R. v. Nicely et al., 2015 ONSC 173
COURT FILE NO.: CR-13-90000386
DATE: 20150108
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Gifton Nicely and Shenif Bhanji
BEFORE: Mr. Justice B. P. O’Marra
COUNSEL: I. Bell, Counsel for the Crown/Respondent
M. Osadet, Counsel for the Applicant Nicely
A. De Marco, Counsel for the Applicant Bhanji
HEARD: December 29, 2014
RULING ON S 11(b) OF THE CHARTER
[1] Nicely and Bhanji were both arrested on December 29, 2010 and are jointly charged. They are both scheduled for trial starting January 12, 2015. They have both applied under ss. 11(b) and 24(1) of the Charter to have their charges stayed based on undue delay in getting to trial.
[2] S. 11(b) of the Charter is an individual right of each accused. On January 2, 2015 I allowed the application by Nicely and ordered a stay of his charges. On the same day I dismissed the application of Bhanji and ordered his trial to proceed. These are my reasons.
CHRONOLOGY
[3] The important dates and events on this case are as follows:
December 29, 2010 – Both accused are arrested and charged with possession of cocaine for the purpose of trafficking. Nicely was also charged with possession of the proceeds of crime, being a quantity of money.
December 30, 2010 – Bhanji gets bail after a show cause hearing.
January 5, 2011 – Nicely gets bail after a show cause.
January 27 – April 27, 2011 – A series of set date appearances for both accused.
May 18, 2011 – Bhanji fails to appear and a warrant is issued for his arrest. Nicely is remanded to June 1, 2011.
June 1, 2011 – Nicely adjourns to June 22 to set a date.
June 22, 2011 – Agent appears for counsel for Nicely and adjourns to June 23, 2011, to set a judicial pre-trial.
June 23, 2011 – Nicely is adjourned to July 21, 2011 for a judicial pre-trial.
July 21, 2011 – JPT held – Preliminary Hearing set to proceed on May 2 and 3, 2012. The Crown estimated their evidence for committal would take a half day.
October 28, 2011 – Nicely files Statement of Issues and Notice of Election.
May 2, 3 and 10, 2011 – Preliminary Hearing for Nicely is completed. The extra day was required as the defence called certain witnesses for discovery purposes.
June 27, 2012 – First appearance of Nicely in the Superior Court – JPT set for July 18, 2012. Trial date set for June 3, 2013. Counsel estimate 7 – 8 days with a jury. Counsel for Nicely was available for trial from September 17 through the fall of 2012 but not available from late January 2013 until trial date of June 3, 2013. The Crown was available for dates from January through March inclusive of 2013.
January 6, 2013 – Bhanji is re-arrested.
January 8, 2013 – Bhanji’s bail revoked pursuant to s. 524 of the Code.
January 16, 2013 – Bhanji gets new bail and released on terms.
February 6 – April 15, 2013 – several appearances by Bhanji in the Ontario Court. On April 15, 2013 he waives his Preliminary Hearing and consents to committal for trial.
April 24, 2013 – First appearance by Bhanji in the Superior Court. Bhanji claims he waived his Preliminary Hearing so he could join up with Nicely for trial on June 3, 2013.
May 8, 2013 – Bhanji agrees to proceed to trial on June 3, 2013 with Nicely. The Crown presents a joint indictment. Counsel advise that 3 days will be needed for a Charter application and the jury trial would last 7 – 8 days.
June 3, 2013 – All counsel attend for trial but no judge immediately available. Further JPT held.
June 4, 2013 – Pretrial motions commence. Bhanji applied to exclude evidence based on ss. 8 and 24(2) of the Charter. The Crown anticipated calling 2 witnesses.
June 5, 2013 – As the Charter motion proceeded the Crown became aware of undisclosed evidence that neither the Crown or defence counsel knew of previously. The additional disclosure was provided to counsel.
June 6, 2013 – Counsel for Bhanji advises the Crown and the Court that he will now apply for a stay based on the late disclosure. Counsel for Bhanji sought to adjourn proceedings to Monday June 10, 2013 to allow time to prepare and present the stay application. The presiding judge adjourned the stay application to Friday, June 7, 2013 for submissions.
