COURT FILE NO.: CRIMJ(F) 575/14
DATE: 2015 10 23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
CHASE SAMUELS and SADE SMITH
Applicants
H. Akin, for the Crown
Respondent
J. Bogle, for the Applicant Samuels
C. Bilgen, for the Applicant Smith
HEARD: October 13-14, 2015
SECTIONS 11(b) CHARTER APPLICATION:
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] The applicants, Chase Samuels and Sade Smith are before the court charged on a 5 count indictment as follows:
THAT THEY, the said CHASE SAMUELS and SADE SMITH, unlawfully did, at the City of MISSISSAUGA, in the Province of Ontario, on or about the 22nd day of AUGUST in the year 2012, have in their possession a schedule I controlled substance for the purpose of trafficking, to wit: Opium Poppy (Papaver Somoniferum, its preparations, derivatives, alkaloids and salts, namely Oxycodone (dihydrohydroxycodeinone), contrary to Section 5(2) of the Controlled Drugs and Substances Act.
AND FURTHER THAT THEY, the said CHASE SAMUELS and SADE SMITH, unlawfully did, at the City of MISSISSAUGA, in the Province of Ontario, on or about the 22nd day of AUGUST in the year 2012, have in their possession a schedule I controlled substance for the purpose of trafficking, to wit: Opium Poppy (Papaver somniferum), its preparations, derivatives, alkaloids and salts, namely Diacetylmorphine (heroin) contrary to Section 5(2) of the Controlled Drugs and Substances Act.
AND FURTHER THAT THEY, the said CHASE SAMUELS and SADE SMITH unlawfully did, at the City of MISSISSAUGA, in the Province of Ontario, on or about the 22nd day of AUGUST in the year 2012, have in their possession a schedule I controlled substance for the purpose of trafficking, to wit: Coca (Erylthroxylon), its preparations, derivatives, alkaloids and salts, namely Cocaine (benzolylmethylecgonine) contrary to Section 5(2) of the Controlled Drugs and Substances Act.
AND FURTHER THAT THEY, the said CHASE SAMUELS and SADE SMITH, unlawfully did, at the City of MISSISSAUGA, in the Province of Ontario, on or about the 22nd day of AUGUST in the year 2012, have in their possession a schedule II controlled substance for the purpose of trafficking, in an amount not exceeding 3 kilograms, to wit: Cannabis, its preparations, derivatives, and similar synthetic preparations, namely Cannabis (Marihuana), contrary to Section 5(2) of the Controlled Drugs and Substances Act.
AND FURTHER THAT THEY, the said CHASE SAMUELS and SADE SMITH, unlawfully did, at the City of MISSISSAUGA, in the Province of Ontario, on or about the 22nd day of AUGUST in the year 2012, have in their possession or proceeds of property, to wit: a sum of money of a value exceeding five thousand dollars knowing that all of part of the property or proceeds was obtained or derived, directly or indirectly as a result of the commission in Canada of an offence under the Controlled Drugs and Substances Act, to wit: trafficking in a controlled substance, contrary to section 354(1)(a) of the Criminal Code, and did thereby commit an offence contrary to section 355(b) of the Criminal Code.
[2] The applicants were arrested on August 22, 2012. Their trial is scheduled to begin on November 9, 2015 for 3 weeks. By the time of their scheduled trial, they will have been before the courts for 3 years, 3 months and 1 week. Each submits that this delay constitutes a breach of his or her s. 11(b) Charter right to trial within a reasonable time and each says that the charges ought to be stayed.
[3] For the reasons that follow, the stay application is dismissed in relation to both applicants.
B. CHRONOLOGY
a) The Arrest
[4] On August 22, 2012, the Peel Regional Police executed a search warrant at 7170 Darcel Drive, unit 336. During the search of the premises, the police located 48 tablets of oxycontin, 54 grams of cocaine, 23 grams of heroin, 16.9 grams of crack cocaine, 287 grams of marihuana, various drug paraphernalia and $29,340 cash. The applicants were arrested and charged.
b) Proceedings in the Ontario Court of Justice
[5] On August 22, 2012, following a brief appearance in the bail court, Ms. Smith was released, on consent, on a recognizance of bail.
