ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-90000 716-0000
DATE: 20140619
BETWEEN:
AHMED HUSSEIN
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
Andrew Stastny, for the Applicant
Hafeez Amarshi, for the Respondent
HEARD: May 29, 2014
MCWATT J.
RULING SECTION 11(b) CHARTER MOTION
[1] Ahmed Hussein applies for an Order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms staying the proceedings against him due to a violation of his right to be tried within a reasonable time pursuant to s. 11(b) of the Charter.
[2] The case involves charges of Possession of Cocaine (2 oz.) for the Purpose of Trafficking and Possession of Proceeds of Crime ($660 CDN). Based on a tip from a confidential informant, police executed a Controlled Drugs and Substances Act search warrant at 25 Henry Lane Terrace, unit 529, Toronto. The applicant was located sleeping in the bedroom and was the sole occupant at the time the warrant was executed. Crack cocaine was located in a men’s pant pocket in the bedroom, which the Crown alleges belonged to the applicant. Cocaine was also located in the kitchen. Police located various documents in the name of Mr. Hussein in the living room, including a tenancy agreement in his name for that address.
[3] The issue in this case is a narrow one as counsel for the defence and the Crown agree to most of the time taken to get to trial. A summary of their time lines for this case is contained in the chart below and it is not necessary, as a result of counsels’ consensus, to review them in this ruling. The agreement ends at the time period listed at #9 of the chart, but the difference between the two parties’ positions boils down to 39 days.
Start Date
End Date
Event
Reason
Delay (days)
Allocation
July 21/11
July 22/11
Bail
Accused released on a recognizance.
2
Intake/ Neutral
July 22/11
Sept 13/11
Setdate
Initial disclosure provided Prepare disclosure & retain counsel. This case is more complicated than a straightforward drinking and driving matter therefore 90 days is an appropriate period of time for the completion of these tasks. Disclosure involves confidential informant information and studied redactions.
53 (R. v. Lahiry – re: inherent time requirement at the outset of charges)
Intake/ Neutral
3/4.
Sept 13/11
Nov 10/11
Intervening setdate appearance on Oct 13/11 to allow more time for the accused to retain counsel
Period for the accused to retain counsel.
58 days
Intake/Neutral
Nov 10/11
Dec 5/11
Counsel attends on Nov 10 and confirms he is retained but has not received disclosure from his client. Despite the accused having disclosure since mid-September he does not provide it to his counsel until the next set date appearance on December 5.
25 days
Defence
6/7.
Dec 5/11
Jan 31/12
Crown pre-trial conducted. Intervening setdate appearance on Jan 10/12 adjourned at the request of the defence.
Period to conduct Crown and Judicial pre-trial.
All matters require a Crown pre-trial before proceeding to trial.
57 days (R. v. Tran re: Crown and Judicial pre-trials are deemed neutral)
Inherent/ Neutral
Jan 31/12
Feb 8/12
Defence prepared to set a date for a preliminary hearing. Crown brief is missing.
8 days
Crown
Feb 8/12
April 8/12
Defence readiness period
Counsel for Hussein puts on the record his first available dates for a preliminary hearing is February 16, within a week of the last setdate.
60 days
Defence readiness (R. v. Lahiry, R. v. Tran
Inherent/ Neutral
April 8 /12
Sept 20/12
When defence is ready to proceed but court date is not available
First available preliminary hearing date offered by the court. Both Crown and defence are available.
166 days (5 ½ months)
Institutional
Sept 20/12
Oct 9/12
Preliminary hearing not completed on the first date. Matter returns October 9 to complete evidence. Accused committed for trial.
19 days
Institutional
SUPERIOR COURT OF JUSTICE PROCEEDINGS
October 9/12
November 28/13
First appearance in Assignment Court
50 days
Inherent/
Neutral
Nov 28/12
December 12/13
Practice Court appearance
Judicial pre-trial held and date for trial set
14 days
Inherent/
Neutral
Dec 12/13 2013
Sept 23, 2013
Practice court appearance – trial date set
Trial date set for September 23, 2013.
i) Defence availability begins March 4, 2013
ii) Date when the defence is ready to the first date provided by the court
September 23, 2013.
i) Defence readiness/availability (neutral): 82 days (Dec 12, 2013 to March 4, 2013)
ii) Institutional delay: 203 days (March 4 to Sept 23 - 6 months & 19 days)
Inherent
Institutional
Institutional
Sept 23/13
Feb 4/14
On September 23 the matter could not be reached and a second date for trial was fixed for Feb 4, 2014.
Matter not reached on the first trial date. A second trial date is fixed for February 4, 2014.
135 days
(Sept 23, 2013 to Feb 4, 2014)
Institutional
Feb 4/14
May 29/14
Prior to Feb 4, 2014 the defence advised they will be bringing an 11 (b) application. The matter did not proceed on Feb 4 as was adjourned for the defence to be able to file transcripts in support of the application. A hearing date was set for May 29.
The period of delay between Feb 4 and May 29 was expressly waived by defence
Neutral
Defence waiver
[4] The total delay in this case is approximately 31 months. The applicant submits that due to unjustifiable institutional or mixed institutional/Crown delay of 19 months, which falls outside the Askov [1990 CanLll 45 (SCC)] and Morin [1992 Canlll 89 (SCC); 1992 89 (SCC), [1992] 1 S.C.R.771] guidelines of 14 to 18 months as a reasonable time for reaching a Superior Court trial, the charges should not proceed.
