NEWMARKET

COURT FILE NO.: CR-09-09406

DATE: 20140717

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GILBERT GONZALES and MARIA CHRISTINA GONZALES AND SENA DAVID SAUNDERS

Defendants

K. Dickson/J. Gevikoglu, for the Crown/Respondent

C. Bottomley/C. Sewrattan, for the Applicant

HEARD: May 5 and 6, 2014

RULING – APPLICATION FOR A STAY OF PROCEEDINGS

BASED ON AN ALLEGED BREACH OF s.11(b) OF THE

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

McISAAC J.

[1] On May 6, 2014 I dismissed the instant application and undertook to deliver formal reasons for that disposition in due course. These are those reasons.

BACKGROUND

[2] The applicant was arrested on October 5, 2009 in relation to seven firearm and ammunition offences contrary to the Criminal Code of Canada and two offences of possession of marihuana for the purpose of trafficking contrary to the Controlled Drugs and Substances Act. He was driving a rented van that was loaded with several boxes of processed, packaged and sealed marihuana along with a large amount of cash. His residence was located in the same neighbourhood of Markham and, upon execution of a search warrant, delivered up another significant stash of processed marihuana and cash. Almost $130,000 in Canadian and U.S. currency and 430 pounds of processed marihuana were seized by the authorities that day. A handgun and ammunition was located in the master bedroom as well.

[3] Mr. Gonzales was released on bail on November 23, 2009 and was required to live with his parents at 132 Gilley Road in Toronto. They had agreed along with two others to act as sureties in the total amount of $500,000 without cash deposit. Following a committal for trial, the applicant was indicted in this court on March 3, 2011 and, after numerous appearances, a trial date for the week of October 22, 2012 was fixed on April 5, 2012.

[4] The trial proceeded by way of a lengthy Charter exclusion motion over four days during the week of October 22, 2012 following which it was adjourned to March 28, 2013 to permit consideration of the merits and to prepare written reasons. Those reasons dismissing the motion were delivered on February 26, 2013: see 2013 ONSC 1244. Although the applicant was prepared to admit the balance of the Crown’s case by way of an Agreed Statement of Fact, the trial could not proceed on the return date of March 28, 2013 because the Crown announced its intentions to proceed with forfeiture applications under s.462.37(2.01) of the Code for proceeds of crime and s.16 of the CDSA for offence-related property in relation to the applicant’s residence that was being used as a drug processing depot. On that date, I was involved in pre-trial motions on a first degree murder case that did not conclude with a jury verdict until July 27, 2013. The applicant and Crown had turned down an offer to try and arrange for the trial in this matter to continue on April 30, 2013. In the result, the matter was adjourned until October 4, 2013 at which time findings of guilt were made, a Pre-Sentence Report was ordered for delivery on December 2, 2013 and the sentencing and forfeiture hearing was adjourned to proceed on May 5 and 6, 2014. At no time up to and including that point did the applicant protest about the pace of the proceedings. That did not crystallize until he filed his Application herein on April 4, 2014. Needless to say, the sentencing/forfeiture hearing did not proceed on the scheduled date of May 5, 2014 to permit this fresh Charter motion to be heard. It was dismissed the following day with formal reasons to follow. The applicant was eventually sentenced and the two forfeiture orders sought by the Crown were made on June 11, 2014.

POSITIONS OF THE PARTIES

[5] The applicant has no complaint with the delay of more than three years between the date of his arrest and the initial trial date fixed for October, 2012. He concentrates his attention on the period of some eighteen months following that time and suggests that it can only be explained by “institutional delay” which must be vindicated by a stay of proceedings: see para. 18 of the Applicant’s Factum. He underlines the profound prejudice to his personal and family life that has been caused by the failure to have a timely resolution of these charges.

[6] The Crown respondent, on the other hand, suggests that the time taken to conduct the trial was not unreasonable, that the applicant has suffered minimal prejudice and that these serious allegations should be allowed to proceed to sentencing and forfeiture hearing in the public interest.

LEGAL PRINCIPLES

[7] In R. v. MacDougall 1998 763 (SCC), [1998] 3 SCR 45, at p. 66 the Court reiterated the following four factors in assessing an alleged breach of s.11(b):

(1) the length of the delay;

(2) the reason(s) 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 the delay;

(3) waiver of time periods; and

(4) prejudice to the accused.