[6] The following day, on August 23, 2012, Mr. Samuels was released, on consent, on a recognizance of bail.
[7] On September 21, 2012, counsel for Ms. Smith, Mr. Bilgen, attended at court and indicated that he had a designation on file for himself and also had a designation for Mr. Bogle, counsel for Mr. Samuels. Mr. Bilgen indicated that this was the first appearance since the bail and that they were awaiting initial disclosure. The Crown said that he had just received a small amount of material, but that over a dozen police officers were involved, suggesting that the matter had “some complexity”. He suggested that the matter be adjourned four to five weeks so as to avoid unnecessary appearances. The matter was adjourned to October 26, 2012.
[8] On October 26, 2012, an agent appeared for the applicants, neither of whom was present. Crown counsel still did not have disclosure to provide to the applicants, and requested that the matter be adjourned for three to four weeks to obtain the notes of the officers. On consent, the matter was adjourned to November 16, 2012 for disclosure.
[9] On November 16, 2012, Mr. Bogle appeared for both counsel. Neither applicant was present. Mr. Bogle indicated that he understood that disclosure would be forthcoming that day, but said that he “cannot wait around for that” and asked that the matter return on December 7, 2012.
[10] On December 7, 2012, an agent appeared for both counsel and indicated, initially, that the applicants were awaiting disclosure. Crown counsel said that he was providing voluminous disclosure that day. The agent suggested that the matter return on January 11, 2013. Crown counsel indicated that a judicial pre-trial (“JPT”) would be required and suggested scheduling one that day. The agent indicated that he did not have counsel’s dates and that counsel were not available by phone. The matter was adjourned to January 11, 2013.
[11] On January 11, 2013, Mr. Bogle appeared on behalf of both counsel and asked to set a JPT, indicating he was looking at February or March. The Crown said that January 18th was available, but this date was not available for the defence. Mr. Bogle suggested February 6 or 15th or March 12th or 18th. When March 20th was suggested, the Crown asked if there was an earlier date. Mr. Bogle said that he had nothing available in January.
[12] Crown counsel then asked what the first date of counsel’s availability for a Wednesday or Friday in February. Mr. Bogle did not indicate that he was available on February 6th. His response was that the 15th had been suggested, but that he was not available. He then said that the next available date was March 20th and that that date was agreeable.
[13] On March 20th, a JPT was conducted a before Justice Blacklock. The matter does not appear to have been addressed at all on the record, although what happened that day was the subject of discussion in the proceedings that followed.
[14] The next appearance was on April 24, 2014. An agent appeared on behalf of Mr. Bogle and immediately requested an adjournment. He explained that there had been a JPT on the previous occasion, that there was disclosure outstanding, and that he had dates on which counsel was available for a further JPT. Mr. Bilgen appeared for Ms. Smith. He also said that there had been a JPT but said that there were three officers’ notes that were outstanding. There are letters from Mr. Bilgen to the Crown dated January 4, 2013 and April 2, 2013 requesting disclosure of the notes of Constable Mavity, Constable Farrow and Detective Sergeant Garcia.
[15] Justice Atwood adjourned the matter for two weeks, to May 10, peremptory on the Crown to have disclosure completed, or for the officer-in-charge to attend at court and explain why it had not been made. Justice Atwood asked the parties how much time was anticipated for the preliminary inquiry. Mr. Bilgen’s student advised that at the pre-trial, Mr. Bogle had said that he wished to conduct a Dawson application. Crown counsel advised that at the JPT before Justice Blacklock, the Crown had estimated that one day would be required. Mr. Bogle’s agent agreed with that estimate. Counsel appear to have agreed that a one day preliminary inquiry would be required, including for a Dawson application.
[16] Mr. Bilgen was willing to set a date for the preliminary inquiry that day, as long as there was a confirmation date. Justice Atwood advised that if the parties obtained a date, he would set the preliminary inquiry down. The Crown said the group of them would need to attend at the trial coordinator’s office, and could do so after she completed her pre-trials. Mr. Bogle’s agent said that he had to be somewhere, and so it appears to have been agreed that everyone would return on May 10th to set the date for the preliminary inquiry.
