ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-364-004

DATE: 2015 09 24

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Michael Williams

Applicant

S. Thompson, for the Crown
Respondent

A. Page, for the Accused
Applicant

HEARD: September 14, 2015

SECTIONS 11(b) CHARTER APPLICATION:

REASONS FOR JUDGMENT

Woollcombe J.

A. INTRODUCTION

[1] The applicant, Michael Williams, is before the court charged as follows:

That he, the said Michael Omar Williams, unlawfully did, at the City of Mississauga, in the Province of Ontario, on or about the 21st day of October in the year 2013, import into Canada a schedule I controlled substance, to wit: Coca (Erythroxylon), its preparations, derivatives, alkaloids and salts, namely Cocaine (benzoylmethylecgonine), contrary to Section 6(1) of the Controlled Drugs and Substances Act.

[2] The applicant’s trial is scheduled for 5-7 days beginning October 13, 2015.

[3] He was arrested on October 21, 2013 and was charged on October 22, 2013. By the time of his trial, he will have been before the courts charged for one week short of two years. He submits that this delay constitutes a breach of his s. 11(b) Charter right to trial within a reasonable time and that his charge ought to be stayed.

[4] For the reasons that follow, the stay application is dismissed.

B. FACTS

a) The Arrest

[5] Mr. Williams was arrested on October 21, 2013 at Pearson International Airport after his arrival in Toronto on a flight from Jamaica. It is alleged that the police located cocaine in his luggage. He is a citizen of Jamaica and the United States and normally resided in New York. As such, he was in a reverse onus bail situation.

b) Proceedings in the Ontario Court of Justice

[6] Mr. Williams’s first appearance was on October 22, 2013. The matter was adjourned to October 25, 2013 without a bail hearing being commenced.

[7] He appeared before the Justice of the Peace on October 25, 2013. Duty counsel indicated that an attempt had been made to contact family members but that a voicemail message had not yet been returned. The Crown indicated that it would be seeking a detention order. The case was adjourned to October 29, 2013 for a bail hearing.

[8] There were further appearances awaiting a bail hearing on October 29, 2013 and November 8, 2013. Disclosure was provided on November 15, 2013.

[9] On November 21, 2013, a Crown pre-trial was conducted. The Crown advised defence counsel that a discovery hearing was possible as an earlier date would be available and committal was a near certainty. Defence counsel requested a preliminary hearing and counsel agreed that one day would be required.

[10] On November 22, 2013, a judicial pre-trial was scheduled for December 6, 2013, the first available date.

[11] On December 6, 2013, a judicial pre-trial was held before Justice Stribopolous. The Crown again raised the issue of conducting a discovery, rather than a preliminary hearing, if committal was not in issue. Counsel for the applicant indicated that she wished a preliminary inquiry. She further advised that the voluntariness of Mr. Williams’ statements at both primary and secondary inspection would be at issue. A one day preliminary inquiry was set for February 13, 2014. The date of December 9, 2013 was suggested as a possible date for the preliminary inquiry, but none of defence counsel, Crown counsel, or the officer-in-charge was available.

[12] After the date for the preliminary inquiry had been set, Crown counsel wrote to defence counsel. In a letter of December 10, 2013, Crown counsel advised that the Crown would not lead the applicant’s utterances and statements at the preliminary inquiry. A further letter, sent on December 31, 2913, indicated that the Crown would call two witnesses at the preliminary inquiry: one CBSA officer and one RCMP officer. The Crown’s position was that committal was inevitable, given the cocaine that was located in the applicant’s luggage at the secondary examination.

[13] There were a number of court appearances in December 2013 and January 2014, both in person and by video, relating to the scheduling of a bail hearing. There were repeated adjournments of the bail hearing by the applicant in order to ensure that there was a viable release plan put forward.

[14] Ultimately, a contested show cause hearing was held on January 30, 2014. Mr. Williams was released on conditions. Although he was granted judicial interim release on the importing cocaine charge, he remained detained because of immigration issues. He was not released until February 22, 2014.