June 7, 2013 – Submissions on the stay application by Bhanji complete and the Court reserved its decision to June 10, 2013.
June 10, 2013 – The stay application was dismissed. The original s. 8 application was then to proceed.
June 12 – 14, 2013 inclusive – The s. 8 application by Bhanji proceeded intermittently on these dates as Bhanji was ill and from time to time could not remain in attendance. After submissions the ruling was reserved.
June 21, 2013 – The s. 8 motion was dismissed. A new trial date had to be set as neither the trial judge or counsel for Nicely were available to continue with a jury. Counsel agreed to be bound by the pretrial rulings. A new trial date was set for February 10, 2014.
February 10 and 11, 2014 – All counsel attend but no judge available to start the trial.
February 19, 2014 – Further JPT held. Counsel for Nicely now indicates he may bring a pre-trial motion.
February 24, 2014 – The Crown advised that they were prepared to free up dates in November 2014 that would otherwise be for custody matters, as well as dates in late November and December of 2014. Defence counsel were available for 2 weeks from May 16, 2014 and 2 weeks from August 5, 2014.
March 4, 2014 – The Crown was available for trial starting November 10 or 24, 2014. Those dates were not available to the Court. A new trial date was set for January 12, 2015. The time estimate with a jury was 10 days.
May 12, 2014 – New trial date confirmed.
December 29, 2014 – s. 11(b) motions.
THE LAW ON S. 11(b) OF THE CHARTER
ONUS
[4] The Applicant has the legal burden of proving an alleged violation of s. 11(b) of the Charter on a balance of probabilities.
R. v. Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 at para. 33 and 36.
R. v. Farewell (2008) 2008 BCCA 9, 229 C.C.C. (3d) 17 (B.C.C.A.) at para. 77.
RELEVANT PERIOD OF ASSESSMENT
[5] The relevant period of assessment is the overall period beginning at the commencement of proceedings to the end of the trial.
R. v. Nguyen, 2013 ONCA 169 at para. 49.
[6] If the entire time period is not unreasonable, then there is no violation of s. 11(b) of the Charter, even if one or more individual portions of that entire period of time, when viewed in isolation, might appear excessive.
R. v. Allen (1996) 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (O.C.A.); affirmed 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700.
FACTORS TO BE TAKEN INTO ACCOUNT
[7] The Court must consider the following:
(1) Length of the delay;
(2) waiver of any time periods by the accused;
(3) reasons for the delay, including
a) the inherent time requirements of the case
b) conduct of the accused or delay attributable to the accused
c) conduct of the Crown or delays attributable to the Crown
d) systemic or institutional delays
e) any other reason for the delay
(4) prejudice to the accused
R. v. Morin at para. 31.
R. v. Tran, 2012 ONCA 18, para. 20.
PURPOSES OF S. 11(b) OF THE CHARTER
[8] The primary purpose of s. 11(b) of the Charter is the protection of the individual rights of accused persons, namely: (1) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of the exposure to criminal proceedings; (2) the right to liberty, which is protected by trying to minimize exposure to restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, which is protected by attempting to ensure the proceedings take place while the evidence is available and fresh. R. v. Morin, at para. 26 and 27; R. v. Askov, 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 at pp. 450, 451, 474-77.
[9] The secondary purpose of s. 11(b) is to protect the interests of society. One aspect of this secondary purpose is the inherent value in prompt criminal trials, which closely parallels the interests of the accused. However, another aspect of this secondary purpose recognizes that society has a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. As the seriousness of the alleged offence increases, so does the societal demand that the accused be brought to trial. The existence of these dual purposes requires the Court, in the final analysis, to balance the important societal interest in seeing a prosecution through to a result on the merits of the case against the accused and society’s important interest in a timely criminal trial. See: R. v. Morin, at para. 29 and 30, R. v. Askov, at pp. 450-451, 474-477; R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.) at para. 9; R. v. Mahmood, 2012 ONSC 6290 at paras. 9 and 10.
