R. v. NOURI, 2015 ONSC 115
DATE: 20150108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MIRIAM NOURI
Applicant
Eadit Rokach for the Crown
Chris Sewrattan for Miriam Nouri
HEARD: September 8-9, 2014
Reasons for Ruling on Application to Stay for Delay
MacDonnell, J.
[1] Shortly before 3:00 p.m. on Thursday January 26, 2012, four men entered Annam Jewelry at 208 Markham Road in Toronto, herded the employees into the rear of the store at gunpoint, emptied $700,000 worth of jewelry into large plastic garbage bags, and made their getaway. The robbery had been carefully planned and the allegation of the Crown was that applicant played an integral role in the planning, although she was not present in the store when the plan was executed.
[2] On March 23, 2012 the applicant was arrested and charged with a number of offences arising from the robbery. On September 8, 2014, about 29½ months later, she appeared before this court for what was estimated to be a three week trial. Based on that estimate, the elapsed time between the date on which the applicant was charged and the completion of her trial was expected to be a few days in excess of 30 months.
[3] At the outset of the proceedings on September 8, the applicant applied under s. 24(1) of the Canadian Charter of Rights and Freedoms for an order staying the charges against her on the basis that her right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter had been infringed. On September 11, I ruled that the applicant had not established an infringement of s. 11(b) and the application was dismissed. I indicated that I would provide written reasons for that ruling. These are those reasons.
I. The Framework for the Analysis
[4] Section 11(b) of the Charter provides that “any person charged with an offence has the right … to be tried within a reasonable time.” In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, the majority of the Supreme Court of Canada held that the primary purpose of this constitutional guarantee is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speaking for the majority, Justice Sopinka stated:
The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.[^1]
[5] Justice Sopinka made it clear that the decision as to whether s. 11(b) has been infringed is not to be made “by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” He noted that “it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?”[^2] That question, he concluded, is to be answered after a consideration of four factors: the length of the delay, the reasons for the delay, whether any of the delay was waived, and whether there has been prejudice to interests that s. 11(b) is meant to protect.
II. Analysis
[6] Two of the factors that Justice Sopinka mentioned can be dealt with quickly. The delay between the laying of the charges against the applicant and the anticipated end of her trial was estimated to be a few days over 30 months. That delay was sufficiently lengthy to warrant an inquiry into its causes. Further, the Crown acknowledged that the applicant never waived any portion of the delay. The factors that required close consideration in this case were the reasons for the delay and whether the delay caused prejudice to the applicant.
(a) the reasons for the delay
[7] Any circumstance that contributed to the delay in bringing a matter to trial has to be taken into account in the reasonableness calculus. The analysis is usually focused, however, on four considerations: limitations on institutional resources, inherent time requirements, actions of the accused, and actions of the Crown.
[8] I will begin my analysis of the reasons for the delay with what was largely common ground.
[9] First, the parties agreed that 14.2 months of the overall delay was caused by limitations on institutional resources. That portion of the delay was made up of two periods:
(a) from the first date on which the defence would have been in a position to commence the preliminary inquiry (January 7, 2013) to the commencement date (July 26, 2013): 6.6 months; and
(b) from the first date on which the defence would have been in a position to commence the trial (January 20, 2014) to the trial date (September 8, 2014): 7.6 months.
[10] Second, the parties were in substantial agreement that 8.25 months of the delay was caused by the inherent time requirements of the case. That portion of the delay comprised four periods:
(i) March 23, 2012 (the date of the applicant’s arrest) to April 24, 2012 (her first appearance in court after release on bail): 1 month;
(ii) November 27, 2012 (the set-date for the preliminary inquiry) to January 7, 2013 (the first date on which the defence would have been available to proceed): 1.5 months;
(iii) July 26, 2013 (the commencement of the preliminary inquiry) to October 15, 2013 (the completion of the Superior Court judicial pre-trial): 2.75 months;
(iv) October 22, 2013 (the set-date for the trial) to January 20, 2014 (the first date on which the defence would have been able to proceed to trial): 3 months.