[17] On May 10, 2013, an agent appeared for both counsel. He indicated that the preliminary inquiry had been set for February 3, 2014. The Crown has provided a “Verification of Trial Date Provided by Trial Coordinator” form. It indicates that the parties were offered January 9, 2014 and January 14, 2014 for the preliminary inquiry, but that the defence was unavailable.
[18] Crown counsel provided some outstanding disclosure in court. The matter was adjourned to June 7, 2013 for a confirmation of the preliminary inquiry date.
[19] On June 7, 2013, both Mr. Bogle and Mr. Bilgen were before the court. Counsel confirmed the one day preliminary inquiry hearing for February 3, 2014.
[20] On February 3, 2014, the preliminary hearing did not proceed. Crown addressed the court at some point in the morning and indicated that she had spoken with counsel for the applicants and they all agreed that more than one day would be required for the preliminary inquiry.
[21] At some point later in the day the matter was before Justice McLeod, who conducted a pre-trial while the parties awaited a courtroom in which to conduct the preliminary inquiry. The notes of that JPT appear to have become lost. There is no evidence before me as to what occurred at the JPT in terms of agreements about the Dawson application.
[22] The transcript reflects that by the afternoon, counsel had been to the trial coordinator’s office and obtained new dates for the preliminary inquiry. There was agreement that the new time estimate for the preliminary inquiry was two and a half days. February 6, 2014 was offered as a date to continue, but neither the Crown nor defence were available. Everyone was available on August 5, September 2 and September 5, 2014 and the preliminary inquiry was adjourned.
[23] The preliminary inquiry began before Justice Duncan on August 5, 2014. While the defence had not brought a formal Dawson application, there were submissions made about the fact that defence counsel and Crown counsel had different understandings about the status of the Dawson application: the defence understood that the Crown was consenting to questions being asked and the Crown wished to know what questions were proposed before consenting to anything. It was agreed that the defence would bring a formal application for the return date.
[24] The applicants were then arraigned: they were jointly charged with possession for the purpose of trafficking oxycontin, possession for the purpose of trafficking heroin, possession for the purpose of trafficking cocaine (x2), possession for the purpose of trafficking marihuana and possession of property obtained by crime over $5,000.00. Mr. Samuels was also charged with assault on two police officers and breach of recognizance. The Crown called the evidence of Constable Lyndon Swing and Marc Kyle, the officers alleged to have been assaulted by Mr. Samuels.
[25] The matter continued on September 2, 2014. The Crown called evidence of Constable Michael Mavity, Constable Ryan Farrow and Constable Marc Hober.
[26] The matter continued on September 5, 2014. Counsel spent time that morning trying to work out the outstanding issues on the Dawson application. When they were unable to agree, the application was heard and a ruling was made by Justice Duncan. This was followed by the Crown calling Constable Rob Fraser, whose cross-examination was not completed that day.
[27] On September 17, 2014, Constable Fraser’s cross-examination was completed and the Crown called Officer Charles Robitaille.
[28] At the conclusion of the evidence on September 17, 2014, the Crown indicated that she was not seeking committal on the breach charge. The Crown also withdrew one of the possession for the purpose of trafficking cocaine charges. Mr. Samuels conceded committal on all charges except the two assault police. Ms. Smith contested committal on some counts. In a very brief oral judgment, Justice Duncan discharged Ms. Samuels on the assault counts and committed both applicants on the rest of the counts.
[29] The matter was adjourned to the Superior Court assignment court on October 17, 2014.
c) Proceedings in the Superior Court of Justice
[30] On September 17, 2014, the matter was spoken to in the Superior Court assignment court and was adjourned for a JPT on November 17, 2014.
[31] A JPT was held on November 17, 2014. When the matter was then in court to set a date, Justice Durno asked counsel when they were first available for three weeks, which was the time estimate for the trial. Defence counsel requested that the matter be adjourned for two weeks before a date was set. The matter was adjourned to the November 28, 2014 assignment court.
[32] On November 28, 2014, Mr. Bilgen indicated that the matter had been put over so that he and Mr. Bogle could seek instructions. In the interim, Ms. Samuels had been arrested. Counsel asked that the matter be adjourned a further two weeks. It was adjourned to December 12, 2014 assignment court.