[15] The preliminary inquiry began on February 13, 2014 before Justice McLeod. Other matters were dealt with first and this matter did not commence until 11:50 a.m. By the end of the day, the evidence of CBSA officer was completed, but the examination-in-chief of the RCMP officer was not finished. Counsel were offered the date of February 26, 2013 for the continuation of the preliminary inquiry, but the Crown was not available. Both counsel were available on March 7, 2013 and that date was set.

[16] On March 7, 2013, the evidence of the RCMP officer was completed and counsel made submissions on the issue of committal. At the end of the submissions, Justice McLeod said, “it’s going to take me a while to decide this one”. He offered to return to court the week of May 26, 2014. Defence counsel was not available that week, but was available the week of June 3, 2014. The case was adjourned to June 5, 2014 for a decision with the preliminary inquiry justice saying:

I want to thank both counsel for their submissions, they were very helpful and at the same time making my job much harder.

[17] On June 5, 2014, Justice McLeod committed the applicant to stand trial. After doing so, he noted that both sides had made arguments that were very good and that:

…it sometimes takes great pause to be able to come to a conclusion such as the one that was rendered here today…the way that Ms. Page was able to at least articulate the nuance of it where it related to this made it a very close one I would suggest. I just wanted to put that on the record that it was well thought out…

[18] Justice McLeod adjourned the matter to the Superior Court of Justice assignment court on June 20, 2014.

c) Proceedings in the Superior Court of Justice

[19] On June 20, 2014, the matter was spoken to in Superior Court assignment court. A judicial pre-trial date of July 16, 2014 was offered, but defence counsel was not available until August 1, 2014. A judicial pre-trial was set for August 1, 2014.

[20] On August 1, 2014, a judicial pre-trial was conducted and a trial date scheduled. At that appearance, Justice Durno asked defence counsel when she was first available for five to six days. She indicated September. She was advised that “absent any 11(b) issues”, the first available date was April 27, 2015. She responded that she had dates in September, October, November, December, January and March, but that she would take the first available date in April. Justice Durno again said, “That’s provided there’s no 11(b) issues those are the dates…” Counsel said nothing further about seeking an earlier date and the trial was set for April 27, 2015.

[21] Shortly before the trial date, the Crown first disclosed:

a. The names and statutory declarations of the two immigration officers to whom the applicant was alleged to have made statements, both of whom were to be called at trial;

b. That a search warrant had been executed on digital devices seized from the applicant on his arrest, and that the search revealed thousands of emails, phone calls and texts, as well as video clips;

c. That an expert would be called at trial to provide opinion evidence as to the street value of the seized cocaine.

[22] The late disclosure resulted in the adjournment of the trial from April 27, 2015. On April 27, 2015, a new trial date was set. Justice Durno indicated that the first available date was September 21, 2015. Crown counsel was available that day but defence counsel was not. The next available date was October 13, 2015 and the trial was set for that date.

d) Prejudice

[23] Mr. Williams has filed an affidavit and was cross-examined. He claims prejudice in a number of areas.

a. Inherent prejudice from stigmatization, loss of privacy, stress and anxiety from the disruption of his life, work, family, and uncertainty about the outcome

b. Actual prejudice flowing from:

i. Having spent 4 months in custody followed by 15 months of house arrest;

ii. His inability to return to the United States to see his wife and two sons. The applicant’s bail conditions precluded him from leaving Ontario. When he sought the Crown’s consent for a bail variation that would permit him to travel to New York, the Crown refused consent;

iii. Physical and mental health issues including headaches, insomnia, anxiety and depression caused by being away from his family, inability to provide his family with financial support and inability to supervise his sons.

iv. A loss of ability to parent his sons as he would wish. He says that he took a very active role in both their academic and athletic pursuits and that his absence has led to their marks declining and to both of them having difficulties at school, with their sports teams and with poor behaviour;

v. Setbacks in both his farm and bar businesses in Jamaica. While his partner has continued to run the bar, and his uncle has continued to run the farm, each business has become less profitable. He explains this as resulting from him not fulfilling the important functions that he did for each, including those done in the United States and in visits to Jamaica. His employees are aware that he is not able to continue in his supervisory role and take advantage of this;

vi. Loss of an ability to start and develop a planned track club in New York;

vii. Loss of ability to earn income from his autobody shop in New York.

