R. v. F.L., 2015 ONSC 2936

COURT FILE NO.: CrimJ(P) 670/14

DATE: 20150504

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown/Respondent

– and –

F. L.

Applicant

E. Beaton, for the Crown

A. Diniz, for the Applicant

HEARD: May 1, 2015

Ruling on s. 11(b) Application

Ricchetti J.:

THE CHARGES

[1] F.L.is charged with sexual assault, touching for a sexual purpose on a person under 16 years of age, and invitation to touch for a sexual purpose on a person under 16 years of age.

[2] The charges arise from allegations by F.L.’s step daughter, S. C., that over the years F.L. engaged in various sexual activities with her. These allegations were first reported in 2010. However, charges were not laid against F.L. until December 18, 2012.

[3] This matter is scheduled to be tried commencing June 8, 2015 for 5 days.

THE APPLICATION

[4] F.L. brings this motion seeking an order staying the charges on the basis that F. L.’s s.11(b) Charter rights have been infringed.

THE FACTS

[5] S.C. alleges that F. L., her step father, over many years starting when she was six years old until she was about 14 years old, engaged in sexual activities with her. S.C. is now 17 or 18 years old. These allegations were first made in 2010. However, after an investigation, no charges were laid at that time. The allegations arose again in 2012.

[6] On December 18, 2012, F.L. was charged. F.L. was released after a bail hearing on the same day. F.L. was remanded to January 21, 2013.

[7] On January 21, 2013, F.L. was remanded to February 25, 2013. Disclosure was made.

[8] On February 25, 2013, F.L. was remanded to March 18, 2013. Additional disclosure was made.

[9] On March 18, 2013, F.L. was remanded to April 8, 2013 to be spoken to rather than a pre-trial date because attending defence counsel could not confirm a pre-trial date for Defence counsel.

[10] On April 8, 2013, a judicial pre-trial was available for April 25, 2013 but was scheduled for May 9, 2013 to accommodate Defence counsel’s schedule.

[11] A judicial pre-trial was held on May 9, 2013. A preliminary hearing date was set for March 12 and 13, 2014.

[12] On the evening of March 11, 2014 or the early hours of March 12, 2014, S.C. was admitted into the hospital “on a Form”, meaning under the Mental Health Act. S.C. was not available for the preliminary hearing scheduled for that morning.

[13] The Crown sought an adjournment on March 12, 2013. The Defence opposed. The matter was adjourning to April 2, 2014 to be spoken to.

[14] On April 2, 2014, the Crown sought an adjournment to consider its position on the charges in light of the health developments of S.C.. The matter was adjourned to April 23, 2014.

[15] On April 23, 2014, preliminary hearing dates were available on April 28 and 29, 2014. However, the Crown was not available until September. As a result, the preliminary hearing was scheduled for November 18 and 19, 2014.

[16] On November 18, 2014, F.L. was committed to trial.

[17] On November 28, 2014, F.L. made his first appearance in Superior Court. A pre-trial date was set for February 17, 2015.

[18] On February 17, 2015, at the pre-trial, Defence counsel for the first time raises issues of delay. A trial date was set for June 8, 2015 for 5 days.

THE LAW

Approach to Section 11(b) Applications generally

[19] The onus is on the Defence to establish a breach of the Charter on the balance of probabilities.

[20] Section 11(b) of the Charter states the following:

11. Any person charged with an offence has the right

(b) to be tried within a reasonable time

[21] The interests that the right to trial within a reasonable time are designed to protect our liberty, security of the person, the presumption of innocence, and the right to a fair trial. See R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199.

[22] The analytical framework for assessing delay was set out by Sopinka J., in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 at para 26. The analysis requires the consideration of the following factors:

(i) the length of the overall delay;

(ii) waiver of time periods;

(iii) the reasons 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;

(e) other reasons for delay; and

(iv) prejudice to the accused.

See also R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at 18.

The Analytical Framework

Length of Overall Delay

[23] The length of the overall delay is calculated from the date the information is sworn to the date the trial is scheduled to end. See R. v. Nguyen, 2013 ONCA 169 at para 49.

[24] The first factor, overall length of the delay, is a screening mechanism to determine whether an inquiry into the reasonableness of the delay is warranted. If the overall length of the delay, when considered in the context of all the circumstances (including whether the accused is in custody), is unexceptional, no inquiry is required. Where an inquiry is warranted, time periods waived by the accused should be deducted from the overall length of the delay before considering the reasons for any remaining delay. See R. v. Tran, 2012 ONCA 18 at para 21 and R. v. Milani, 2014 ONCA 536.

[25] In this case, both Defence and the Crown agree that a sufficient length of time has passed and that the court should conduct an inquiry into the reasonableness of the delay.

Waiver

[26] The court is to consider any waiver of time periods by the accused provided that the waiver is clear, unequivocal and given with full knowledge of the rights being waived and the effects of the waiver.

