ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-90000685-0000

DATE: 2014/11/17

BETWEEN:

HER MAJESTY THE QUEEN

– and –

YANG SHI

Accused

Sam Siew, for the Crown

Boris Bytensky, for the Accused

HEARD: August 28, 2014

Charter application ruling

A.J. O’MARRA J.:

[1] Mr. Yang Shi has brought an application prior to the commencement of trial, November 17, 2014 for an order of the Court pursuant to S.24 (2) of the Charter of Rights and Freedoms to stay proceedings against him on the basis that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter has been violated.

[2] The applicant is charged with a number of offences, specifically possession of cocaine and marijuana x 2, possession of cocaine and marijuana for the purpose of trafficking x 2, and possession of proceeds of crime arising from his arrest with three others, Huy Duc Nguyen, Jeffery Kwan and Ngoc Nguyen on December 6, 2012.

[3] On the date of the application, August 28, 2014, after hearing submissions I dismissed the application and indicated that my reasons would follow. These are those reasons.

Background to the Application

[4] On December 6, 2012 officers of the Toronto Police Service executed a search warrant at the residence of the applicant, 44 Gerrard Street, PH No. 8 in which was located in excess of 200 grams of cocaine and 200 grams of marijuana, described as being in a plain view, and $13,000 cash in a safe. Mr. Shi was not at home at the time of the search, however, his girlfriend, Ngoc Nguyen, was there and arrested. Two others, Huy Duc Nguyen and Jeffery Kwan, were arrested as they returned to the apartment. Several hours later Mr. Shi was arrested on his return to the apartment.

[5] Huy Duc Nguyen and Jeffery Kwan have since had their charges withdrawn. Mr. Nguyen died on September 17, 2013 prior to a preliminary hearing or trial date being set in the Ontario Court of Justice. Mr. Shi remains as a co-accused with Ngoc Nguyen.

The Legal Framework

[6] In analyzing whether or not any impugned period is unreasonable the court must consider four factors as set out in R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (SCC) at p. 13:

1. The length of the delay;

2. Any waiver by the accused of time periods;

3. The reasons for the delay, including

i. the inherent time requirements of the case,

ii. actions of the accused,

iii. actions of the Crown,

iv. limits on institutional resources, and

v. Other reasons for delay;

4. Any prejudice to the accused.

[7] Section 11(b) of the Charter guarantees the right of any person to be tried within a reasonable time. The primary purpose of the section is to protect the rights of the accused to security of the person, liberty, the presumption of innocence and right to a fair trial. There is a secondary societal interest protected by Section 11(b) in having offenders brought to trial quickly and dealt with fairly and justly according to the law.

[8] The assessment of whether an accused’s rights under Section 11(b) have been infringed entails a balancing of the individual’s rights and the societal interests in the length and causes of the delay.

[9] In determining whether or not the right of an accused to be tried within a reasonable time has been denied, the general approach is not by the application of a mathematical calculation or formula or the imposition of a limitation period, but rather by judicial determination made by balancing interests which the section is designed to protect against factors which led to the delay.

[10] All of the factors must be balanced in coming to a determination as to whether or not there is unreasonable delay and no one factor is determinative in the analysis. The seriousness of the charge is not a factor in and of itself. It is but one circumstance that informs the Court’s consideration of each, and all, of the enumerated factors. (See R. v. Giorgio, [2004] O.J. No. 3807 (SCJ) at para. 43 and R. v. Sharma (1992), 1992 90 (SCC), 71 C.C.C. 184 at 196 (SCC).)

[11] The Supreme Court has set a guideline of 8 to 10 months considered reasonable period of time for institutional delay in the Ontario Court of Justice and 6 to 8 additional months for a trial date in the Superior Court of Justice. Importantly, the guidelines as set out by the Supreme Court should be considered “neither a limitation period nor a fixed ceiling” or applied “in a purely mechanical fashion”. Instead the guideline is a sliding scale, and deviations of several months in either direction can be justified by the presence or absence of prejudice (see R. v. Morin at para. 53, and R. v. Tran, 2012 ONCA 18 at para. 63). Inferred prejudice will arise where the delay is “substantially longer than can be justified on any acceptable basis”. However, actual prejudice must be proven by extrinsic evidence.

