interest in ensuring that criminal charges against people are promptly and fairly adjudicated.

[11] The analytic framework to be used to determine whether the time that elapses between the date a person is charged and the completion of the trial was set out by the Supreme Court of Canada in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771. A certain amount of delay is inevitable. To determine how much delay is reasonable the following factors must be considered:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

a. inherent time requirements of the case,

b. actions of the accused person,

c. actions of the Crown,

d. limits on institutional resources and

e. other reasons for delay; and

4. prejudice to the accused person.

[12] No one factor is determinative. It is not a matter of applying a mathematical formula. Rather, I am required to balance the interests that s. 11(b) is designed to protect against all of the factors that lead to the delay.

[13] The focus of the s. 11(b) analysis is Crown or institutional delay. The length of that delay is determined by deducting any defence, and neutral or inherent delay from the overall delay. What remains is generally Crown or institutional delay. The Supreme Court of Canada in R. v. Morin established a guideline of eight to ten months of acceptable Crown or institutional delay in the Ontario Court of Justice and a further six to eight months of Crown or institutional delay in the Superior Court of Justice.

[14] Mr. Evans and Ms. Reid bear the onus of establishing on a balance of probabilities that their rights have been violated.

Positions of the Parties

[15] The Applicants submit that 706½ days or approximately 23½ months of the delay are attributable to institutional and Crown delay. They further submit that they have suffered significant prejudice as a result of the delay.

[16] The Crown submits that the total institutional and Crown delay amounts to 18 months, which is within the guidelines set out by the Supreme Court of Canada in R. v. Morin. Furthermore, the Crown argues that any prejudice suffered by Ms. Reid and Mr. Evans has been the result of being charged with a criminal offence rather than the result of any delay.

[17] The disputed delays occurred in the Ontario Court of Justice. All parties agree that of the 329 days of delay in the Superior Court, 219 were the result of institutional delay.

Analysis

Length of Delay

[18] The overall delay is 999 days or nearly 33 months. Mr. Gilman properly conceded that the delay warrants judicial scrutiny.

Waiver of Time Periods

[19] Mr. Evans and Ms. Reid never explicitly waived their right to be tried within a reasonable time. Some delays were occasioned by their requests for adjournments, which I will deal with when I discuss the reasons for the delay.

Reasons for Delay

[20] As the parties agree about the allocation of responsibility for most of the periods of delay, I propose to deal only with those delay periods that are in dispute.

Provision of Disclosure; November 17, 2011 – January 9, 2012

[21] Initial disclosure was provided on November 17, 2011. Mr. Gilman agreed that the acceptable intake period to conduct bail hearings and provide disclosure in a case such as this is two months. He conceded that the disclosure was delayed for 49 further days for which the Crown is responsible. The defence took the position that the Crown was responsible for a further 53 days of delay between November 17, 2011 and January 9, 2012 because it had not disclosed the Information to Obtain the Search Warrant.

[22] A review of the transcripts does not support the submission that the failure to disclose the Information to Obtain the Search Warrant accounted for any delay between November 17, 2011 and January 9, 2012. On November 17, Ms. Reid appeared in court with an agent for her counsel. She received disclosure and her counsel asked that the matter be adjourned to December 12 so that a Crown pre-trial could be conducted. There is no transcript of the proceedings on November 17 regarding Mr. Evans.

[23] On December 12, 2011, both accused persons appeared by agent for their counsel. The agent indicated that it was the first appearance for counsel for Mr. Evans, and he asked that the matter be adjourned to January 9, 2012 so that a Crown pre-trial could be held. Ms. Reid’s counsel had already had a Crown pre-trial and was prepared to set a date for a judicial pre-trial.

[24] The matter was moving forward despite the fact that the Information to Obtain had not been disclosed. In my view, those 53 days are more properly allocated to neutral intake or defence delay. I have deducted them from the delay allocated as Crown or institutional delay by the defence.