GUIDELINES FOR PROVINCIAL AND SUPERIOR COURTS
[10] The Supreme Court of Canada has announced that, as an “administrative guideline”, the permissible range of systemic delay, after the preliminary intake functions have all been completed, is (1) in the range of eight to ten months in the Ontario Court of Justice; and (2) in the range of six to eight months in the Superior Court of Justice.
R. v. Mahmood at para. 64.
R. v. Morin at para. 49 and 55.
R. v. S.(L.) (1999) 1999 CanLII 3002 (ON CA), 133 C.C.C. (3d) 493 (O.C.A.).
ASSESSSMENT OF THE DELAY
[11] The Court must avoid the application of any mathematical or administrative formula and instead adopt a judicial determination that balances the interests of s. 11(b) protects against factors that either inevitably lead to delay or otherwise cause delay.
R. v. Nguyen, at para. 49.
[12] Whether a delay is unreasonable is not simply a function of the passage of time. It includes a thoughtful consideration of several other constitutionally relevant factors.
R. v. Mahmood, at para. 7.
[13] The degree of systemic delay in any given case is simply one factor that must be considered under s. 11(b) of the Charter. If the “systemic delay” in a case exceeds the administrative guideline, it will simply weigh against the Crown in the overall assessment of “reasonableness” of the total period of delay. It does not, however, automatically compel a conclusion that there has been a violation of s. 11(b) of the Charter.
R. v. Morin, pp. 794-800.
R. v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756 (OCA) at para. 19.
[14] Reasonable intake periods of delay are properly viewed as periods of time in addition to the permissible periods of systemic or institutional delay.
R. v. G. (C.R.) (2005) 2005 CanLII 32192 (ON CA), 206 C.C.C. (3d) 262 (O.C.A.) paras. 15-19.
[15] In assessing the actions of the accused and the Crown under s. 11(b) of the Charter, the Court is not attempting to assign blame to one of the parties for any period of delay. Rather the Court is simply assessing the factual causes for the various delays in the case. Accordingly, there is no need to investigate the intention or motives of the parties. The Supreme Court of Canada indicated in R. v. Morin this assessment is simply an attempt by the Court, to take into account all of the actions “voluntarily undertaken” by either the accused or the Crown which, in fact, caused delay in the proceedings. Once it is determined that the conduct of a particular party has caused a particular delay, then that delay is attributed to or counted against that particular party.
R. v. Mahmood, at para. 62.
MEASURING INSTITUTIONAL DELAY WHERE FURTHER DATES ARE REQUIRED
[16] To measure institutional delay it is not enough for the Court to just take into account how much time it might take counsel to prepare for the case. The Court must take into account the other obligations that busy counsel may have on their calendar. The Court cannot assume that apart from preparation time the defence counsel are immediately available and have no other obligations on their calendar.
R. v. Mahmood, paras. 75, 77.
[17] In setting trial dates counsel must provide the Court with their earliest available dates, so that some accurate measure of any institutional delay might be undertaken on a subsequent s. 11(b) Charter application.
R. v. Lahiry, 2011 ONCA 6780 at paras. 26-37.
[18] Where continuation dates are required beyond the original schedule it is no less important that the record show counsel’s earliest available dates in order to fairly assess alleged institutional delay.
PREJUDICE
[19] The focus of the constitutional protection provided by s. 11(b) of the Charter is the prejudice arising from the delay in disposing of the matter, and not any prejudice that may arise from the fact that he has been charged with the offences.
R. v. Conway (1989) 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289 S.C.C. at p. 305
R. v. Kovacs-Tatar at para. 32-34.
[20] The burden of proof on the issue of prejudice is on the accused. There is no legal presumption of prejudice that flows from any period of delay, no matter how long the delay is.
R. v. Mahmood at para. 82.
[21] The test in assessing prejudice can be expressed as follows:
Does the interest of the accused and society in prompt trial outweigh the interest in bringing the accused to trial?