[24] The applicant was cross-examined on his affidavit. The Crown’s position is that the prejudice to the applicant flows from the fact of him being charged, rather than the delay. She points out that delay was not even a live issue for the applicant until the first trial was adjourned. She further highlights that the applicant could have taken steps to have his bail varied earlier and did not do so. She says that he could continue to oversee his Jamaican businesses from Canada and that his business in New York was not profitable by the time of his arrest. The track club he was trying to develop could have been established in Canada. Her position is that the applicant, by not telling his sons the truth about why he is in Canada, has contributed to their confusion and anxiety.

C. THE APPLICABLE LEGAL PRINCIPLES

[25] The legal analysis that is required on s. 11(b) Charter applications is well-established. Where an accused contends that he or she has not been tried within a reasonable time, the accused has the burden of establishing the alleged violation of s. 11(b) of the Charter on the balance of probabilities. The leading Supreme Court of Canada decision, R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 sets out the following factors to take into account in determining whether there has been a violation of s. 11(b) of the Charter:

a. The length of the delay;

b. Any waiver of time periods by the accused;

c. The reasons for the delay, including:

i. the inherent time requirements of the case;

ii. the conduct of the accused or delays attributable to the accused;

iii. the conduct of the Crown or delays attributable to the Crown;

iv. systemic or institutional delays;

v. any other reasons for delay; and

d. Any prejudice to the accused.

[26] Once all of these relevant factors have been analyzed, the final stage of the 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 the entire case, and an understanding of the total length of the delay and the various causes of that delay. The court must balance the societal interest in seeing that persons charged with offences are brought to trial against the interest of both society and the accused in prompt adjudication. Before staying charges, the court must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. See R. v. Morin, at pp. 788, 809-810; R. v. Williamson, 2014 ONCA 598 at paras. 58-68.

D. APPLICATION OF THE LEGAL PRINCIPLES TO THE FACTS

a) The length of the delay

[27] The total delay in this case was twenty-four months less one week. This is a length of time that warrants scrutiny.

b) Any waiver of time periods

[28] The Crown submits that on August 1, 2014, defence counsel implicitly waived 30 days of delay. The submission made is that at the assignment court, Justice Durno said that April 27, 2015 was the first trial date available in the absence of there being s. 11(b) concerns. Crown counsel submits that by choosing not to seek an earlier trial date, the applicant implicitly waived some period of time as an earlier trial would have been available had it been requested. I am not satisfied that there was a clear waiver of this time period and will deal with this delay further below.

c) The Reasons for the Delay

i) Delay in the Ontario Court of Justice

[29] I turn first to the time spent in the Ontario Court of Justice.

October 22-December 6, 2013 – Intake

[30] The accused was charged on October 22, 2013. Reasonable time for intake is considered neutral in the s. 11(b) analysis. Intake includes the time that is necessary for an accused to retain counsel, deal with bail, disclosure and police paperwork. The time allowable for intake varies depending on the nature of the case and the tasks to be completed.

[31] In this case, the intake requirements took from the time of the charge, on October 22, 2013 until the completion of the judicial pre-trial on December 6, 2013 and setting of the date for the preliminary hearing. This is 45 days. The parties both say this time is neutral and I agree.

December 6, 2013 – February 13, 2014 – Delay to preliminary inquiry

[32] When the preliminary hearing was set on December 6, 2013, it was set for the first date on which the system could accommodate it and the officer in charge was available. This was for February 13, 2014, 69 days later. The case law makes clear that the institutional delay clock does not run for this entire period. (See: R. v. Lahiry, 2011 ONSC 6780 at paras. 26-33). There needs to be a period of time for counsel to prepare and be ready for the preliminary inquiry.

[33] Counsel for the applicant submitted in her written argument that all of the delay should be viewed as institutional delay. During the oral argument, she conceded that 30 days are properly inherent time, and thus neutral. Crown counsel says that all of the time is inherent and neutral. She argues that defence counsel was still dealing with the bail issue and needed time to prepare for the preliminary inquiry.

