ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CRIMJ(F) 709/14
Date: 2015-10-01
B E T W E E N:
HER MAJESTY THE QUEEN
H. Akin, for the Respondent
Respondent
- and -
DAVID WINN
V. Cojocaru, for the Applicant
Applicant
Heard: September 25, 2015
Decided: October 1, 2015
RULING ON s. 11(b) CHARTER APPLICATION
André J.
[1] Mr. Winn brings an application for an order to stay a number of drug charges, pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms (“the Charter”). Specifically, he contends that of the overall delay period of 27.25 months in this case, 18.5 months constitute Crown or institutional delay. He submits that this period of Crown/institutional delay, in combination with the enhanced prejudice he suffered, makes the delay constitutionally intolerable.
[2] The Crown, however, submits that the amount of Crown/institutional delay is no longer than 13 months which is well within the administrative guidelines for delay in such cases.
CHRONOLOGY OF EVENTS
[3] The Peel Regional Police charged Mr. Winn on July 26, 2013, with a number of drug charges involving the possession for the purpose of trafficking cocaine and oxycontin.
[4] Mr. Winn was released on a recognizance on July 26, 2013, in the amount of $5,000 without deposit and with a surety.
[5] Thereafter, Mr. Winn made a number of court appearances on the following dates:
- August 16, 2013
- September 6, 2013
- September 20, 2013
- October 4, 2013
- October 25, 2013
- November 15, 2013
- January 17, 2014
- January 24, 2014
[6] With the exception of a one week period between November 15, 2013, and November 22, 2013, the Crown and Mr. Winn agree that the delay period between August 16, 2013, and January 24, 2014, is attributable either to Mr. Winn or should be regarded as neutral; attributable neither to Mr. Winn, the Crown or institution.
[7] On January 24, 2014, the parties remanded the matter to September 10, 2014, for a preliminary hearing.
[8] On September 10, 2014, the preliminary hearing commenced late in the day and ended, at the Crown’s request, at approximately 4:00 p.m. The hearing had to be ended prematurely, given that the Crown lacked an important piece of evidence which had not been served on Mr. Winn. The preliminary hearing was adjourned to December 10, 2014, for continuation.
[9] Mr. Winn was committed to stand trial on December 10, 2014. The matter was then adjourned to January 9, 2015, to set a date for a judicial pretrial (“JPT”). On January 9, 2015, the matter was further adjourned to February 17, 2015 for a JPT.
[10] On the latter date, the parties attended a JPT following which they set a trial for the week of October 26, 2015. Mr. Winn’s counsel advised the court that he was available for trial during the week of May 11, 2015. The trial coordinator offered trial dates of June 15, August 4 and August 17, 2015. Mr. Winn was unavailable for trial during the weeks of June 15 and August 4, 2015, but was available for trial during the week of August 17, 2015. The Crown was available on the first two dates, but unavailable on August 17, 2015.
PREJUDICE SUFFERED BY THE APPLICANT
[11] Mr. Winn filed an affidavit and testified during this hearing that he has suffered significant prejudice on account of the delay in the trial. Specifically, he asserts that he suffered depression, anxiety and problems in his relationship on account of the delay. He admitted however, in cross-examination, that he started to experience stress almost immediately after he was charged. He also indicated that he was unaware that his lawyer had adjourned his case six times following his arrest or that he could have elected to have a trial in the Ontario Court of Justice. He also conceded that although he has not been able to travel abroad on a vacation, his recognizance did not have a condition prohibiting him from travelling abroad.
Analysis
[12] Both parties agree that the delay in this case is sufficiently long that an inquiry is necessary to determine whether or not s. 11(b) has been violated and a stay of the charges is warranted.
[13] They also agree that the tolerable period of institutional or Crown delay in the Ontario Court of Justice is 8 to 10 months while that in the Superior Court is 6 to 8 months: see R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771.
[14] There is no dispute that this tolerable delay period is merely an administrative guideline, to be extended upwards or downwards given the presence or absence of prejudice.
[15] It is also acknowledged that the institutional delay clock commences to run from the date both parties were available for a trial or a preliminary hearing: see R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187 at paras. 29-34; R. v. Tran, 2012 ONCA 18, at para. 32.
[16] Additionally, it is conceded that determining whether Mr. Winn’s s. 11(b) Charter rights have been infringed involves a balancing of the following factors enumerated in Morin, at 787-8:
- The length of the delay.
- The reasons for the delay.
- Waiver of time periods.
- Prejudice to the accused.