The time required to conduct a trial is also part of the inherent time requirements of a case. Accordingly, I would add three weeks, or .75 of a month, bringing the delay due to inherent time requirements to 9 months.
[11] The sum of the undisputed institutional and inherent delay, therefore, was just over 23 months. Where the parties joined issue was in relation to the balance of slightly more than 7 months. That balance was made up of two periods: April 24, 2012 to November 27, 2012, and October 15 to 22, 2013. The applicant submitted that the entirety of that delay was caused by the Crown’s lack of diligence in providing disclosure and its tardiness in making decisions as to how it was going to proceed.
(i) October 15 to 22, 2013
[12] The Superior Court judicial pre-trial occurred on October 15, 2013. Upon its completion, the parties appeared in Practice Court. The Crown requested, on behalf of all parties, a one week adjournment so that certain inquiries could be made before setting a trial date. In my view, the delay between October 15 and 22, 2013 was neutral.
(ii) April 24 and November 27, 2012
[13] With respect to the delay between April 24 and November 27, 2012, responsibility was mixed.
[14] April 24 was the date of the applicant’s first appearance in court following her release on bail. The applicant submitted that there was no reason why a date for a preliminary inquiry could not have been set at that time. I cannot accept that submission. The identification of the six persons who were ultimately alleged to have committed the robbery required a lengthy police investigation. They were not all apprehended at the same time: one was arrested on February 1, 2012, two others were arrested on March 9 and the applicant was arrested on March 23. The final two were not arrested until May 15 and July 15, respectively. Because the six were not all arrested at the same time, they were initially not all charged in the same information. Nor were they initially all being processed in the same courthouse: the charges against the applicant were at the College Park courts because she is female, whereas the charges against others were in Scarborough, where the prosecution was meant to proceed. It was inherent in the realities of the case that some delay would be required to consolidate the proceedings under one roof.
[15] In the circumstances, it would not have been reasonable to expect that a date for the preliminary inquiry was going to be set on the applicant’s first appearance out of custody. Counsel who appeared for the applicant on that date did not suggest to the presiding justice that a date could or should be set at that time. Rather, on consent, the applicant was adjourned to appear in the Scarborough court on May 15. Accordingly, I would characterize the delay from April 24 to May 15 as part of the neutral intake requirements of the case.
[16] On May 15, the applicant failed to attend court as required. The other three accused who had been arrested by that point were slated to appear on May 23. Therefore, a discretionary bench warrant was issued for the applicant, returnable on May 23. Looked at most favorably to the applicant, the delay from May 15 to May 23 was a neutral part of the intake process.
[17] When the case was called on May 23, counsel for one of the persons charged was present but counsel for the remaining accused – including counsel for the applicant – were not. Nor was the applicant herself. Her counsel had left a message with duty counsel asking that the matter be held down, but the one counsel who had appeared on time had matters to deal with in another courthouse and he asked that this case be adjourned to June 13. Later in the day, counsel for the applicant appeared and expressly agreed to the adjournment to June 13. The delay between May 23 and June 13 was caused by the failure of counsel for the applicant and counsel for some of the co-accused to attend court on time on May 23. It should be characterized as defence delay.
[18] On June 13 the matter was adjourned to July 4 and then to July 26. I am satisfied that delay in this period – 1.5 months – was attributable to the Crown’s lack of diligence in making sufficient disclosure to enable a judicial pre-trial date to be scheduled.
[19] On July 26, a judicial pre-trial was scheduled for September 6. There is no evidence as to how that date was selected. However, there was no objection to it, and I infer that the delay was caused either by inherent time requirements or by the agreement of the parties. In either event. It would have occurred even if the Crown’s disclosure had been complete (which it was not) and it should be characterized as neutral.