[34] In this case, some period of time was certainly needed to prepare for the preliminary inquiry. But, this was going to be a straight-forward preliminary inquiry, particularly after the Crown advised that the applicant’s statements would not be adduced. In my view, it is reasonable to attribute 30 of the 69 days as inherent time that was required for the parties to be ready to proceed. The remaining 39 days are institutional delay.

February 13-March 7, 2014 – Delay to complete the preliminary inquiry

[35] On February 13, 2014, the preliminary inquiry did not begin until almost two hours into the court day. At the end of the day, it was adjourned to be completed. Defence counsel says that the delay starting this matter meant that it was not able to be completed in the one day, and that this delay is institutional because the system did not accommodate the matter. Crown counsel says that while the matter was not started until 11:50, the transcripts reveal that the time needed to complete the preliminary inquiry was under-estimated by counsel, and that even if the matter had started at 10:00 a.m., it was inevitable that it would have run into a second day. On this basis, she says that the delay is inherent and thus neutral.

[36] It is difficult to tell with certainty whether, had the entire day before Justice McLeod been dedicated to this manner, it would have been completed. I do know that the hearing was started almost two hours later than would be expected, that there was another matter that interrupted for some period in the afternoon, and that there was a further break for the parties to obtain from the trial coordinator a continuation date. The transcript for the preliminary inquiry is comprised of 95 pages the first day and 88 the second. I am inclined to think that this could have been done in one day, had there been a full court day allocated to it. In these circumstances, I conclude that the 22 day delay from February 13, 2014 until March 7, 2014 is correctly understood as institutional delay.

March 7-June 5, 2014 – Delay awaiting decision on committal

[37] The preliminary inquiry was completed on March 7, 2014. Judgment was rendered on committal 90 days later. The defence suggests that it was reasonable for the justice to take a brief period to reflect and prepare reasons on the issue of committal. She suggests that 7 days would have been a reasonable delay for a decision, and that that this time should be inherent and neutral. The rest of the delay, until May 26, 2014 (when the justice indicated he could deliver reasons) is said by defence counsel to be institutional delay. Counsel says that this delay was caused by the fact that Justice McLeod did not have the ability, for resourcing reasons, to simply retire to his Chambers and write the decision. The Crown says all of the delay until May 26, 2014 is inherent time.

[38] Generally speaking, the time taken by judges to deliver their reasons is properly understood as inherent time for a case. See: R. v. Wong 2010 ONSC 2059 at para. 21; aff’d 2012 ONCA 286 at para. 3. The critical question is whether it was reasonable for the justice at the preliminary inquiry to take the time that he or she did to deliver reasons on the committal. See: R. v. Cranston (2008), 2008 ONCA 751, 244 O.A.C. 328, at paras. 50-51.

[39] In this case, defence counsel made fairly detailed submissions as to whether an inference of knowledge on the part of the applicant could be drawn. She referred to both relevant case law and the facts that were in evidence. She invited the justice to discharge on the basis that an inference of knowledge was speculative. It is clear to me that at the end of the submissions on committal, Justice McLeod, quite reasonably, felt that he needed time to reflect carefully on the issues that had been raised.

[40] When committal is opposed, the preliminary inquiry justice is not expected to provide an answer immediately. Defence counsel are fully entitled to contest committal, but doing so increases the inherent time required to move a case along. The period of time that is reasonable for a decision to be rendered depends on a number of factors including, among others, the number of witnesses to testify at the preliminary inquiry, and the complexity of the legal issues. What is reasonable will vary from case to case.

[41] In this case, there were only two witnesses to testify at the preliminary inquiry. The only question to be determined was whether an inference of knowledge was available on the evidence. While the issues were not particularly complex, counsel made arguments before Justice McLeod that required consideration. His reasons reflect that he did so. I find that it would have been reasonable for the justice to reserve his decision on the issue of committal for a period of between 30 and 45 days in this case. This period was needed for him to reflect and consider the evidence and submissions and to craft a judgment responsive to the issues that had been argued. Where precisely on the spectrum of 30 to 45 days was reasonable is difficult to determine with precision. For the purpose of this application, I will attribute 30 days of the delay to inherent time for the case and the rest to institutional delay.