[12] It was noted in R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No. 5004 (C.A.) at para. 25 that where real prejudice exists the acceptable period of delay can be shortened, however, correspondingly, it must also be recognized that in the absence of meaningful prejudice the period of delay that is constitutionally tolerable can lengthen.

Chronology

[13] The history of the proceeding of this matter can be summarized as follows:

1. December 6, 2012 Applicant arrested with three co-accused H. Nguyen, N. Nguyen and J. Nguyen;

2. December 7, 2012 Applicant released on consent $10,000 surety bail with condition he not attend address where arrested. Remanded to date set for other accused January 15, 2013. 1 month 1 week (1.25 month inherent/intake delay);

3. January 15, 2013 first appearance in set date court. Applicant has retained counsel and designation filed for his defence. Crown advises that disclosure is not available and requires a three week remand to provide it. Adjourned to February 13, 2013. 1 month Crown describes as inherent, Applicant characterizes as Crown delay for failure to provide earlier disclosure.

4. February 13, 2013 additional disclosure provided. Applicant and 1 co-accused appear by counsel. Two co-accused had yet to retain counsel. Adjourned for a Crown pretrial with a suggested return date of February 23, however, Applicant’s counsel requests March 6, 2013. 3 weeks (.75 month) - neutral.

5. March 6 2013 Crown pretrial held prior to return date. At pretrial Applicant requested the information to obtain the search warrant (ITO). Crown required time to vet ITO for disclosure and matter adjourned to March 27, 2013. 3 weeks (.75 month) Crown describes the period of time as neutral whereas the applicant describes it as Crown delay for failure to have the vetted ITO available earlier as a result of a compendious disclosure request made shortly after the applicant’s first appearance.

6. March 27, 2013 Crown provides vetted ITO. The matter is adjourned to April 11, 2013 to join up with other co-accused. 15 days (.5 month) - neutral.

7. April 11, 2013 Applicant indicates readiness to set a judicial pretrial (JPT) as does a co-accused, J. Kwan. Co-accused’s H. Nguyen and N. Nguyen had still not retained counsel. The two accused were “still working their way through the legal aid process” and duty counsel indicated “they are no further along than they were last date, not ready.” Matter adjourned 3 weeks to permit the two co-accused to retain counsel. 3 weeks (.75 month) – neutral.

8. May 2, 2013 co-accused N. Nguyen and H. Nguyen still do not have counsel. Again, Applicant indicates readiness to set judicial pretrial, however matter adjourned to May 16, 2013 to await legal aid for co-accused. On May 2, May 16 and May 30 Applicant attempted to proceed set a judicial pretrial without waiting further for the co-accused to get counsel. Crown’s position was that without all of the parties being represented it would be inappropriate for the Court to set a judicial pretrial despite the Applicant’s request. 2 weeks (.5 month). Crown characterizes the time period as neutral due to a co-accused delay. Applicant describes it as Crown delay or in the alternative institutional delay for the Court failing to direct that the matter go forward to a judicial pretrial.

9. May 16, 2013 the Nguyens indicate they have been granted Legal Aid and retained counsel, however, counsel for the Nguyens are not present and did not provide available dates for JPT. Applicant and Kwan indicate that they have been trying to set a JPT for the last three appearances. Matter adjourned to May 30th, 2013 with the Court indicating to the Nguyens “if you don’t have a lawyer on that date, we’re going to be setting the JPT.” 2 weeks (.5 month) Crown characterizes time period as neutral due to co-accused delay, Applicant describes it as a Crown/institutional delay.

10. May 30, 2013 N. Nguyen still did not have counsel, waiting on a Legal Aid appeal, and H. Nguyen unable to proceed. Applicant requests again that a JPT be scheduled, but it could not be set without counsel being available. Adjourned to June 19, 2013. 3 weeks (.75 month). Crown characterizes time period as neutral due to co-accused delay, Applicant describes it as Crown/institutional delay.