[33] On December 12, 2014, Mr. Bogle explained that Mr. Samuels had been sent out of Toronto and so was difficult to reach. He asked that the matter be adjourned to January 9, 2015 at which point he expected to be able to set a trial date. The matter was adjourned to the January 9, 2015 assignment court.
[34] On January 9, 2015, Mr. Bogle again asked for an adjournment explaining that he had not been able to obtain instructions. The matter was adjourned to the February 20, 2015 assignment court.
[35] On February 20, 2015, Justice Durno asked defence counsel when they were first available for three weeks. Mr. Bogle said he was available in June. Mr. Bilgen said he was also available in June, except for the first week of June. Justice Durno offered counsel a trial date of October 5, 2015, a date on which the Crown was available. Mr. Bogle was not available on October 5. Counsel were offered October 12, 2015 but Mr. Bogle was not available. The first available date for counsel was November 9, 2015 for three weeks.
d) Prejudice
[36] The applicants filed affidavits and were cross-examined. Each claims prejudice in a number of respects.
[37] Mr Samuels testified that:
The delay has had an effect on his personal relationship with Ms. Smith and his two boys as he had bail conditions not to communicate with Ms. Smith and was unable to see his sons consistently. He missed many events in their lives.
The delay has been expensive for him as he has been unable to work and needed to borrow money from family and Ms. Smith.
He was charged with other offences in Toronto on two occasions after the Brampton charges. His releases on these charges have meant that he was under conditions that he reside first in London, and subsequently in North Bay, that he was under house arrest, and that he was unable to attend school or seek employment. He agreed under cross-examination that the bail conditions on the Brampton charges did not impose these conditions and that the most significant terms from this recognizance were that he reside with his surety or an address approved by his surety, that he not communicate with Ms. Smith except in the presence of counsel or his surety, and that he not attend at the Darcel Apartment except with his surety. There were no restrictions on the location of his residence, attendance at school or employment.
His Brampton bail was varied, on consent, on January 14, 2014, to delete the term that he abstain from communicating with Ms. Smith except in the presence of counsel or his surety.
That he had concerns from the preliminary inquiry that many of the police officers involved in his arrest made observations at the time that were not reduced to writing and that could lead to his acquittal. Asked about what specific observations he was referring to, he said that the officers were inconsistent in their evidence, that they had not written everything down, and that they were unable to recall details.
He wished the pace of litigation to be faster and repeatedly asked his lawyer to speed things up. But Mr. Samuels deferred to Mr. Bogle’s advice with respect to whether to have a preliminary inquiry and felt that the pace of litigation was out of his control.
[38] Ms. Smith testified that:
The delay in these proceedings caused her a great deal of financial stress in that she felt unable to advance her career. She testified that she worked at the Bank of Montreal and has been fearful about losing her employment because of the charges. She has also been unable to take any courses to advance her career for fear of being unable to complete them. She was unable to move banks as she knew that background checks would be done.
Under cross-examination, Ms. Smith reluctantly agreed that she was now in a more senior role, with more responsibility at the bank than she had been when arrested, and that her salary had increased.
The delay caused stress in her home and with her sons, who were unable to see their father. They were 2 ½ years old and 9 months in August, 2012 at the time of the arrest. She worries about the potential impact on them if she is convicted.
Her impression from the officers who testified at the preliminary inquiry was that they did not recall a lot of things from the arrest.
C. THE APPLICABLE LEGAL PRINCIPLES
[39] The legal analysis that is required on a s. 11(b) Charter application 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 CanLII 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.
[40] 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
[41] The total delay in this case from the date of the charge until the anticipated completion of the trial is 1192 days, or 3 years, 4 months and 1 week. This length of time warrants scrutiny.
b) Any waiver of time periods
[42] There has been no waiver of any time periods.
c) The Reasons for the Delay
i) Delay in the Ontario Court of Justice
[43] I turn first to the time spent in the Ontario Court of Justice.
August 22-November 16, 2012– Intake and disclosure
[44] The applicants were charged on August 22, 2012. Ms. Smith was released, on consent, that day. Mr. Samuels was released, on consent, the next day.