[42] It appears to me from the transcript that Justice McLeod was prepared to bring counsel back and deliver his ruling in the week of May 26. Defence counsel was not available until the following week. That brief delay is attributable to the defence.

[43] The result of my conclusions is that of the 90 day delay, 30 days are inherent time, and thus neutral, and 9 days are attributable to the defence availability. The remaining 53 days are institutional delay.

June 5-20, 2014 – Delay from committal to assignment court

[44] Defence counsel’s written position was that the period from committal to Superior Court assignment court is institutional delay. The argument advanced before me is that there could have been a JPT much more quickly and before assignment court. Pressed, counsel agreed that there is some necessary intake time in the Superior Court and that this is inherent to the case and so neutral. The Crown says this entire period is intake and thus neutral.

[45] In my view, the time from committal on June 5, 2014 until Superior Court assignment court on June 20, 2014 is part of the necessary and reasonable intake process in the Brampton Superior Court. Accordingly, this period of 15 days is inherent time and is neutral.

Conclusion on the delay in the Ontario Court of Justice

[46] My conclusions as to the time spent in the Ontario Court of Justice is as follows:

Inherent time / 45 days (Oct. 21-Dec. 6/13 Charge to JPT )

Neutral: 30 days (Dec.6-Jan. 5/13 Preparation for preliminary inquiry)

30 days (March 7-April 6/14 Awaiting ruling on committal)

15 days (June 5-20/14 Committal to SCJ assignment court)

120 days total

Institutional 39 days (Jan. 5/13-Feb. 13/14 Delay for preliminary inquiry)

Delay: 22 days (Feb.13-March 7/13 Complete preliminary inquiry)

53 days (April 5-May 29/14 Awaiting ruling on committal)

114 days total

Defence delay: 7 days (unavailable May 26-June 2/14)

ii) Delay in the Superior Court of Justice

June 20-August 1, 2014 – Delay from Assignment Court to JPT

[47] At the Superior Court Assignment Court on June 20, 2014, a judicial pre-trial was set for August 1, 2014. The defence says that the time to arrange the judicial pre-trial should be considered institutional delay. The defence concedes, however, that the applicant was offered a JPT on July 16, 2014, but that counsel was not available. Counsel accepts, therefore, that the delay from July 16, 2014 until August 1, 2014 is properly considered defence delay.

[48] I would not attribute the delay from June 20, 2014 until July 16, 2014 to institutional delay. The time taken to conduct a mandatory judicial pre-trial is part of the intake function of the court and will, necessarily, result in some delay. As the Court of Appeal noted in R. v. Tran 2012 ONCA 18 at para. 34:

…it seems to me that requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.

Accordingly, of the 42 day delay, I would attribute 26 days to neutral intake time in the Superior Court and 16 days to the defence.

August 1, 2014-April 27, 2015 – Delay from JPT to first trial date

[49] The Crown says that at the Assignment Court on August 1, 2014, defence counsel implicitly waived 30 days by not saying anything when Justice Durno advised that April 27, 2015 was the first available trial date absent there being a s. 11(b) issue. Defence counsel says that there was no waiver of the delay and that she put on the record both that she had earlier dates available for trial and that she understood she was being given the first available trial date. At that point, she said that the applicant had no intention of bringing a s. 11(b) Charter argument.

[50] I do not think the record in this case supports a waiver by the applicant of any delay. Defence counsel indicated that she was available for trial in September, October, November, December and March. The record does not support a conclusion that she made a clear choice between an earlier option and a later option. From what counsel said, she appears to me to have accepted what she understood was the first available date in circumstances in which, quite reasonably, she had no intention of bringing a stay application on the basis of s. 11(b) of the Charter. That said, the absence of a request for an earlier trial date is certainly a factor that is relevant to be considered at the balancing stage of this application.

[51] It must be recognized that a trial cannot be set to commence the day after a JPT. In this case, both parties needed some time to prepare for trial. In particular, defence counsel needed time to put together materials for the various Charter arguments that would be advanced by way of pre-trial motions. The Crown needed an opportunity to respond. See: R. v. Lahiry, 2011 ONSC 6780 at paras. 25-37.