11. June 19, 2013 counsel for N. Nguyen indicated that he had not yet conducted a Crown pretrial, which was set for July 2. As only the Applicant, J. Kwan and N. Nguyen’s counsel were present when the matter was initially spoken to, and the status of H. Nguyen’s counsel situation was unknown an open court judicial pretrial was set for July 29, 2013. An earlier date, July 18 was offered but not available to the Applicant’s counsel. N. Nguyen’s counsel attended late after the matter had been spoken to. As an open court judicial pretrial had already been scheduled the Court refused the Crown’s suggestion that it proceed as a regular judicial pretrial stating, “because that is what the others are expecting, that it will happen.” 6 weeks (1.5 month) neutral.

12. July 29, 2013 all parties appear with counsel and are ready to proceed with an open court JPT as scheduled. The Crown indicates that he has only seen the brief “half an hour ago” and prefers to proceed in the normal course, with a regular judicial pretrial. Counsel for the Applicant and other accused request to proceed with the open court JPT however, the presiding judge declined stating, “we should stick to the normal routine here” with an early date for a JPT. An early date of August 16 was available, but not to counsel for the other co-accused. September 4, 2013 is set for the JPT. 5 weeks (1.25 month) Crown characterizes time period as neutral (co-accused not available for first available JPT- 19 days.) Applicant describes it as institutional/Crown delay because the Court/Crown declined to proceed with open court pre-trial despite all accused in a position to do so.

13. September 4, 2013 JPT held with three accused. The Crown indicated that the time estimates for a trial or preliminary hearing had been reached between counsel and the Crown was ready to set either on that date. However, the counsel for the Applicant requested time to get instructions given the new developments in the case. Huy Duc Nguyen was anticipated to provide the Crown a statutory declaration and charges withdrawn. Instead of the matter proceeding as a preliminary inquiry as anticipated, counsel for the Applicant required time to obtain instructions and requested the matter be adjourned to September 10, 2013. 1 week (.25 month) - neutral.

14. September 10, 2013 The court is advised that a statutory declaration was provided by J. Kwan and the Crown requested that all counts against him be withdrawn. Trial dates set in the Ontario Court for June 2014 and pretrial motions, February and March 2014. Matter adjourned at request of N. Nguyen to September 18 to confirm instructions. 1 week (.25 month) - neutral.

15. September 18, 2013 N. Nguyen unable to confirm instructions as her brother Huy Duc Nguyen died the day before, September 17, 2013. 2 weeks (.5 month) - neutral.

16. October 1, 2013 co-accused N. Nguyen elects to be tried in the Superior Court. Notwithstanding Applicant’s repeated intention to proceed to trial in the Ontario Court the OCJ trial date’s vacated. The Crown not willing to sever the remaining co-accused. The accused waived the requirements of a preliminary inquiry and were committed for trial in the Superior Court. 4 weeks (1 month) - neutral.

17. October 30, 2013 JPT set in the Superior Court. 3 weeks (.75 month) - inherent/intake delay.

18. November 20, 2013 JPT held and trial date set for November 17, 2013 (2 weeks judge and jury). The earliest date available to applicant counsel was January 14, 2014. November 20 to January 14, 2014 eight weeks (2 months) - neutral. January 14-November 17, 2014 10 months institutional delay.

Position of the Parties

[14] The Crown and defence agree that the overall delay in setting the matter down for trial, 23 months 11 days (December 6, 2012 to November 17, 2014) warrants scrutiny in accord with the considerations set out in R. v. Askov (1990), 1990 45 (SCC), 59 C.C.C. (3d) 449 pp.483-484 (SCC) and R. v. Morin at p. 13. They agree that the matter has not proceeded in the usual two-stage process in that there has been no institutional delay in setting a preliminary hearing or trial date in the Ontario Court of Justice. Similarly, they agree that the institutional delay in the Superior Court is slightly more than 10 months.

[15] The area of disagreement with respect to allocation of delay, which either adds to the unreasonableness of the delay, or which should be considered neutral in the analysis is with four specific periods of time as the matter progressed through the Ontario Court of Justice.

