ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CR-263-12
Date: 2014-01-15
B E T W E E N:
HER MAJESTY THE QUEEN
John Chalmers, for the Respondent
Respondent
- and -
JOSHUA OWEN VANALSTINE
Craig T. Rogers, for the Applicant
Applicant
Heard: January 13, 2014,
at Perth, Ontario
Madam Justice B. R. Warkentin
Reasons on Application
[1] This decision deals with an application by the accused to have the charges against him dismissed for delay pursuant to s. 11(b) and 24(1) of the Charter of Rights and Freedoms. Accordingly, it is necessary to review the chronology of events in this proceeding.
[2] The applicant faces two counts of trafficking in cocaine and two counts of possession of cash not exceeding $5,000.00 obtained in the course of the commission of an offence. The trafficking is alleged to have taken place on August 31, 2011 and September 9, 2011 with the possession of the cash corresponding with those dates.
[3] Mr. Vanalstine was arrested and charged on October 26, 2011. He was released on bail the next day with a surety. He now brings this s. 11(b) application. There have been 5 separate trial dates scheduled, the first on January 28 and 29, 2013. Counsel for Mr. Vanalstine brought this application to dismiss the charges for delay after the most recent trial dates of September 19 and 20, 2013 did not proceed and the next available trial dates were January 13-15, 2014.
[4] The s. 11 (b) application was commenced on November 28, 2013 although notice of the intended application was provided to Crown counsel and the court at the October 29, 2013 Assignment Court where this case was placed when the September 19 and 20, 2013 trial was adjourned. Notice of the Application did not meet the required 90 day notice period; however that time frame was impossible in light of the impending trial scheduled for January 2014. The application was scheduled to be heard on January 13, 2014 with the trial to follow if the application was dismissed.
[5] The Crown filed a very brief response to the application denying that there had been any unreasonable delay or that the accused had suffered prejudice as a result of the delay.
Chronology
[6] This case is straightforward. It proceeded to a preliminary hearing in March 2012 with the indictment issued on April 4, 2012. At the first Assignment Court in the Superior Court on May 22, 2012 a Judicial Pre-Trial was scheduled and held on June 28, 2012. At the next Assignment Court of September 11, 2012 Mr. Vanalstine elected to be tried by Judge alone and the matter was scheduled for a 2 day trial commencing January 28, 2013. An earlier date in November 2012 was offered, but counsel for both parties were unavailable on such short notice.
[7] While both counsel informed the court that they were ready for trial on January 28, 2013, Crown counsel was unsure if the Crown witnesses would be available on the dates assigned. In November 2012 a new trial date of March 18 and 19, 2013 was assigned. The trial date was changed again on January 8, 2013 to May 6 and 7, 2013 but placed on the March 26, 2013 Assignment Court list for confirmation.
[8] To this point, defence counsel consented to the adjournments of the trial. There is no explanation for why these adjournments were required. For the purposes of this application the time periods to this point are considered neutral or part of the inherent nature of the case.
[9] On March 26, 2013 Crown counsel asked for a further adjournment of the trial because the lead undercover police officer, one of the main Crown witnesses, was unavailable on the assigned trial dates of May 6 and 7, 2013. The court offered new dates in August 2013. Defence counsel was available; however, Crown counsel was not. The trial was then scheduled to proceed on September 19 and 20, 2013. At the hearing on March 26, 2013, defence counsel expressed some concern about the time it was taking for this case to proceed to trial.
[10] At an Assignment Court on June 11, 2013 both defence counsel and the agent acting for the Federal Crown confirmed that they were ready for and agreed the trial would proceed as scheduled on September 19 and 20, 2013.
[11] The trial did not proceed as scheduled on September 19 and 20, 2013 for two reasons:
a) One of the Crown’s main witnesses was unavailable due to an unspecified illness, and
b) Defence counsel had been informed by a judge before whom he was appearing, the week prior to trial, that there was no judge available to hear this trial. As a result he did not complete his trial preparation.
[12] It is this set of events, from the adjournment of the May trial dates in March 2013, leading up to the September 19, 2013 trial date that has triggered this s. 11(b) application.
[13] It turned out that a judge had been assigned to hear the case as scheduled; however the assignment was made at approximately 4:00 pm on September 18, 2013. Crown counsel only learned about his witness’ illness on September 18, 2013. Defence counsel was not made aware of either event until the morning of September 19, 2013 at what was to be the commencement of trial.
[14] The trial did not proceed and the matter was placed on the October 29, 2013 Assignment Court list for a new trial date to be scheduled. By October 29, 2013 an additional day was added to the time requirement for the purpose of this s. 11(b) application.
[15] As of January 13, 2014, 27 months has passed since Mr. Vanalstine was charged.
Analysis
[16] With that recitation of the chronology leading up to this trial, I now turn to my analysis of the issues raised by the application.