[52] The Crown says that in this case, given that the motions were heard over 9 days, 90 days were required for the parties to prepare for trial, including for the motions, and that 90 days should be viewed as inherent and neutral. The rest, the Crown says, is institutional delay.

[53] While I accept that some preparation time was necessary, I would only attribute 60 days of the delay as necessary for trial preparation and, in particular for the voluntariness/Charter statement voir dire. I have reviewed the materials that were prepared and provided to the court for the voir dire. Certainly this preparation would have taken some time, but I think that 60 days is more reasonable in this case than the 90 suggested by the Crown. Accordingly, of the 269 days delay in obtaining a trial date, I would attribute 60 to inherent time needed to prepare for the trial. The other 209 days I would attribute to institutional delay.

April 27-October 13, 2015 First trial date to second trial date

[54] On April 27, 2015, the trial date was adjourned to October 13, 2015. The defence says that of the 169 days, the period of time from April 27 to September 21, 2015 (147 days), the first date on which a trial could be accommodate, is institutional delay. She accepts that because she was unavailable on September 21, 2015, the 22 day delay from then until the trial date of October 13, 2015 is defence delay.

[55] While in her written material the Crown conceded that 147 days of this were attributable to the Crown, she resiled from this position before me. The Crown submits that there were three aspects of late disclosure, as set out above. In summary, she says that part of the late disclosure (the notes of the immigration officers) was because of a late request for those notes by defence counsel. As a result, she says that the defence should be found to be responsible for one third of the 147 day delay.

[56] I do not accept the Crown’s argument that the defence’s request for disclosure is part of the cause of the delay. The notes of the immigration officers should have been disclosed months before they were. They were clearly relevant and appear simply to have been overlooked. Moreover, the disclosure of the fact that the applicant’s devices were searched, and the need for defence counsel to have the opportunity to review what was found on those devices, was a significant reason for the adjournment and would have justified the adjournment had it been the only late disclosure.

[57] In my view, the Crown is responsible for the adjournment of the trial. Therefore, I attribute 147 days of the delay to the Crown and 22 to the defence, as a result of counsel’s unavailability on September 21, 2015.

Conclusion on the delay in the Superior Court of Justice

[58] As a result, the total periods of delay in the Superior Court are:

Inherent time /: 26 days (June 20-July 16/14 - Assignment court to first JPT)

Neutral 60 days (Aug. 1/14-Oct.1/14 – Trial preparation)

86 days total

Institutional delay: 209 days (Oct. 1/14-April 27/15 – Awaiting trial dates)

Crown Delay 147 days (April 27-Sept. 21 - First to second trial)

Defence delay 16 days (July 16/14-Aug 1/14 – Not available for JPT)

22 days (Sept 21-Oct 15/15 – Not available for second trial

38 days total

iii) Total Delay

[59] The result is that there has been a total delay attributable to the Crown and institutional delay of 114 days in the Ontario Court of Justice and 356 days in the Superior Court. This is a total of 470 days, which is about 15 1/2 months. This falls under the 16-18 month guideline established for cases that proceed through two levels of courts.

[60] It is the applicant’s position that Morin establishes a guideline of 6-8 months for a matter to go to trial once it reaches the Superior Court. She says that there were 11 months of delay before the first trial was adjourned and that anything over 11 months is necessarily unreasonable.

[61] I do not read the authorities in the manner that defence counsel does. It is clear to me that the 6-8 month guideline for the Superior Court is for institutional and Crown delay, and not for total delay. Moreover, the Court of Appeal has explained that it is an error to look at the delay in only one court, as opposed to the total delay, in assessing whether there has been a violation of s. 11(b) of the Charter. Accordingly, I am required not to look at the delay in the Superior Court of Justice alone but, instead, to look at the whole period (See: R. v. C.R.G., 2005 32192 (ON CA), [2005] O.J. No. 3764 at para. 20)

d) Prejudice

[62] The focus of an assessment of prejudice is on the prejudice that arises from the delay in commencing a trial and not on prejudice that may result from an accused having been charged with a criminal offence. The burden of proof lies on the applicant. There is no presumption of prejudice from the passage of time, though the longer the delay the more sense it may make for the court to draw an inference of prejudice.