[20] The judicial pre-trial began on September 6 but it could not be completed because of incomplete disclosure. A further judicial pre-trial was scheduled for October 17. The Crown conceded that the delay between September 6 and October 17 was caused by its failure to meet its disclosure obligations. On October 17, the Crown requested a further adjournment to November 27 to assess how it was going to proceed. Bearing in mind that this request was made nine months after the robbery and three months after the last of the six accused was charged, the six weeks of delay that resulted should be characterized as delay caused by the Crown.
[21] In brief, just over four months of the delay between April 24 and November 27, 2012 was caused by the Crown. Three weeks of delay was caused by the failure of the applicant’s counsel (and other counsel) to attend court on May 23. About 2½ months of delay was caused by the inherent time requirements of consolidating the several accused and scheduling the first judicial pre-trial.
(iii) summary of the reasons for delay
[22] In light of the foregoing, I would attribute the overall delay of just over 30 months to the following causes:
Institutional delay – 14.2 months
January 7 to July 25, 2013
January 20 to September 8, 2014
Crown delay – 4.25 months
June 13 to July 26, 2012
September 6 to November 27, 2012
Defence delay - .75 months
May 23 to June 13, 2012
Inherent delay – 10.8 months
March 23 to May 23, 2012
July 26 to September 6, 2012
November 27, 2012 to January 7, 2013
July 25, 2013 to January 20, 2014
September 8 to September 26, 2014
[23] In Morin, supra, Justice Sopinka suggested an administrative guideline of 14 to 18 months of institutional delay for matters tried in the Superior Court. The institutional delay in this case – 14.2 months – was well within the guideline. However, the 4.25 months of additional delay caused by the Crown put the total delay for which the state was responsible at 18½ months.
(b) Prejudice
[24] As was stated earlier, the primary purpose of s. 11(b) is to protect the right of the accused to security of the person, liberty and a fair trial. In support of her application for a stay of proceedings, the applicant filed an affidavit setting forth claims of actual prejudice to her liberty and security of the person. In the course of cross-examination on her affidavit, she fleshed out those claims and expanded them to include an assertion of impairment of her right to a fair trial.
(i) the impact of the delay on the applicant’s liberty interest
[25] The applicant was arrested on March 23, 2012. She was released on bail five days later and she remained on bail until and throughout her trial.
[26] The most significant restriction on the applicant’s liberty flowing from the initial bail order was a term of house arrest, which required her to be within her parents’ home at all times unless she was in the company of one of her sureties (her mother or her brother). Within a matter of weeks, the Crown consented to a variation of that term to permit the applicant to take her children to school. She did not take advantage of that opportunity to have her bail varied, she said, because her father would not let her leave the house. In September 2012, the Crown consented to a further variation that permitted the applicant to move back to her own apartment. The house arrest term was dropped and replaced by a curfew from 9 p.m. to 6 a.m.
[27] I accept that the house arrest term constituted a significant restriction on the applicant’s liberty. However, it was only in place for about 5½ months. The restriction on liberty that it entailed would have occurred even if the applicant’s trial had commenced within a manifestly reasonable time. The restriction was not caused by delay and it was not made worse by delay. After 5½ months, the term was deleted and replaced by a curfew. There is no evidence that the curfew was a significant restriction on the applicant’s liberty. Most people are home within the hours covered by the curfew and even more are home if they are single parents with young children. In the absence of evidence, I am not prepared to infer that the curfew had more than a minimal impact on the applicant’s liberty interest.
(ii) the impact of the delay on the applicant’s security of the person
[28] The applicant’s claims of prejudice to her security of the person were focused heavily on the delay in obtaining full disclosure of the case against her. She asserted that this caused her stress and anxiety and left her not knowing what was happening and “not knowing what my charges are…” She said she was “thinking about what may happen and what my charges actually are, and when we are going to find out. I called my lawyer and he would not know, he said we have to wait for disclosure…” She said that this led to “very bad depression, I would not talk, eat, anything, I would just sit there and think about what is going to happen… I had suicidal thoughts, and I started cutting myself, hurting myself for a while”. She testified that she still has suicidal thoughts but that she does not act on them because she is the only one who can care for her children. She talked to her family doctor and the doctor told her she should see a psychiatrist. The doctor made an appointment for her, but her son got sick and she could not make it. She testified that she ‘never got around’ to rebooking the appointment. She said “I was in such a bad state that I did not want to leave my house or see anyone, even my own family doctor.” Her doctor gave her a prescription for depression medication, but she never got it filled because she was afraid she would overdose. She stated that her relationship with her family has deteriorated and that she has become an outcast. She tried to go back to school but could not concentrate on her studies or exams.