[45] There were appearances over the next couple of months as the disclosure was prepared. The parties agree that it is reasonable to find that the period up until November 16 was required to prepare disclosure. I agree and find that this period is inherent to the case and so neutral. This amounts to 86 days.
November 16-December 7, 2012 – Delay in defence obtaining disclosure
[46] The parties take different positions as to the cause of this delay. The applicants say that disclosure should have been made on November 16 and that the delay that resulted from it not being ready is Crown delay. The Crown says that the record suggests that the disclosure was going to be ready later in the day and that counsel chose not to wait for it. She says that the delay is attributable to the defence or is inherent time.
[47] My review of the transcript reveals that the defence asked for the matter to go over so that he could re-attend at court the next time and receive the disclosure. Mr. Bogle understood that there would be disclosure available that day but said that he could not wait for it.
[48] It was reasonable for the police and Crown to take three months from the arrest date to provide disclosure in this case. Disclosure was to be made available on November 16, which is the three month mark. As I read the transcript, it was the defence who wanted to adjourn the matter, rather than obtain the disclosure as soon as possible. In the circumstances, I attribute the delay of 21 days to the defence as if counsel had wished, he could have waited for the disclosure, and begun his review of the case earlier.
December 7, 2012-January 11, 2013 – Delay for disclosure review
[49] On December 7, 2012, an agent appeared for both counsel. He accepted from the Crown what was described as voluminous disclosure for one counsel and declined to take the disclosure for the other counsel. The agent asked that the matter be adjourned to January 11, 2013. The Crown suggested scheduling a JPT, but the agent did not have counsel’s schedules.
[50] The applicants say that this disclosure was deficient and that the delay until January should be attributable to the Crown for failing to make timely disclosure. The Crown says that the delay in setting a JPT should be viewed as defence delay or as inherent time.
[51] The law is clear that after receiving disclosure, counsel need some time to be ready to have a JPT. In this case, I find that the delay from the receipt of the disclosure until the next appearance on January 11, 2013 was inherent time needed for the defence to review the disclosure. It seems to me that defence counsel was not yet prepared to set a JPT. This 31 days is neutral.
January 11-March 20, 2013 – Scheduling JPT
[52] On January 11, 2013, the JPT was set for March 20, 2013. The transcript is not very clear in terms of when defence counsel were available. Certainly, they were not available on January 18, 2013, the first date offered. It appears that when counsel was asked for their first available Wednesday or Friday for a JPT, they were not available February 15. March 20 seems to have been the first available date. I conclude that the delay of 68 days to schedule the JPT is part of the inherent time for the case and is neutral time.
March 20-May 10, 2013 – Setting date for preliminary inquiry after JPT
[53] While there was a JPT before Justice Blacklock on March 20, 2013, there is no record of what was said or why the matter was put over to April 24, 2013.
[54] The appearance before Atwood J. on April 24, 2013 reflects that the defence were still frustrated about the outstanding disclosure of some of the officers’ notes. Justice Atwood was concerned enough about the missing notes that he asked counsel to return in two weeks, peremptory on the Crown. However, it appears that counsel were prepared to set the matter down for a one day preliminary inquiry without the outstanding disclosure, as long as there was a confirmation date set.
[55] While the defence were frustrated with the lack of timely disclosure, they were ready to set the preliminary inquiry. A date was not set, however, because counsel declined to attend at the trial coordinator’s office, and preferred that the matter be adjourned for two weeks to set the date.
[56] The applicants argue that the delay in setting the preliminary inquiry was because of the outstanding disclosure. The Crown says that the defence indicated readiness to set the preliminary inquiry but then chose not to wait and to do so, and that the delay is thus attributable to the defence. It is my view that the Crown provided no reasonable explanation for its failure to respond to the defence disclosure requests. I infer that the preliminary inquiry was not set on March 20, after the JPT with Justice Blacklock, because of the outstanding disclosure. The Crown agrees that this was relevant and important disclosure. The period from March 20 to April 24, a total of 35 days, is Crown delay.
[57] However, by April 24, 2013, the defence were clearly prepared to set a preliminary inquiry despite the outstanding disclosure, and then chose not to do so. The delay until May 10, 2013 when the preliminary inquiry was set is attributable to the defence. This is 16 days.