[63] As Cromwell J. said in R. v. Godin 2009 SCC 26, 2009 S.C.J. 26 at para. 30:

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 the 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.

[64] In some cases, such as where there has been pre-trial custody, there is obvious prejudice to liberty interests. In other cases, it is less obvious that an accused is suffering prejudice as a result of a delayed trial. In these circumstances, an accused person is expected to take steps to alleviate or ameliorate his or her prejudice. See: R. v. Bennett, 1991 2701 (ON CA), [1991] O.J. 884 (C.A.) at para. 109. If an accused relies on prejudice flowing from bail conditions, the court must examine the terms of the release, whether there was an application for a variation, and the results of that application, in order to properly assess prejudice.

[65] In this case, the applicant’s liberty was obviously affected by the fact that he was charged. He was detained for almost three months and was then subject to house arrest. Once the first trial was adjourned, the Crown consented to the removal of the house arrest condition. I am not persuaded that the applicant should have done more at an earlier date to vary his bail. Given the Crown’s not unreasonable opposition to bail in the first place, it seems unlikely that the Crown would have consented to lifting the house arrest condition earlier. It is also unlikely that a court would have varied the bail and deleted the house arrest over the Crown’s opposition.

[66] It is my view that while the applicant’s liberty has certainly been curtailed by the charge, the delay has not had a significant effect on his liberty. He obtained bail and, when there was a delay of the trial, his bail was varied. The one area of liberty that has been most affected by the delay is the applicant’s inability, because of his bail, to return to the United States where his wife and sons live. This is real prejudice in that the applicant has been adversely affected by the delay.

[67] In terms of security of the person, the applicant has suggested that the delay has had a significant effect on his stress and anxiety, particularly that caused by being separated from his family and his businesses. There is no doubt that his lifestyle has changed and he has not been able to work. His businesses have deteriorated, and he likely suffers from depression. However, much of this would have happened as a result of the fact that the applicant was charged with a criminal offence in a country in which he did not reside or have family. I do not think that the delay is at the root of most of these difficulties.

[68] However, I do accept that the delay has heightened the anxiety with which the applicant lives. He and his family have been waiting for his trial and believed it would commence in April, 2015. The delay in the trial no doubt augmented what was already a stressful and difficult situation for him and his family. Being away from his teenage sons has caused stress and this has been worsened by each week that goes by without a trial.

[69] Similarly, I accept that while the applicant has partners in Jamaica who have, since before his arrest, been on site for the bar and farm businesses, his inability to travel to Jamaica has had a negative effect on these businesses. This can only have become worse as the trial was delayed.

[70] I do not understand there to be any prejudice to the applicant’s fair trial interests that is said to flow from the delay. The applicant testified that he has a very clear recollection of the events on the day of his arrest and that he will not be able to forget these events.

e) Balancing the Competing Interests

[71] All applications under s. 11(b) of the Charter require a balancing of competing considerations. The section is framed in terms of reasonableness. There is no mathematical formula to be applied in determining whether there has been a breach of s. 11(b). Rather, there is to be a balancing of the interests that the section is designed to protect with an understanding of the total length of the delay and the causes of that delay.

[72] The total delay here is just under two years. The Crown and institutional delay is 15 ½ months, less than the total delay of 16-18 months in the Morin guidelines. While the applicant has suffered some actual prejudice from the delay, I find the prejudice attributable to the delay not to be that significant. Importation of cocaine is a serious offence, motivated by financial gain. In this case, the amount of cocaine alleged to have been imported, 989.5 grams, is significant. I am satisfied that the balance in this case favours society’s interest in a trial.

CONCLUSION

[73] The application for a stay is dismissed.

Woollcombe J.

Released: September 24, 2015

COURT FILE NO.: CR-14-364-004
DATE: 2015 09 24

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
Michael Williams
Applicant

REASONS FOR JUDGMENT

Woollcombe J.

Released: September 24, 2015