[27] Neither party suggest that the Defence has waived any delay in this case.

Reasons for the Delay

[28] The court must then proceed to consider the reasons for the delay. The reasons for the delay requires a consideration of the following:

The inherent time requirements refer to those activities necessary to prepare a case for trial. This inherent time includes what is sometimes called "intake time" for the swearing of the Information, retaining counsel, bail hearings, collecting, providing and reviewing disclosure. Inherent time also includes time for pre-trials, time to get the case ready for preliminary inquiry, the preliminary inquiry and trial. The more complex a case is, the more time will be required to proceed to trial. See Morin at para 36. The time required to begin and conclude a trial is considered part of the inherent time on the condition the court is reasonably available to complete the case and the matter proceeds as scheduled. See Morin at 41; R. v. Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425 at 95; Tran at 54-56. Inherent time requirements are viewed as "neutral" in a s. 11(b) analysis. See Morin at paras 41-43.

The actions of the accused involve all activities of the accused that contributed to the delay. This may include: requests for remands; motions to resolve legal issues, such as attacks on search warrants; change of venue applications etc. This inquiry does not involve the assessment of blame. See Morin at para 39.

The actions of the Crown refer to all actions taken by the Crown that have contributed to the delay. Delays that are due to the actions of the Crown and its officers weigh in favor of the accused. See Morin at para 41.

The limits on institutional resources refer to the ability of the state to accommodate the parties when they are ready for trial. The focus here is on the ability of the state to provide sufficient resources to prevent unreasonable delay. See Morin at para 42. Institutional delay only begins once all parties are reasonably ready for trial and the Court cannot accommodate them. See. Lahiry at 34; Tran at 32; R. v. Stelle at 19. The Supreme Court has established a guideline of acceptable institutional delay, being eight to ten months in Provincial Courts, and an additional six to eight months after committal for trial. See Morin at para 50; Godin, at para 5.

Other reasons for the delay refer to any other reasons for delay that are not captured by the categories already referred to.

Assessment of whether the delay is unreasonable

[29] Where the court embarks upon an inquiry into the reasonableness of the delay, the court must determine whether the delay is unreasonable having regard to the interests s. 11(b) seeks to protect, the explanations for the delay, and the prejudice to the accused. See Morin, at para. 32 and Tran at para. 24. The practical application of the s.11 (b) analytical framework was described by Cromwell J. in Godin at para. 18 as follows:

Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interest, that s.11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

[30] An analysis of delay is not determined 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 inevitability lead to delay or are otherwise the cause of delay”. See Morin at para 26.

Prejudice

[31] Prejudice refers to prejudice to the accused as a result of the delay. As set out above, one of the two main purposes of s. 11(b) of the Charter is the protection of an accused’s rights under the Charter to security of the person, liberty and a fair trial. In Godin, Cromwell J. A. wrote at paras 31-31:

Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence; cross-examine witnesses, or otherwise to raise a defence. See Morin at pp. 801-3.

[32] An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights.

[33] In addition to actual prejudice, prejudice may also be inferred from the length of the delay itself. Prejudice may be inferred where the delay between arrest and trial is simply too long. See Tran para 23. As Sopinka J. wrote in Morin at para 56, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.”

[34] Failure to mitigate prejudice by the accused is a relevant factor in assessing the degree of prejudice. See Morin at 62; R. v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756, 192 C.C.C. (3d) 91 (C.A.) at 36-39.

[35] It must be remembered that there will always be some prejudice to a person charged arising from the stigmatization of the accused, loss of privacy, stress and anxiety resulting from his arrest and being charged. It is the prejudice to the person charged which arises from unreasonable delay which must be considered. In Mills, the Supreme Court had this to say:

149 Although, to some extent, these negative consequences are unavoidable, one of the purposes of s. 11(b) is to limit the impact of such forms of prejudice to the accused by circumscribing the time period within which they may occur. In other words, while some such prejudice to the accused may be seen as a cost of the very right to a hearing, a fortiori a public one, it must nevertheless be kept to a minimum by a speedy determination of criminal responsibility. Hence, in my view, such forms of prejudice leading to impairment of the security of the person may, in and of themselves, constitute a violation of s. 11(b) if allowed to foster over-long.

[36] The presence or absence of prejudice may reduce or lengthen the amount of delay that is reasonable. See Seegmiller at para 28.

Societal’s Interests

[37] The secondary purpose of s. 11(b) is a societal interest to ensure that trials which proceed promptly enjoy the confidence of the public and satisfy the public’s interest in seeing that those charged with criminal offences are brought to trial and dealt with according to law. See Morin at para 28; Askov at para 43.

THE POSITION OF THE PARTIES

[38] The Defence submits that the total Crown and institutional delay is 22 months, 6 days.