May 10, 2013-February 3, 2014 – Delay for the preliminary inquiry to start
[58] On May 10, 2013, the preliminary inquiry was set for February 3, 2014. This is 270 days or 8 months and 3 weeks later.
[59] The case law makes clear that the institutional delay clock does not run for this entire period from the date the preliminary is set until it begins. There needs to be a period of time for counsel to prepare and be ready for the preliminary inquiry. (See: R. v. Lahiry, 2011 ONSC 6780 at paras. 26-33). Counsel all accept that some period of time to prepare for the preliminary inquiry should be viewed as inherent time. They differ as to how much, with Mr. Bogle initially agreeing that 30-60 days were appropriate, and later saying that the correct period was 30 days. The Crown suggests that 2 months of delay to prepare are more reasonable.
[60] There is no indication in the transcript as to when defence counsel would have been available to begin the preliminary inquiry. It was expected that there would be a number of officers to testify and a Dawson application. In my view, it is reasonable to conclude that defence counsel needed 6 weeks after the JPT to be ready for the preliminary inquiry to proceed, including preparing whatever material was needed for the Dawson application. This means that 42 days (from May 10-June 21, 2013) should be viewed as inherent time.
[61] The rest of the time from June 21, 2013 to January 9, 2014 is institutional delay. This is 202 days or 6 ½ months.
[62] The parties were offered dates of January 9, 2014, but the defence were unavailable. Accordingly, the parties agree that the period of delay from January 9 to February 3 is defence delay of 25 days.
February 3-August 5, 2014 - Delay starting the preliminary inquiry
[63] The preliminary inquiry did not start on February 3, 2014. The defence says that this was because of an institutional failure in the allocation of appropriate resources, and that all of the time needed to schedule dates for the preliminary inquiry to proceed is institutional delay. The Crown points out that there was time at the end of the day when it could have started, but that by then everyone had agreed that it should go over.
[64] At the JPT with Justice McLeod that afternoon, counsel agreed that 2 ½ days would be required for the preliminary inquiry. As a result, it would not have mattered whether any evidence was commenced that day or not – the preliminary inquiry could never have finished.
[65] For me, the critical question is how it could be that both sides were so wrong in their time estimate. The defence says that the estimate changed with the disclosure of the officers’ notes. I find this difficult to accept because by the June 7, 2013 confirmation hearing, no issue was raised on the record as to outstanding disclosure, and everyone expected the preliminary inquiry to take one day.
[66] I conclude that there was an unfortunate under-estimation of time by both the Crown and the defence. In R. v. Tran 2012 ONCA 18 at paras. 54-61, the Court of Appeal discussed how to allocate delay that occurs when counsel’s time estimate proves inaccurate. The Court adopted Justice Code’s analysis in R. v. Lahiry at para 67 that:
…the case must be given priority in the system and that these delays resulting from re-scheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or can be a combination of both, depending on the circumstances.
[67] While counsel were offered February 6, 2014, to continue, neither the Crown nor the defence were available. As a result, there was a further 6 month delay.
[68] I find that this case was given the priority that it ought to have been given, in accordance with R. v. Tran. It is my view that it would have been reasonable for the parties to be provided with 3 additional days within 3 months, rather than going over into August and September. Accordingly, I find that the 90 day period from February 3 until May 3, 2014 is the time in which the preliminary inquiry should reasonably have been re-scheduled. This is inherent time that flowed from counsel’s mis-calculation. The 124 day period from May 3 until September 5, 2013 (the last day scheduled for the 3 day preliminary inquiry) is institutional delay that reflects an absence of appropriate resources allocated to the case.
September 5-17, 2014 – Delay to complete preliminary inquiry
[69] The defence say that the preliminary inquiry took longer than it ought to have because the Crown resiled from the position it had taken at the JPT in relation to the Dawson application. It is clear to me from the transcript that the parties had different perspectives as to what, if any, agreement was reached before Justice McLeod in relation to the Dawson application. Ultimately, this issue was litigated. From the record, I am unable to conclude that the Crown resiled from any agreement. I observe that each party seems to have misunderstood the position of the other, and that the result was further unanticipated delay, which is properly characterized as inherent time.