Scheduling of Judicial Pre-trial; January 9, 2012 – April 24, 2012

[25] On January 9, 2012, an agent for counsel appeared on behalf of Mr. Evans and Ms. Reid, and informed the court that he had set January 26, 2012 for a judicial pre-trial. The matter was adjourned to that date. The defence submitted that of those 17 days, 13 should be allocated to institutional delay because counsel was prepared to conduct a judicial pre-trial on January 13. However, the presiding justice was not informed of that and no submissions were made seeking an earlier judicial pre-trial date. In any event, 17 days is not an unreasonable amount of time within which to schedule a judicial pre-trial, and I have deducted them from the delay allocated as Crown or institutional delay by the defence.

[26] The judicial pre-trial was scheduled for January 26, 2012. The defence counsel who was going to conduct it called the Judges' Secretaries Office the morning of the pre-trial and informed someone that he was unable to attend the pre-trial in person, but could conduct it on the telephone. He left his contact information. He was not contacted, the pre-trial was not held, and the matter was adjourned to February 27 to reschedule another pre-trial. There is no evidence before me about why another pre-trial was not scheduled on January 26, 2012. The transcript of the February 27, 2012 attendance indicates that the agent for both defence counsel attended and asked that the matter be adjourned to March 27 for a pre-trial. The first date offered by the trial office for the pre-trial was March 19. On February 27, the Crown provided further disclosure, and a pre-trial was scheduled for March 27, 2012. Counsel was unable to attend on March 27 due to a family emergency and the matter was adjourned to April 24, 2012 for a pre-trial.

[27] Defence counsel has characterized the delay of 61 days between January 26, 2012 and March 27, 2012 as institutional delay, and the 28-day delay between March 27, 2012 and April 24, 2012 as neutral delay. Crown counsel has characterized the entire 89 days as defence delay.

[28] In my view, the inability of defence counsel to attend the pre-trial scheduled for January 26, 2012 in person and the failure of the court to contact him cannot be properly characterized as institutional delay. This is particularly so when it appears from the record before me that the pre-trial was scheduled sometime during the morning of January 26, 2012, and counsel called the Judges' Secretaries Office sometime that morning to advise that he was unable to attend in person. The delay occasioned by this missed pre-trial is, at best, neutral delay. I have deducted 61 days from the delay defence counsel has allocated as Crown or institutional delay.

[29] It is noteworthy that the defence has characterized the delay occasioned by the failure of defence counsel to attend the pre-trial scheduled on March 27, 2012 because of an unforeseen family emergency as neutral delay. I agree with this characterization. I will return to this when I discuss the length of time required to complete the preliminary hearing due to the illness of a witness.

Completion of the Preliminary Hearing; January 29, 2013 – May 1, 2013

[30] The preliminary hearing was scheduled for two days on January 28 and 29, 2013. It commenced before Justice Green on January 28, 2013. All of the available witnesses were called that day. One of the witnesses necessary for committal, Officer Gillan, had the flu and was unable to testify. In addition, defence counsel told the Crown that morning that they wished to hear from Officer McKnight, who the Crown had not intended to call. Officer McKnight was also unavailable to testify that day.

[31] All counsel agreed that the matter would be adjourned to February 27, 2013 to hear from both officers.

[32] Defence counsel submitted that the 29-day delay between January 29 and February 27 is properly allocated as Crown delay. In their joint factum, defence counsel described Crown counsel’s conduct with respect to the adjournment of the preliminary hearing as dilatory. At paragraph 39 of the factum, defence counsel indicated that Crown counsel notified the court in the afternoon of January 28, 2013 that the remainder of the Crown’s evidence was unavailable that day or the next day despite having had the benefit of the officers’ schedules when the preliminary hearing date was set. This description of what happened on January 28 is inconsistent with the transcript of the proceedings on that day.