[29] The applicant had a constitutional right to disclosure, but a breach of that right is not relevant on an application to stay proceedings for delay unless it contributed to the delay or exacerbated the stress that the delay caused. The Crown’s failure to fulfill its disclosure obligations in a timely manner in the early stages of the proceedings did contribute to the delay in setting a date for the preliminary inquiry. However, fairly full disclosure was provided by early October 2012, about six to seven months after the applicant’s arrest and subsequent to that point any stress that the applicant was experiencing was unrelated to the timing of the disclosure.
[30] In any event, I do not believe the applicant’s assertion that she was suffering stress because of the pace of disclosure. Her complaint was not merely that she did not receive disclosure of the fruits of the police investigation but also that she did not even know what charges she was facing or what she was alleged to have done. When challenged in cross-examination, however, she conceded that this was not true. She acknowledged that on the day of her arrest she was interviewed by Detectives DiPassa and Moreau who not only informed her of the charges against her but also of the underlying allegations. She further conceded that the charges were read in court at the time of her bail hearing.
[31] It appeared to me that when the applicant realized that she was conceding that she had not been completely truthful, she attempted to seek cover behind a bad memory. Her claim of memory problems was not credible. She advanced that claim selectively. For example, she had no difficulty giving reasonably clear and detailed evidence about the conditions of her initial bail order and the variations, the reaction of her family to the charges, her discussions with her lawyer concerning disclosure, her discussions with her doctor, her referral to a psychiatrist, and the reason why she never went to see the psychiatrist. It was when she was faced with the implausibility of her assertion that she had not known for months what she was charged with that she began asserting memory problems.
[32] The applicant’s lack of credibility in relation to her concerns about the pace of disclosure is relevant to the credibility of her claims of suicidal thoughts, self-harming behavior, attendances on a psychiatrist and postponing her return to school. With respect to those matters, nothing has been offered apart from her word. Her evidence does not have to be corroborated but in light of her tendency to exaggerate in relation to matters material to the prejudice analysis I am not prepared to put weight on what she said.
[33] I accept, as a matter of common sense, that the applicant was anxious concerning the outcome of the trial. I also accept that she was shunned by her family. But those things flowed from the fact of being charged and would have occurred even if the trial had commenced within a manifestly reasonable time. I acknowledge, however, that delay in bringing the charges to trial could be expected to exacerbate the impact of those things on the applicant.
[34] In the end, I do not accept that any prejudice to the applicant’s security of the person flowing from delay was as severe as she claimed. I am reinforced in that conclusion by the timing of this application. When the trial date was set on October 22, 2013, Justice Kelly directed that if an application to stay the proceedings for delay was going to be made, it should be made “within the next 60 days”. It is reasonable to think that if the applicant were suffering the significant prejudice that she later claimed, she would have complied with Justice Kelly’s direction. She did not. Instead, she waited until the outset of trial, 10½ months later. Her failure to take advantage of the opportunity to end the delay well before the trial date is not consistent with her claim that she was experiencing significant prejudice.
[35] The trial date that was initially set was in November 2014. Subsequently, an earlier date – September 8, 2014 – became available. The applicant’s counsel of choice was committed to other matters on September 8. In order to obtain the earlier date, the applicant agreed to have her counsel’s junior associate represent her. Her willingness to change counsel is a circumstance evidencing a desire to get the matter on for trial, but in all of the circumstances it does not lead me to a different conclusion as to the extent of the prejudice that she was suffering.