[16] The Applicant contends that an additional 4.5 months of the delay should be attributed to the Crown or Court, specifically:

1. 4 week (1 month) delay by the Crown in providing initial disclosure, January 15 to February 13, 2013;

2. 3 week (.75 month) Crown delay vetting the search warrant ITO, March 6 to March 27, 2013;

3. 6 week (1.5 month) delay as a result of the Crown opposed to setting a JPT date when two co-accused were still without counsel, May 2 to June 19, 2013; and

4. 1 month, 1 week (1.25 month) delay as a result of the Court not conducting an open-court JPT when all accused appeared with counsel, July 29 to September 4, 2013.

[17] The Crown characterizes all of these periods as being neutral, resulting from the co-accused being unrepresented and having difficulty in retaining counsel, thereby delaying the scheduling of the required judicial pre-trial prior to setting either a preliminary inquiry or trial date.

[18] The Applicant contends that there was approximately 14.5 months of institutional and Crown delay, whereas the Crown contends that there has been only slightly more than 10 months institutional delay, attributable to the initial unavailability of the defence for a trial from January 14, 2014 to the trial date of November 17, 2014 in the Superior Court.

[19] The Applicant claims that in addition to there being unreasonable delay beyond the guideline of 6 to 8 months in the Superior Court of Justice as set out in R. v. Morin as acceptable delay, he has suffered actual prejudice resulting of the death of Huy Duc Nguyen, a potential witness in his defence. Counsel for Mr. Shi indicated in submissions that Mr. Shi’s defence, in part, is that the charges, which relate primarily to drugs located in a backpack found in the living room of his apartment belonged to Huy Duc Nguyen visiting from Montreal.

[20] The Crown’s position is that no prejudice can accrue to the Applicant as a result of Mr. Nguyen’s demise because, even if his co-accused could have been a potential witness, his death occurred well before Mr. Shi might have reasonably expected either a preliminary hearing or trial date in the Ontario Court of Justice to have been set.

Analysis

[21] In the analysis, it is important to bear in mind, as observed by Justice L’Heureux-Dube in writing for the majority in R. v. Conway (1989), 1989 66 (SCC), 49 C.C.C. (3d) 289 (SCC) at 307 that the correct approach in the Section 11(b) analysis in evaluating the reasonableness of the overall lapse of time that “a piece meal approach is generally not appropriate. In a case where each individual period, taken in isolation from the others, may constitute a reasonable delay, the total period may nevertheless be unreasonable for the purpose of section 11(b).”

[22] Further, Arbour J.A. observed in R. v. Bennett (1991) 1991 2701 (ON CA), 64 C.C.C. (3d) 449 (OCA) at 467, affirmed 1992 61 (SCC), [1992] 2 S.C.R. 168, the following:

It is easy to lose sight of the importance of the total period of delay, particularly when engaged in the examination of the causes for various components of the total delay. A case may take too long to reach the preliminary inquiry, but then may be tried very expeditiously after committal, or vice-a-versa. Ultimately, it is the reasonableness of the total period of time that has to be assessed, in light of the reasons that explain its constituent parts.

[23] The Section 11(b) analysis is not concerned with the assignment of blame, but only with the cause of delay and whether the delay is unreasonable, (see R. v. Phillips (1983), 71 C.C.C. (3d) 167 (OCA) and R v. Cornacchia, [1994] O.J. No. 1345 (C.A.) at para. 17).

[24] Counsel for the Applicant submits that because of the delay caused by a co-accused and his expressed continuous desire to be tried expeditiously in the Ontario Court, the Crown should have severed his counts from the other accused to permit his trial to proceed.

[25] However, delay caused by the actions, or inactions of co-accused, including delay as a result of an accused attempt to locate and retain counsel, as a general rule is considered neutral and is not factored into the assessment of reasonable time. (See R. v. Whylie, 2006 9037 (ON CA), [2006] O.J. No. 1127 (C.A.) at para. 24, R. v. Tomlinson, [2008] O.J. No. 3524 (SCJ) at para. 41).