R. v. Thomson (2009) 2009 ONCA 771, 248 C.C.C. (3d) 477 (O.C.A.) at para. 25.
JUDICIAL PRE-TRIALS
[22] The time required to schedule, prepare and conduct Prehearing Conferences should be considered an inherent requirement of the case for purposes of s. 11(b) of the Charter.
R. v. Nguyen, at para. 54.
R. v. Tran at para. 34.
BALANCING OF INTERESTS
[23] The final stage of analysis requires a balancing of the various individual and state interests that s. 11(b) of the Charter is designed to protect against the factual background of these factors.
TOTAL DELAY TO TRIAL AND WAIVER
[24] The respondent properly concedes that the time to trial warrants an assessment under s. 11(b) of the Charter. The respondent also does not allege waiver of any time periods by either applicant. Since the respondent Bhanji was absent from the case in excess of 19 months due to a fail to appear in the Ontario Court I must consider each application individually.
I. APPLICATION OF NICELY
A) Intake in the Ontario Court of Justice
[25] The dates for the Preliminary Hearing were not set until July 21, 2011. The Crown estimated that the evidence sufficient to obtain a committal for trial could be completed in a half day. Two days were scheduled and a third day was added since the defence wished to examine certain witnesses for discovery purposes. I would apportion the entire time to July 21, 2011 as intake since a Judicial Pre-trial was necessary to fairly canvass the issues and potential length of the Preliminary Hearing. A further 30 days should be added to the intake/neutral period. This recognizes the scheduling and preparation of counsel in the absence of specific earlier dates being provided.
R. v. Lahiry, 2011 ONSC 6780 at paras. 2 and 25-37.
B) Institutional Delay in the Ontario Court of Justice
[26] The institutional delay for the period from August 21, 2011 to the Preliminary Hearing date of May 2, 2011 is 8 months and 11 days.
C) Intake and Judicial Pretrial in the Superior Court
[27] The time up to and including the JPT on July 18, 2012 is intake/neutral time. A comprehensive JPT is both mandated and in the interests of justice before time is scheduled for a jury trial.
[28] The trial was set for June 3, 2013. Counsel for Nicely was available for trial from September 17, 2012 through the fall of 2012.
D) Institutional Delay in the Superior Court
[29] From September 17, 2012 to the first trial date of June 3, 2013 is institutional delay in the amount of 8 months and 17 days.
[30] The trial estimate was for 7-8 days with a jury and 3 days for a pretrial applications. As referred to in the chronology the pretrial motions were not concluded until June 21, 2013.
[31] A new trial date was set for February 10, 2014. Counsel agreed to be bound by the pretrial rulings made in June of 2013.
[32] The fact that the jury trial proper was not even commenced by June 21, 2013 was not due to a request or caused by any action or tactic by Nicely. There were circumstances related to late disclosure, a further stay application by the co-accused as well as the illness of Bhanji that protracted the pre-trial motions.
[33] The total delay to the new trial date was approximately 7 ½ months. I would attribute most of that to institutional delay for Nicely. Allowing some consideration to unanticipated events that protracted the pretrial motions I will apportion 5 months to institutional delay.
[34] In February of 2014 the trial was not reached. The Crown and counsel for both accused were present and ready to proceed. The defence was available for trial for two weeks from May 16, 2014 and August 5, 2014. The Crown was available for dates in November of 2014. The next date available to the Court and all counsel was January 12, 2015. The institutional delay from May 16, 2014 to January 12, 2015 was almost 8 months.
E) Total Institutional Delay in Two Levels of Court:
[35] Ontario Court of Justice 8 months 11 days
[36] Superior Court of Justice 8 months 17 days to first trial date
5 months to second trial date
8 months to third trial date
Total 29 months 28 days
[37] The total institutional delay of almost 30 months is significantly beyond the administrative guidelines.
PREJUDICE
[38] Nicely does not allege that the delay in this case has prejudiced his ability to make full answer and defence.