[33] At the outset of the preliminary hearing, Crown counsel informed the court that Officer Gillan was ill and that inquiries were being made about whether he would be well enough to testify on January 29. Once all of the evidence had been heard, other than that of Officers Gillan and McKnight, the presiding judge asked Crown and defence counsel to attend the trial coordinator’s office to arrange a date in the near future for a further two hours of court time. Defence counsel did not suggest that the matter return the next day to hear the evidence of Officer McKnight, but agreed to return on February 27, 2013 to hear both officers.

[34] In my view, this 29-day delay is more properly neutral delay. It was a delay occasioned by an unforeseen event – Officer Gillan’s illness. Criminal trials are very human processes, and from time to time, unforeseen events occur, such as illnesses and family emergencies, for which no one party can be faulted: R. v. Meisner, 2004 30221 (ON CA), [2004] O.J. No. 3812 (C.A.) Defence counsel submitted that Officer McKnight should have been available to testify on January 28 because they had indicated that they wanted to hear from him in the Statement of Issues and Witnesses they filed on May 15, 2012. There is no evidence before me about the use that is made of the Statement of Issues and Witnesses that is filed before a preliminary hearing is held. In my view, however, not much turns on this because Officer McKnight’s unavailability was not the root cause of the delay. Officer Gillan’s unavailability was. I have deducted the 29 days from the amount of delay defence counsel has allocated as Crown or institutional delay.

[35] Shortly after the preliminary hearing was adjourned to February 27, Crown counsel learned that Officer Gillan would not be available that day. He had the matter brought before the court on February 4 to set a new date for the completion of the preliminary hearing. May 1, 2013 was the new date set. The parties agreed that the Crown is responsible for the 31½ days of the delay between February 27 and May 1, while the other 31½ days were neutral or defence delay because of defence counsel’s unavailability.

[36] Mr. Evans and Ms Reid were committed for trial on May 1, 2013. They appeared in the Superior Court of Justice on May 29, 2013. A judicial pre-trial was conducted on July 3, 2013, and a trial date of April 22, 2014 was set. The parties agree that the delay of 219 days between September 16, 2013, the first date defence counsel were available to conduct the trial, and April 22, 2014, is properly allocated to institutional delay.

Conclusion on Attributable Delay

[37] Of the total delay, 670 days were occasioned in the Ontario Court of Justice, while 329 days of delay occurred in the Superior Court of Justice. Defence counsel submitted that 706½ days were attributable to Crown and institutional delay. I have found that 550½ days or 18.08 months are attributable to Crown and institutional delay. The Crown was responsible for 80½ days of delay – 49 days between September 29, 2011 and November 17, 2011 when disclosure was delayed; and 31½ days when the second date for the preliminary hearing had to be adjourned because Officer Gillan was not available. The remaining 470 days of delay were due to institutional delay.

Prejudice

[38] The focus of my analysis of the prejudice suffered by Mr. Evans and Ms. Reid must be on the prejudice arising from the delay and not on the prejudice arising from being charged with a serious criminal offence: R. v. Kovacs-Tatar, 2004 42923 (ON CA), [2004] O.J. No. 4756 (C.A.)

[39] In his affidavit and during his testimony before me, Mr. Evans described the toll these charges have taken on him. He indicated that the requirement to attend each court appearance personally has negatively affected his employment. His counsel was not willing to appear by designation for him. Mr. Evans knew that when he retained his counsel, but did not think the matter would carry on for so long. Eventually, he was asked to work fewer hours because his employer had to replace him when he had to attend in court.

[40] He also testified that these charges have had a negative effect on his relationship with Ms. Reid and with his son. His relationship with Ms. Reid began in 2009. They have one son. Since their arrest, their relationship has been strained. Currently they are co-parenting. Mr. Evans testified that when the charges have been dealt with, they will work on their relationship.

[41] Furthermore, the Children's Aid Society apprehended their son after they were arrested. He was returned to the care of Ms. Reid one week later. In December 2012, Mr. Evans gave up his rights to custody of his son in return for the removal of restrictions on his access to his son. He did this without legal advice because he wanted to be able to see his son without supervision as quickly as possible. The Children's Aid Society wanted to know the outcome of the charges before determining how much access to his son Mr. Evans should have. Mr. Evans testified that he decided to relinquish his custody rights because the charges had been outstanding for more than a year, and he did not know when they would be resolved.