(iii) the impact of the delay on the applicant’s fair trial interest
[36] The applicant’s assertion of a poor memory was at the heart of her submission that the delay had caused prejudice to her fair trial interest. For example, she claimed that until Crown counsel reminded her she had forgotten that she had been called as a Crown witness at the preliminary inquiry of four of her co-accused. For the reasons I have outlined, I do not accept her evidence in relation to memory problems.
(iv) inferred prejudice
[37] In Morin, at paragraph 61, Justice Sopinka held that “in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.” In R. v. Ralph, 2014 ONCA 3, at paragraph 16, Justice Rosenberg stated that “when an accused has had to wait almost three years for trial…it is proper to infer significant prejudice…” See also R. v. Williamson, 2014 ONCA 598, at paragraphs 54-57. In R. v. Godin, 2009 SCC 26, however, where the overall delay was about 30 months, Justice Cromwell held, at paragraph 34, that it was reasonable to infer that the delay “gave rise to some prejudice” (emphasis added).
[38] The overall delay in the case at bar was of the same length as that in Godin and six months shorter than in Ralph or Williamson. Based on those cases, it is reasonable to infer that the applicant suffered some prejudice as a result of the delay, but I would not characterize the inferred prejudice as significant.
(c) Balancing
[39] The guarantee provided by s. 11(b) of the Charter is the right to be tried “within a reasonable time.” In Morin, the Supreme Court directed judges to assess whether a delay in bringing an accused to trial was reasonable “by… balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.”[^3]
[40] The primary purpose of the guarantee to a trial within a reasonable time is the protection of the right of the accused to security of the person, liberty and a fair trial. A finding of prejudice to one or more of those interests will be an important consideration in the balancing process. However, a finding of prejudice does not in itself dictate the further finding that the constitutional guarantee has been infringed. To put it another way, proof of prejudice flowing from delay is not necessarily proof that the delay was unreasonable: see, for example, R. v. Lo, 2014 ONCA 23, at paragraph 3. The greater the prejudice, the more likely a finding that the delay was unreasonable, but the latter finding can only be made after the prejudice is assessed together with the other factors that Morin requires judges to consider. If the delay was entirely justified, for example, or if the amount of unjustified delay was not substantial, or if the accused was responsible for significant portions of the delay, the balance may be tipped against a finding that the time between the laying of the charge and the completion of the trial was unreasonable, notwithstanding the existence of prejudice.
[41] Although I reject most of the applicant’s assertions of actual prejudice, I do accept that the delay caused her a measure of anxiety and concern and thus that it had an adverse impact on her security of the person. I also accept that a degree of prejudice must be inferred from the fact of the thirty-month overall delay. In relative terms, however, I would characterize the extent to which the applicant’s Charter-protected interests have been prejudiced as modest.
[42] It cannot be said that the overall delay in this case was entirely justified. The institutional delay of 14.2 months was well within the guidelines laid down by the Supreme Court in Morin for cases tried in the Superior Court but an additional 4.25 months of delay was caused by actions of the Crown. When the additional delay is combined with the institutional delay, the delay attributable to the state was about 18½ months. Although that combined amount exceeded the Morin guidelines for institutional delay, it did so only slightly.
[43] The charge of armed robbery faced by the applicant is very serious. The seriousness of a charge is a relevant consideration in the balancing process because it gives rise to a heightened societal interest in a trial on the merits. Where such an interest exists, the absence of a credible claim of anything more than modest prejudice takes on added significance: R. v. Seegmiller, 2004 CanLII 46219 (ON CA), [2004] O.J. No. 5004, at paragraph 25 (Ont. C.A.).
[44] Having placed all of foregoing considerations on the scales, and having attempted to balance the actual and inferred prejudice to the applicant’s interests against the length of the overall delay and the factors that led to that delay, I was not persuaded that the applicant had not been brought to trial within a reasonable time.
III. Disposition
[45] For the foregoing reasons, the application for a stay of proceedings was dismissed.
MacDonnell, J.
Released: January 8, 2015
[^1]: at paragraph 28
[^2]: at paragraph 31
[^3]: at paragraph 31