[39] The Crown submits that the total Crown and institutional delay is approximately 11 months, 26 days.

ANALYSIS

[40] I note that counsel have calculated time periods to June 8, 2015, the beginning of trial rather than the end of trial as is required by the authorities. See. R. v. Nguyen, 2013 ONCA 169 at para 49. However, this is scheduled to be a 5 day trial. The additional 5 days would not make any difference in the analysis or the outcome of this application.

Time Periods

Time from December 18, 2012(charge) until May 9, 2013 (pre-trial) - (142 days)

[41] The Defence concedes that the period of time (14 days) between April 26, 2013 and May 9, 2013 is Defence delay.

[42] I would add to this, between March 19, 2013 and April 8, 2013 (22 days) when a pre-trial date could have been set but for duty counsel who was not in a position to provide a pre-trial date because Defence counsel could not be reached.

[43] This leaves 107 days for such matters as disclosure, scheduling, and holding a pre-trial. In my view, 107 days is a reasonable period of time for intake/inherent time in the Ontario Court of Justice until the scheduling of a preliminary hearing.

[44] I reject Defence counsel’s submission that because the police knew of the allegations two years earlier, the police should have been ready to proceed with disclosure and other steps immediately upon F.L.’s arrest. The intake/inherent time includes the time the Defence needs for the case including a review of the disclosure, scheduling and preparing for the pre-trial.

[45] This matter, in my view, moved reasonably expeditiously from December 18, 2012 until May 9, 2013 when the preliminary hearing was set. I find there was no Crown or institutional delay during this period of time.

Time from May 10, 2013(pre-trial) to March 12, 2014 (preliminary hearing) - (306 days)

[46] Both counsel agree that one month inherent time should be allocated as preparation time for the preliminary hearing.

[47] Both counsel agree that the balance, 9 months, 2 days (276 days) is institutional delay.

Time from March 12, 2014(preliminary hearing) to November 18, 2014 (new preliminary hearing date) - (250 days)

[48] The preliminary hearing did not proceed on March 12, 2014 because S.C. was not able to attend. S.C. had been hospitalized on the evening/early morning before she was to have testified at the preliminary hearing. Realistically, after this hospitalization on a Form under the Mental Health Act, the preliminary trial was not likely to be heard for some period of time. The Crown so advised the court: “she is not anticipated to be out any time soon”.

[49] The Defence concedes that there is 21 days of intake/inherent time from March 13, 2014 until April 2, 2014 for the re-scheduling of the preliminary hearing. I agree.

[50] The Defence submits that the balance is Crown/institutional delay. I disagree.

[51] In my view, the further period of time from April 2, 2014 until April 23, 2014 (21 days) when the Crown decided to consider whether to proceed with the charges in light of the developments regarding S.C.’s health, is fairly attributed to neutral time. See R. v. A.J.W. 2009 ONCA 661 at para 35. The Defence consented to this adjournment and it was reasonable for them to do so. The period of time was minimal and could have been profoundly beneficial to F.L.

[52] The Crown submits that the time period between April 23, 2014 and November 18, 2014 is intake time. I disagree.

[53] On April 23, 2014, the court had court time available for the preliminary to be heard on April 28 and 29, 2014. Defence was available. The Crown was not. As set out in A.J.W, some inherent delay is attributed when a delay arises from the illness of S.C.:

[35] Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case. As Hill J. said in R. v. Hoffner, 2005 CanLII 32924 (Ont. S.C.), at para. 41: “Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process. In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral.” Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral. If the time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay.

[54] As a result, the question is whether the entire period of time after April 28, 2014 to November 18, 2014 should be attributed to the Crown or a portion to be part of the inherent time for the case because of S.C.’s illness. Unfortunately, there is little evidence when S.C. was or would be able to testify. S.C. testified at the preliminary in November 2014. Was S.C. available on April 28, 2014? It is not known.

[55] As a result, the only finding available on the evidence is that the time from April 28, 2014 to November 18, 2014 is delay attributed to the Crown’s unavailability.

[56] I attribute 204 days to Crown delay.

Time from November 28, 2014(SCJ intake) to June 8, 2015(trial) - (202 days)

[57] On November 28, 2014 the parties appeared before Justice Durno. Justice Durno stated:

If, as a result of any proceedings before today’s date or as a result of the dates we are setting, there are 11(b) issues, it is counsel’s responsibility to let me know so that I can attempt to address the issue, if necessary, give you a relatively early date for the 11(b) application so that everyone knows whether the case is going to proceed or not.

[58] The Defence did not raise any s. 11(b) issue on that date. As a result, Justice Durno proceeded to provide counsel the February 17, 2015 pre-trial date.

[59] The period of time from November 28, 2015 to February 17, 2015 is allocated by the Defence as intake/inherent time in the Superior Court. I agree.