[17] Section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") provides that every person charged with a criminal offence has the right to be tried within a reasonable time. The factors to be considered in determining whether an accused person's s. 11(b) rights have been infringed are set out in a number of cases however the leading case remains the Supreme Court of Canada case of R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771. There are four factors the court is required to consider:
a) the length of the delay;
b) whether the accused has waived any time periods;
c) the reasons for the delay, and
d) the issue of prejudice to the accused person.
[18] The right to be tried within a reasonable time is necessary for a number of reasons. First, to minimize the anxiety and stigma associated with being charged with a criminal offence. Second, to reduce the restrictions on liberty that may result from pre-trial incarceration and/or restrictive bail conditions. Third, cases should be heard while evidence is available and fresh. And fourth, it is in society's interest that trials are held within a reasonable time, so that those who commit crimes are dealt with fairly and according to law: see R. v. Morin, as above, at paras. 27-28 and R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45.
[19] In any s. 11(b) Charter application, the judicial process requires an examination of the length of the delay and conducts a balancing of the factors set out in Morin.
[20] In considering the applications for a stay of proceedings, I will address each of the four factors as set out above.
Length of Delay
[21] This case is different than most cases where s. 11(b) applications are brought for a couple of reasons. The first is that this is neither a difficult nor complex case. It was scheduled for 2 days. The second is that the matter is in a jurisdiction where cases proceed to trial expeditiously and rarely with any institutional or systemic delay. In fact, in the collective memory of those attending the hearing of this application, no one could recall a s. 11(b) application having ever proceeded in this jurisdiction.
[22] Counsel for the defence conceded that all of the time from the date the charges were laid on October 26, 2011 until the Assignment Court of March 26, 2013 when Crown counsel sought an adjournment of the May 2013 trial, a period of 17 months, was part of the inherent time requirements of the case and therefore neutral. Defence counsel argued that the delay became unreasonable after March 26, 2013.
[23] In this respect I disagree with the defence. If there was an unreasonable delay, it would only be after the first realistic trial dates of May 6 and 7, 2013 when the Crown was unable to proceed. The defence had agreed to the May dates and as such until May 2013, the delay of 18 and ½ months from when the charge was first laid to the May trial dates formed part of the inherent time requirements of the case.
[24] The delay then began with the Crown not being ready for trial on the scheduled dates in May 2013 due to the unavailability of a key witness. Because of the subsequent delay of a further 8 months until the trial dates in January 2014, an inquiry into the reasons for the delay is required.
Waiver of Time Periods
[25] Based on the recitation of the facts a set out above, I accept that Mr. Vanalstine did not waive any of the time periods after the May 6, 2013 trial was adjourned. He would have been ready for trial on May 6, 2013 but for Crown counsel having sought an adjournment of that trial date. Similarly, he would have been ready for trial on the September trial dates, had his counsel not been informed that the trial would not be proceeding.
Reasons for the Delay
[26] In light of the facts as I have found them, all of the delay from May 6, 2013 to January 13, 2014 is due to the unavailability of key Crown witnesses and/or the result of the court’s inability to try the case. A finding that these delays were caused by the Crown or by systemic issues within the court is not for the purpose of assigning blame to either the Crown or to the court, but is necessary for the investigation of the delay and to assist to ascertain whether the delay was reasonable or unreasonable.
[27] Counsel for the defence candidly acknowledged that had the trial proceeded in September 2013, there would not have been a s. 11(b) application. It is apparent that one adjournment due to issues with scheduling of Crown witnesses was not unreasonable. In fact, it was foreseeable. When the May 2013 trial dates were scheduled, the parties agreed to the March 2013 Assignment Court appearance for the express purpose of confirming that the Crown witnesses were available.
[28] I do not find that the adjournment to September 2013 in the circumstances of this case was an unreasonable delay. The question then, is whether or not the additional 4 month delay from September 2013 to January 2014 has moved this case into a situation where there has been an unreasonable delay.
[29] The cause for the additional 4 month delay was twofold. Defence counsel, apparently erroneously, was informed by a judge during the course of another court proceeding that there was not a judge available to try the case. In fact, there was a judge assigned to the case, albeit, only at the end of the day prior to the start of the trial. This issue was overshadowed by the fact that a key witness for the Crown was unavailable because of a serious illness. The Crown was put in the position of having to seek an adjournment as a result.
Prejudice to the Accused
[30] The onus is on the accused to establish prejudice, although in some circumstances prejudice may be inferred from the length of the delay.
[31] In this case, prejudice can be inferred in part due to the time that has passed. A period of 27 months for a matter such as this to get from arrest to trial is excessive in this jurisdiction.
[32] Justice Cromwell in the Supreme Court of Canada case of R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3 stated at paras. 31 and 34:
The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn."