[26] The Court of Appeal noted in R. v. L.G., 2007 ONCA 654, [2007] O.J. No. 3611 at para. 63 that the reason for the rule is that it is in the interest of justice that individuals who are jointly charged with an offence be tried together. Severance will rarely be granted. In terms of delay, the Court concluded:

Given these principles, delay caused by the actions of co-accused ordinarily will not be attributable to the Crown or to the absence of institutional resources.

[27] Strathy, J in R. v. Charles, [2013] O.J. No. 74 at para. 38 in quoting R. v. Sarrazin 2005 11388 (ON CA), [2005] O.J. No. 1404 (C.A.) at 59 noted that there are strong policy reasons why persons jointly charged with an offence should be tried together:

Unless it can be shown that a joint trial would result in an injustice to an accused, it is generally in the interest of justice that (co-accused) be tried jointly. There are strong policy reasons for this principle: Joint trials enhance the truth finding exercise and preclude the possibility of inconsistent verdicts; they spare all those concerned, and ultimately the community, the expense (financial and emotional) inconvenience to witnesses, and institutional stress associated with multiple trials of the same issue.

[28] In this instance, the delay resulting from the co-accused being delayed in retaining counsel and setting a judicial pretrial was no more than 2 months of the overall proceedings. There was no reasonable basis for the Crown to have moved for severance in these circumstances. I note as well that the Applicant did not apply for severance. At the time the applicant suggests the Crown should have severed him from his co-accused it would have caused unnecessary duplication of proceedings. The action of the Crown in the conduct of these proceedings was reasonable.

[29] I accept the position of the Crown that all of the delay prior to October 30th, 2013 was either inherent delay or as a result of co-accused not having counsel or being in a position to conduct a judicial pretrial.

[30] On the issue of prejudice, the focus of the inquiry is as noted by the Court of Appeal in R. v. Kovacs-Tatar, 2004 42923 (ON CA), [2004] O.J. No. 4756 at para. 32 prejudice that flows from a situation “prolonged” by delay rather than the mere fact of being charged with a criminal offence. In R. v. Richards, 2010 ONSC 6202 at para. 35 it was noted that where the case is close to the line the applicant may lead evidence to show that he or she has suffered actual prejudice.

[31] The applicant contends that because Nguyen died before he had a trial date and he is not available as a potential witness his fair trial interests have been affected. He has suffered prejudice as a result.

[32] It must be kept in mind that H. Nguyen died September 17, 2013 approximately 9 months from when the applicant and co-accused were charged and before the matter reached the Superior Court on October 30, 2013. There being no institutional delay prior to that time it cannot be said to have affected the applicant’s fair trial interests. All delay prior to October 30, 2013 was either inherent or as a result of delay occasioned by the co-accused in not having counsel and being in a position to proceed.

[33] Even if an earlier judicial pretrial had been conducted after April 11, 2013 when the Applicant first asserted his readiness, it is unlikely a trial date would have been set in the Ontario Court of Justice prior to September 17, 2013, the date of Nguyen’s death.

[34] Further, even if Nguyen’s evidence was compellable and beneficial to the accused’s defence, its unavailability due to his death is not rationally connected to any Crown or institutional delay in this matter.

[35] One cannot lose sight of the fact, notwithstanding the Applicant’s desire to have an early trial date in the Ontario Court, he was compelled to proceed to trial in the Superior Court as a result of his co-accused’s election to be tried by a court composed of a judge and jury. Had the matter proceeded in the usual two stage process with a preliminary hearing in the Ontario Court and trial date in the Superior Court, the overall institutional delay considered reasonable, based on the guideline set out in Askov, would have been in the range of 14 to 18 months. In this matter, the total institutional delay of 10 months is not unreasonable.

[36] In balancing all of the factors outlined above I find that the right of the Applicant to be tried with a reasonable time has not been infringed.

[37] In the result, the Section 11(b) application is dismissed.

A.J. O’Marra J.

Released: November 17, 2014

COURT FILE NO.: 13-90000685-0000

DATE: 2014/11/17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

YANG SHI

Accused

CHARTER APPLICATION RULING

A.J. O’Marra J.

Released: November 17, 2014