[39] Nicely faced serious charges and has been on bail with stringent terms for over 4 years. The Crown fairly consented to vary certain terms of the release to facilitate his employment and family duties. While some of the prejudice flows from the very fact of being charged Nicely has experienced limits on his security and liberty interests for an exceedingly long time. He and his counsel have prepared for two prior trial dates to the current one. The sheer length of time that he has been on bail has produced an elevated level of prejudice.
SOCIETAL INTEREST
[40] Nicely is charged with possession of a very dangerous and addictive drug for the purpose of trafficking. There is a significant societal interest in a trial on the merits. However, it must also be said that while the charges are serious the anticipated trial issues are not complex. It is alleged that Nicely and Bhanji were found by police in a car that was found to contain the drugs.
CONCLUSION
[41] While there must be a balancing of the various interests and factors in this case the predominant aspect is the total length of institutional delay. The institutional delay in the Ontario Court and the delay to the first trial date in the Superior Court were unremarkable and reasonable. The institutional delay to the second trial date was reasonable in itself and did not take the total time to an unreasonable point. However, the additional time to the third trial date brought the total institutional delay beyond what is constitutionally acceptable in this case.
[42] I find that Nicely has established that his rights under s. 11(b) of the Charter have been infringed and pursuant to s. 24(1) his charges are stayed.
II. APPLICATION OF BHANJI
[43] Bhanji’s time travel from original arrest to ultimate trial date is significantly different from that of Nicely.
A) In the Ontario Court of Justice
[44] Bhanji failed to appear on May 18, 2011 and a warrant was issued for his arrest. His charge was still at the set date stage and he went AWOL before a JPT could be held to review the potential issues and length for a Preliminary Hearing. He failed to appear before institutional delay began to run.
[45] Bhanji was re-arrested on January 6, 2013. By that time Nicely had been through his Preliminary Hearing, as well as the intake time in the Superior Court. Nicely was scheduled for trial on June 3, 2013.
[46] Bhanji was released on bail on January 6, 2013. He made several appearances in the months of February through April 15, 2013 inclusive. On the latter date he waived his Preliminary Hearing and consented to committal for trial. The case against him on the original charge had not changed and he could have waived his Preliminary Hearing on any earlier date.
[47] In the particular circumstances of Bhanji’s conduct (and lengthy absence) in the Ontario Court I would not attribute any institutional delay at that level.
B) In the Superior Court
[48] Bhanji claims he consented to committal so he could join up with Nicely on the scheduled trial date of June 3, 2013. The Crown agreed to present a new joint indictment on May 8, 2013. It appears that a JPT was not held. I do not find there was any institutional delay for Bhanji up to the first trial date.
[49] By reference to Nicely’s application the total institutional delay from the first trial date through the third is 13 months.
[50] Bhanji submits that the delay in the Superior Court alone is beyond the administrative guideline and constitutes undue delay.
[51] I disagree. While there are administrative guidelines for each level of court (not to be confused with deadlines) the court on such an application must look at the total time and the particular events. Bhanji was absent from the process for a significant time while his co-accused Nicely was working his way through. Once Bhanji was re-arrested he took steps to fast-track his route to an early trial with Nicely and was very successful. However, on any view the total of his institutional delay based significantly on his being AWOL is far less than the administrative guideline for a case that proceeds through two levels of court.
PREJUDICE
[52] Bhanji has been on two forms of release for various time periods from his arrest on December 29, 2010. Not surprisingly, the release after his arrest for failing to appear had stringent terms that approximate house arrest. The increased intrusion into his freedom of movement on the second bail is directly linked to his failure to appear in the Ontario Court.
[53] I understand the Crown consented to certain bail variations that facilitated his work and education.
[54] Ironically, Bhanji will be seeking to adjourn the current trial date if this motion is dismissed in order for him to participate in a work project flowing from continuing education.
SOCIETAL INTEREST
[55] As with Nicely, there is a significant societal interest in a trial on the merits where Bhanji is alleged to have possessed cocaine for the purpose of trafficking.
CONCLUSION
[56] In balancing the various factors and interests I am not satisfied that Bhanji’s rights under s. 11(b) have been denied. His application is dismissed.
Mr. Justice B. O’Marra
Date: January 8, 2015