[60] As a result, the final period of time to be considered is from February 17, 2015 (pre-trial date) until June 8, 2015 (trial date).

[61] The Defence initially conceded that 37 days during this period were attributed to defence delay because the Defence had indicated on February 17, 2015 that it was not available for a trial date until April or May, 2015. As a result, because of Defence counsel’s availability, the court canvassed trial dates commencing April 27, 2015. A date of June 8, 2015 was eventually selected by counsel.

[62] Defence counsel now seeks to attribute the time from the pre-trial to trial as institutional delay except for 30 days preparation time. I disagree. The Defence did not alert the court to any s. 11(b) concerns. More importantly, the only reason trial dates of April 27, 2015 and later were offered by the court was because Defence counsel advised he was not available for trial before then.

[63] In my view, a reasonable allocation of institutional delay is April 27, 2015 until June 8, 2015. Before then, Defence counsel was not available and I allocate that time to the Defence.

[64] 42 days will be allocated to Institutional delay.

Total Crown/Institutional Delay

[65] The total amount of Crown/Institutional delay is 522 days or approximately 17 months.

Total Time to trial

[66] The total time from arrest until trial is approximately 902 days or approximately 29 months 21 days.

Reasons for the Delay

[67] A significant part of the delay (204 days) arises from the complainant’s hospitalization on the evening before she had to testify at the preliminary hearing. In my view, this is a factor which should be considered.

Actions of Defence

[68] The actions of F.L. despite being short of waiver must be considered. See Qureshi at paras 8-10. These time periods have been taken into account in the above analysis. It is also important to note that the Defence and Crown consented to a number of dates without expression of what earlier dates might have been available and which counsel could not make such earlier date(s).

Societal’s Interests

[69] The facts in A.J.W. are not very different than the case at bar. In A.J.W. there was a total delay of approximately 30 months. 15 months were attributable to Crown or institutional delay. On the issue of societal interest, the Court of Appeal had the following to say at para 47:

The societal interest in pursuing this case to a trial on the merits was high. These were serious allegations of sexual abuse against a vulnerable victim. That interest has to be balanced against the prejudice to the respondent and his legitimate interest in a speedy trial. This case is a close one. The defence was the cause of only a very small amount of the delay, perhaps two months. I am, however, satisfied that the delay was not unreasonable given that the Crown and institutional delay falls well within the Morin guidelines and that the longest period of neutral delay was the result of the illness of a Crown witness.

[70] The societal interests in this case being tried on the merits are also high.

Prejudice

[71] The court must consider the prejudice to F.L.’s interests. F.L. testified on the application. He alleges he has suffered prejudice as a result of the delay in his trial.

[72] There is no suggestion that F.L.’s ability to make full answer and defence has been impaired as a result of the delay.

[73] I accept that there is some prejudice arising from the stigma and pressure of having these charges outstanding. I also accept that F.L. has had to incur additional legal fees arising from the aborted March 12, 2013 preliminary hearing. Finally, I accept that these charges, not entirely because of the delay, have put stress on F.L.’s marriage.

[74] I do not accept that F.L. has suffered significant additional prejudice because of his bail conditions. One of the bail conditions was that F.L. had to deposit his passport. F.L. suggests that he has been unable to visit his elderly mother in Brazil. However, I note that no letters were sent to the Crown seeking a variation of this term of the bail release. I also note that no application was brought to vary the terms of bail. F.L. makes this a major issue now but did not do so for the past two and a half years.

[75] I do accept that some prejudice arises from another bail condition that F.L. not be allowed with a female under 16 years of age. F.L. has a daughter who is very young. F.L. has not been able to see her this entire period of time. I agree that this would be an issue for a father and result in prejudice to F.L. arising from the delay.

[76] Defence counsel raises an issue regarding delayed disclosure by the Crown. In fact, the Defence submits that disclosure is still not complete. How can this allegation be taken seriously when the Defence has proceeded to complete the preliminary, had two judicial pre-trials, scheduled a trial date without bringing any application regarding the Crown’s disclosure or lack of disclosure. I am not persuaded on the evidence before me that any outstanding disclosure is material in my determination of this application.

CONCLUSION

[77] I accept that this is at the high end of the Morin guidelines stemming from the aborted preliminary hearing and the inability to re-schedule an earlier date to conduct the preliminary hearing. This is neither a very legally complex case but neither is it simple. However, there are serious human issues which engages societal’s interests to have this matter tried on the merits.

[78] While there is prejudice established in this case arising from not having these types of allegations dealt with quickly, this is balanced by the societal needs for a determination on the merits and the lack of any clear action by the Defence to push this matter on.

[79] Considering all of the factors, while this case may be close, I am not persuaded that the delay in this case was unreasonable.

[80] The application is dismissed.

Ricchetti, J.

Released: May 5, 2015