[8] The same case stated that the inherent time requirements of sentencing do not fall under the time guidelines for the pre-conviction period as set out in the established jurisprudence: see p.68. Given the fact that the applicant had been found to be effectively guilty of these offences as of the date of the Charter ruling on February 26, 2013, I am of the view that the “normal” Askov/Morin guidelines do not apply to more than three-quarters of the period in issue.

ANALYSIS

[9] The length of the delay complained of involves a period of approximately 18 months. This is sufficient, in my view, to trigger a consideration of the other factors referred to in R. v. MacDougall, supra. Once the Charter motion had been argued, it took approximately four months for the ruling along with extensive reasons to be delivered. There is nothing wrong with a judge taking time to consider the submissions of counsel and to take time to craft the basis for his or her decision: see R. v. K.O., 2008 ONCA 500 at para. 2. In my view, the period of five months when the case was next before the court constitutes part of the inherent time requirements of this matter. Once the parties returned to court on March 28, 2013, I was seized with a lengthy murder trial that eventually concluded at the end of July that year. The parties were not prepared to accept the offer of April 30, 2013 due to their other commitments. The next available date for all concerned was October 4, 2013 at which time the trial was concluded, a Pre-Sentence Report was ordered and the dates in May 2014 were set which gave rise to this application.

[10] As I have already noted, the applicant did nothing to bring his concerns about the delay herein to the attention of the court. I accept that it is not the task of an accused person to provide him or herself a trial in a reasonable time; that is the obligation of the State, especially a case that had begun in the fall of 2009. However, in my view, the applicant’s failure to assert his complaint until the last moment suggests that his suggestion of prejudice simply cannot carry much weight in my assessment: see R. v. Schertzer, 2009 ONCA 742 at para. 89.

[11] In particular, he claimed that he was prevented from communicating with his wife, implying that there was a term in his recognizance to this effect which effectively prevented him from living with her and their young son. However, there is no such term in the recognizance which the applicant must have misunderstood. In addition, although there was a term that he remain in the Province of Ontario which compromised his ability to accept work commitments elsewhere, the record discloses that he was permitted a variation of that term to take a vacation elsewhere in December 2010. It appears the Crown was prepared to consent to a reasonable accommodation of exemption from this obligation. Given these circumstances, I am satisfied that with the exercise of due diligence on the part of the applicant, any prejudicial consequences of the terms of his release could have been easily attenuated.

[12] Returning to the factors articulated by the Supreme Court of Canada, it is evident to me that the period in question can be best explained by either the inherent time requirements of the case or by the fact that there were significant difficulties in “squeezing” additional time out of the already busy schedules of counsel and the court to find time to complete this matter. The demands on Central East Region are well-known and have been the basis for comments by the Court of Appeal, especially when cases cannot be concluded on the basis of the original time estimate: see R. v. Allen (1996) 1996 4011 (ON CA), 110 C.C.C. (3d) 331 at paras. 34-5. The delay in this case that is the subject of the applicant’s complaint has absolutely nothing to do with any alleged “chronic scarcity of judicial resources”.

[13] I am sensitive to the implicit suggestion that the “system” was inflexible to the plight in which the applicant found himself. However, the record herein does not support his innuendo. First, on the date the matter was spoken to following the failed Charter-exclusion motion, that is, March 28, 2013, the court was prepared to try and schedule the matter one month hence but this offer was rejected due to the previous trial commitments of counsel. Second, the “system” allowed the trial to conclude on October 4, 2013 by “stealing” that date from my scheduled commitments in another judicial centre in the Region. Third, the hearing for sentencing and forfeiture was eventually scheduled to proceed on two days in early May 2014 when the court was not scheduled to be sitting due to the statutory meeting mandated by s.52(1) of the Courts of Justice Act. Indeed, I interrupted a lengthy civil trial in Oshawa on June 11, 2014 to accommodate an early final disposition of these proceedings. In my view, the veiled accusation of inflexibility is belied by these efforts to conclude this case in a timely fashion.

CONCLSUION

[14] Given the explanations for the 18-month delay herein and the minimal prejudicial impact on the personal and family interests of the applicant, I am satisfied that there is no violation of s.11(b) of the Charter. Accordingly, the application for a stay of proceedings is dismissed.

McISAAC J.

Released: July 17, 2014