[42] Mr. Evans also testified that having the charges hanging over his head for so long has been stressful and has caused him a great deal of anxiety.

[43] Finally, Mr. Evans testified that his memory of the events of July 29, 2011 has faded with time. He did not take any notes, and he is concerned that he will be unable to remember all of the details at his trial.

[44] Ms. Reid filed an affidavit and testified. She has no criminal record. At the time of her arrest, she was on maternity leave. She had been working in the child care field. In June 2012, she obtained a diploma in early childhood education from George Brown College. She has been unable to find employment in her chosen field because of the outstanding charges. In the child or youth care field, she must pass the vulnerable sector screening program before obtaining employment. She is unable to pass this program with charges outstanding against her.

[45] She is currently enrolled in the first year of a four-year degree program at Ryerson University in Child and Youth Care.

[46] In her affidavit, she described the stress she has experienced from having serious criminal charges outstanding against her. She has lost her self-confidence because she has been unable to find employment in her chosen field and provide financial stability for her son. She has become socially withdrawn. She felt unable to go to the United States with some of her friends for fear that she would be stopped at the border and questioned about the outstanding charges in front of people who did not know about the charges.

[47] She also indicated in her affidavit that her memory of specific details about the case has deteriorated over time and she fears that this will impact on her performance as a witness at her trial.

[48] I do not intend to minimize the stressful effect of being charged with serious criminal offences, particularly for a first offender. However, the prejudice Ms. Reid submits she has suffered due to the delay is, in my view, more accurately attributed to being charged. For example, her inability to pass the vulnerable sector screening program arose the day she was charged with these offences. Her inability to explain to her friends why she cannot travel to the United States or why she has not applied for a job in her field is due to the fact that she is charged. There is no evidence that she has attempted to find employment in another field.

[49] With respect to Mr. Evans, I do not accept that the abandonment of his custody rights to his son was the result of the delay in this case. He did this without legal advice and contrary to his mother’s advice, approximately 13 months after being arrested. He testified that he is currently co-parenting his son with Ms. Reid.

[50] During his evidence, he testified that the stress in his relationship with Ms. Reid was attributable to the charges. He also testified that it was difficult for him to find employment because of his criminal record. This difficulty cannot be attributed to the delay.

[51] I accept that the memories of both Ms. Reid and Mr. Evan will have declined somewhat over time.

Balancing Pursuant to s. 11(b)

[52] In the final result, I have found that the total of Crown and institutional delay was slightly over 18 months, which is at the top end of the range suggested by the Supreme Court of Canada in R. v. Morin for a case that is to be tried in the Superior Court. Of course, the guidelines are not limitation periods, and the reasonableness of a delay is not to be determined by a mathematical formula. Rather I am required to balance the factors set out in R. v. Morin with society’s interest in having criminal charges determined on their merits.

[53] These charges are serious. The devastation caused by the illicit drug trade to addicts, their families and the community at large is enormous. Society has a heightened interest in having such charges dealt with on their merits.

[54] Given that I have found that the total Crown and institutional delay only slightly exceeds the 18-month guideline set out in R. v. Morin, and that I have found that most of the prejudice suffered by Mr. Evans and Ms. Reid is a result of being charged, rather than due to the delay, I have concluded that Mr. Evans and Ms. Reid have not established that there has been a violation of s. 11(b) of the Charter in all of the circumstances. The application is therefore dismissed.

Corrick J.

Released: April 4, 2014

COURT FILE NO.: CR-13-90000342-0000

DATE: 20140404

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
TYRELL EVANS AND
JUSTINE REID

RULING ON SECTION 11(b) CHARTER APPLICATION
Corrick J.

Released: April 4, 2014