[33] Prejudice can be considered from several perspectives: (i) the liberty interest - that is, the prejudicial effect of delay on the liberty of the person accused of a crime; (ii) the fair trial interest - the prejudicial effect of delay on the ability of the accused person to obtain a fair trial; and (iii) the security of the person interest - the prejudicial effect of delay on individual security. It is reasonable to infer that delay will have some impact on the ability of the accused person to obtain a fair trial, since memory diminishes over time. It may also be reasonable to infer some impact on the security interest, due to the anxiety produced by having criminal proceedings outstanding for an extended period of time.
[34] In his affidavit, Mr. Vanalstine claimed that he has lost custody of his child as a result of Children’s Aid Society proceedings due to these charges and the fact that they have been unresolved. He claims to be living in poverty and unable to work because of the bail restrictions and the imposition on his surety.
[35] Mr. Vanalstine also stated that the delay has had an effect on his ability to make a full answer and defence and has resulted in significant financial costs that he will never be in a position to recover.
[36] Crown counsel noted that the bail conditions were sufficiently flexible to permit Mr. Vanalstine to work and did not interfere with his security in any significant manner.
[37] Some of the stress or anxiety to which Mr. Vanalstine refers is attributable to being subjected to criminal proceedings and these charges and are not part of the prejudice analysis.
[38] The Crown did not call evidence to rebut Mr. Vanalstine’s affidavit evidence nor did counsel seek to cross-examine the affiant. I am satisfied that Mr. Vanalstine suffered some moderate degree of actual prejudice in respect of his fair trial and security interests; the individual interests that s. 11(b) is designed to protect.
Calculation of the Delay
[39] As already set out, I have found that until May 6, 2013, the delay was neutral. In discussing the issue of how time periods between the date of the laying of charges until the date of trial should be assigned when considering s. 11(b) applications, Justice Nordheimer in the case of R. v. Sikorski, 2013 ONSC 1714, [2013] O.J. No. 1654 stated at paragraphs 84-86:
84 I take the opportunity at this point to observe that there is some confusion in the s. 11(b) case law as to the proper time period to which the guidelines apply. Some cases apply the guidelines to the total time between arrest and trial and others apply them only to the period where the parties are ready to set dates and those dates are actually set. Some cases appear to blend the two. While the confusion is understandable given the language used in many of the cases, it appears that the correct approach is to take the total period of time between arrest and trial, deduct from that period the time for which the defence is responsible, further deduct the intake periods and the inherent time requirements of the case and then compare the remaining time period with the guidelines to determine its reasonableness. I take this to be the proper approach based on my reading of the Supreme Court of Canada's most recent discussion of the subject in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3.
85 In this case, I contrast the total time in the guidelines in Morin for a two-stage proceeding of fourteen to eighteen months and compare it to the total time that it has taken this case to get to trial. That contrast demonstrates that this case has taken more than twice the period set out in the guidelines. However, as Cromwell J. said in Godin, at para. 5:
It is clear that these guidelines were substantially exceeded in this case. That, on its own, does not make the delay unreasonable.
86 Rather, as I have said, one has to deduct from the total period of delay those portions of the delay that are attributable to matters that are either neutral in the s. 11(b) analysis or for which the defence is responsible. Employing this approach, and with reference to the allocations I have set out above, the neutral time periods constitute almost 11 months, delays caused by the defence total 9.5 months and the institutional delay is equal to 19 months, which is just one month above the outside limit of the Morin guidelines.
[40] In applying the approach set out by Justice Nordheimer in Sikorski, the delay that is not attributable to inherent, or neutral time is at most 8 months. This is within the limits considered by Morin.
Balancing
[41] In balancing the factors, it is necessary to balance the interests of the accused with the societal interests in having a trial proceed on the merits, bearing in mind the total length and the causes of the delay.
[42] Justice McLauchlin stated in her concurring judgment in Morin at p. 810:
The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.
[43] In conducting the balancing process, it is accepted that the community's interest in seeing that persons are properly tried on any criminal charge increases as the seriousness of the charge increases. The balancing process under the s. 11(b) analysis recognizes that criminal offences involve differing degrees of seriousness. The charges in this case while serious, are not the most serious charges under the Criminal Code.
[44] The 8 month period of delay in this case that might be considered unreasonable, beyond those necessary for the inherent time requirements, is within the limits of the Morin guidelines. In my view, notwithstanding the prejudice that Mr. Vanalstine has suffered as a consequence of the overall delay, the relatively short period of unreasonable delay is greatly outweighed by the societal interest in having these fairly serious charges determined on their merits.
[45] I have therefore concluded that the applicants' rights under s. 11(b) of the Charter have not been infringed. The application is dismissed.
Madam Justice B. R. Warkentin
Released: January 15, 2014
COURT FILE NO.: CR-263-12
DATE: 2014-01-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JOSHUA OWEN VANALSTINE
Applicant
REASONS ON APPLICATION
Warkentin J.
Released: January 15, 2014