[17] Finally, it is acknowledged that there is a societal interest in ensuring that matters should best be adjudicated on their merits and that in the appropriate case, this consideration may trump the other factors that must be balanced, in deciding whether or not Mr. Winn’s s. 11(b) rights have been infringed.
DELAY PERIODS
[18] For analytical purposes, each of the contentious delay periods will be analysed to determine what proportion of the delay period, if any, can be categorized as Crown or institutional delay.
1. January 24, 2014 to September 10, 2014
[19] The applicant maintains that this delay period must be categorized as institutional delay.
[20] To do so however, would be to ignore the Tran and Lahiry decisions. In my view, the parties would not have been available for a preliminary hearing for at least two months after January 24, 2014. During this period, the Crown would have had to subpoena its witnesses, interview them and prepare for the hearing. Accordingly, the institutional delay within this period would be 7.5 months less 2 months delay which is part of the inherent time requirements of the case. Therefore, the institutional delay within this period is 5.5 months.
2. September 10, 2014 to December 10, 2014
[21] Undoubtedly, this delay period is attributable to both the Crown and to the institution. The matter had to be adjourned because of disclosure problems and the fact that there were other matters to be dealt with before the Crown commenced the preliminary hearing.
[22] Accordingly, the 3 months delay within this period amounts to Crown and institutional delay.
3. December 10, 2014 to February 17, 2015
[23] Following his committal to stand trial, the court remanded Mr. Winn to January 9, 2015, to set a date for trial in the Superior Court of Justice.
[24] In my view, this delay period is either neutral delay or part of the inherent time requirements of the case.
[25] Similarly, the delay between January 9, 2015, to February 17, 2015 must be categorized as part of the inherent time requirements of the case in that it is necessary to have a judicial pretrial before the setting of a trial date. Contrary to the position taken by the applicant, this delay period cannot be construed as institutional or Crown delay.
4. February 17, 2015 to October 26, 2015
[26] On the former date, counsel for Mr. Winn advised the court that he was available for trial during the week of May 11, 2015.
[27] The court advised counsel that it could provide June 15, August 4 and August 17, 2015 for trial. The first two dates were unavailable to Mr. Winn.
[28] Contrary to what Mr. Winn asserts, this entire delay period cannot, on these facts, be attributed to institutional delay. Mr. Winn’s counsel was not available for the trial before May 11, 2015. Assuming that the Crown was available on that date, then the institutional delay would run from May 11, 2015, to June 15, 2015, which was the first available date for the trial.
[29] Second, Mr. Winn was not available for his trial between June 15, 2015, and August 17, 2015. To that extent, this delay period cannot be attributed to the Crown or to the institution.
[30] Third, Mr. Winn was available for trial on August 17, 2015, unlike the Crown. The next available date offered by the trial coordinator was October 26, 2015. To that extent, a period of 2.25 months approximately, must be categorized as institutional delay.
[31] Based on the above analysis, institutional delay within this period is the aggregate of the delay periods between May 11, 2015, to June 15, 2015, and from August 17, 2015, to October 26, 2015, a period of approximately 3.5 months.
TOTAL CROWN/INSTITUTIONAL DELAY
[32] The total amount of Crown and institutional delay in this case is the aggregate of the following delay periods:
- January 24, 2014 to September 10, 2014 5.5 months
- September 10, 2014 to December 10, 2014 3 months
- February 17, 2015 to October 26, 2015 3.5 months
TOTAL AMOUNT OF INSTITUTIONAL DELAY 12 months
DISPOSITION
[33] Clearly, this period of institutional delay falls squarely within the institutional delay guidelines set out in the appellate jurisprudence. The prejudice suffered by Mr. Winn does not justify a downward deviation from the guidelines as would warrant a stay of the charges. Much of the prejudice which Mr. Winn claimed to have suffered stems from the fact that he was charged, rather than from any delay in his trial. He was released on a recognizance days after he was charged, with no restrictions on his ability to travel abroad. While he claimed to have experienced anxiety and stress on account of the delay, his stress was not such that he sought any medical attention for it.
CONCLUSION
[34] For the above reasons, the delay in bringing Mr. Winn to trial did not violate his s. 11(b) Charter rights.
[35] Accordingly, his application is dismissed.
André J.
Released: October 1, 2015
COURT FILE NO.: CRIMJ(F) 709/14
DATE: 20151001
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
DAVID WINN
Applicant
RULING ON s. 11(b) CHARTER APPLICATION
André J.
Released: October 1, 2015