[5] I accept that the delay at issue in this case is 19 months. The area of contention between the parties arises on February 8, 2012 at the Provincial Court when defence counsel provided his first available dates for a Preliminary Inquiry as February 16 or within a week of the set date. The system, however, could not accommodate the hearing until September 20, 2012. The Crown contends that a 60 day period of Inherent or Neutral time should be inferred during the period of February 8 to April 8, 2012 because of the case of R. v. Lahiry, 2011 ONSC 5780 (Ont. S.C.J.) and R. v. Tran, 2012 ONCA 18 (O.C.A.). If I were to accept the 60 day period of neutral time, then the case would have come to trial inside the 14-18 month guideline period.
[6] The reason that I am not prepared to accept the 60 day neutral period proposed by the Crown is that, unlike the case of Lahiry, counsel for Mr. Hussein did set out his trial readiness. The defence also filed a “Dawson” application to cross-examine the affiant of the information to obtain the search warrant used to search Mr. Hussein’s home in the form of a statement of witnesses and issues. An actual application had not been filed by the defence, however, the Crown accepted the materials filed with the proviso that an actual application would be properly filed. The Criminal procedure rules, at the time, allowed for defence to file its Charter application 15 days prior to the application and not 30 days as is the case since July 2012. Therefore, Mr. Stastney’s proposition that 14 days is inherent delay during the February to April period is reasonable.
[7] The 19 month period of institutional\Crown delay is excessive. However, the “guidelines” for systemic delay are “neither a limitation period nor a fixed ceiling” and they are not to be applied “in a purely mechanical fashion” (R. v. Morin, supra at paras. 48 -51). Morin also sets out the fact that the “application of a guideline will also be influenced by the presence or absence of prejudice.” (Morin, supra at para. 21).
[8] Mr. Hussein provided evidence through and affidavit filed in this stay application and was cross-examined by the Crown on its contents. He testified to the following:
About 2 months after he was arrested, he began to feel stress because he had been charged. He felt that he had high blood pressure as a result, but had not visited a doctor to confirm that self-diagnosis. He had not obtained any medical evidence of physical, psychological or other harm/affect since the charges were laid;
He had been working as a general labourer prior to having been charged, as well as in the security guard field. He started to go to school with the aid of the provincial government after he was charged and has been trained in construction work;
As a result of the charges and his bail conditions from July 22, 2012, he had to leave his Toronto Community Housing apartment where the drugs and proceeds were found and has not returned to it in spite of paying $115/month to keep it up to the present. He has, however, defeated the landlord’s attempts to have him evicted from the apartment due to the charges, which have not yet been proved and he will, no doubt, be free to return to the apartment once the trial is over or his bail condition, which requires him not return to the address, is varied. Mr. Hussein has not applied to vary that condition to date;
His bail conditions require him to live with his surety and have an 11:00 p.m. to 6:00 a.m. curfew. The curfew was lifted on September 30, 2013, but before that Mr. Hussein complains that his social life was affected due to the fact that he could not invite friends over to his surety’s home and he had to be indoors at 11:00 p.m. each night; and
His father in Somalia suffers from deteriorating health and he is not able to travel there to visit him. He has not applied for a variation in the bail in order to travel outside Canada and did not know that he could have done so.
[9] The applicant submits that specific prejudice was suffered in this case. The focus of this inquiry is upon prejudice that is occasioned by any delay in the proceedings as opposed to prejudice that flows from the fact of being charged (R. v. Kovacs-Tartar, 2004 42923 (ON CA), [2004] O.J. No. 4756 (C.A.) at para. 32).
[10] There is also the question of inferred prejudice. Inferred prejudice arises in cases where the delay is “substantially longer than can be justified on any acceptable basis. Where the case is closer to the line, an applicant can lead evidence to show that he or she has suffered prejudice [R. v. Richards 2010 ONSC 6202 (Ont. S.C.J.)]. The delay in this case is not long enough to give rise to inferred prejudice.
Conclusion
[11] First, Mr. Hussein’s stress originated as a result of being charged 2 months after the charges were laid and not as a result of the delay that has occurred in this case. In addition, there is no medical evidence that he has suffered physically or otherwise as a result of the delay.
[12] Second, the fact that Mr. Hussein has been on bail that has kept him from his subsidized apartment is a reasonable condition considering that the cocaine was found at the location. He has not lost the apartment, but can return to it once the charges have been resolved. In addition, he has not applied for a variation of this bail condition and, therefore, cannot claim that it would not have been deleted as a term without having made the application.
[13] Third, although there was a curfew, that bail condition was deleted on consent of the Crown once the trial did not proceed in September, 2013.
[14] Fourth, Mr. Hussein has not applied to leave the country to return to Somalia to visit his ailing father. Again, it is inappropriate of him to claim prejudice due to his inability to leave the country when he has never tried to do so. Any prejudice in this regard has been self-inflicted.
[15] These are serious charges. The amount of cocaine in question is significant. The period of delay is not substantially outside what is set out in the case law as acceptable. The trial should proceed to be heard on its merits as the applicant has failed to meet his burden on the application.
[16] The application is dismissed.
McWATT J.
Released: June 19, 2014
COURT FILE NO.: 12-90000 716-0000
DATE: 20140619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN
AHMED HUSSEIN
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
RULING SECTION 11(b) CHARTER MOTION
McWATT J.
Released: June 19, 2014