[70] It was obvious by the end of September 5 that the preliminary inquiry was not going to be completed that day. Counsel attended at the trial coordinator’s office and were able to obtain a further date of September 17, 2014, just 12 day later. This was a reasonable date for the continuation that had been unanticipated by both counsel. I conclude that this 12 day delay is inherent and neutral.
September 17-October 17, 2014 – Committal to SCJ Assignment Court
[71] On September 17, 2014, Justice Duncan gave his ruling on the issue of committal. Counsel were offered the dates of September 26 and October 17 for the first appearance in Superior Court and asked that the case go over to October 17. It is agreed that this 30 day delay is inherent time and is neutral.
Conclusion on the delay in the Ontario Court of Justice
[72] My conclusions as to the time spent in the Ontario Court of Justice are as follows:
Inherent time / 86 days (Aug. 22-Nov. 16, 2012- Intake and disclosure)
Neutral: disclosure preparation)
31 days (Dec. 7, 2012-Jan. 11, 2013 - Review disclosure)
68 days (Jan 11-March 20, 2013 – Scheduling a JPT)
42 days (May 10-June 21, 2013 - Preparation for preliminary inquiry)
90 days (Feb. 3-May 3, 2013 - Scheduling further preliminary inquiry)
12 days (Sept. 5-17, 2014 – Completion of preliminary inquiry)
30 days (Sept. 17-Oct. 17, 2014 - Committal to SCJ assignment court)
359 days total
Institutional / 35 days (March 20-April 24, 2013 – Crown failure to make
Crown timely disclosure)
202 days (June 21, 2013-Jan. 9, 2014 Awaiting preliminary inquiry)
124 days (May 3-Sept. 5, 2014 - Re-scheduling preliminary inquiry)
361 days total
Defence: 21 days (Nov. 16-Dec. 7, 2012 – Requested adjournment rather than obtaining available disclosure)
16 days (April 24-May 10, 2013 – Defence declined to set preliminary inquiry when could have)
25 days (Jan. 9-Feb. 3, 2014 - Defence not available for preliminary inquiry)
62 days total
ii) Delay in the Superior Court of Justice
October 17-November 28, 2014 – Assignment Court to JPT
[73] At the Superior Court Assignment Court on October 17, 2014, a JPT was set for November 17. Counsel were offered earlier dates of November 12 and 14. The JPT was then held on November 28, 2014. The 31 day delay from October 17 to November 28 to complete the mandatory pre-trial is inherent time.
November 28, 2014-February 20, 2015 Delay setting trial date
[74] While it was agreed that the trial would be set for three weeks, the defence were not ready, for a variety of reasons, to set a trial during this period. This delay of 84 days is agreed by the parties to be defence delay.
February 20, 2015-November 9, 2015 – Delay to trial date
[75] At the appearance of February 20, 2015, Justice Durno asked counsel when they were first available for trial. Mr. Bogle was available in June and Mr Bilen was not available the first week of June. Counsel were not, therefore able to have a trial before June 8, 2015. The 108 day delay from February 20 until June 8, 2015 must be viewed as inherent time. Counsel needed time to prepare materials for the various applications that are to be brought at trial. The defence say that only 35 days of this time should be inherent, and the rest is institutional delay. I read the cases before me as making clear that the institutional delay does not begin until the parties are ready for trial. In this case, the parties were not ready to begin until June 8, 2015. Institutional delay begins then.
[76] The time from June 8, 2015, when counsel were available for trial, and the system could not accommodate the trial, until October 5, 2015, the first day on which the system could accommodate a trial, is 120 days of institutional delay.
[77] The delay from October 5, 2015 when the trial could have begun until November 9, when it is scheduled to begin, is 36 days of defence delay.
[78] The anticipated time for the completion of the trial is 18 days and is considered inherent time.
[79] As a result, the total periods of delay in the Superior Court are:
Inherent time : 31 days (Oct 17-Nov 28 – Intake in SCJ)
108 days (Feb 20-June 8, 2015 – Time for defence to be ready for trial)
18 days (Nov. 9-27 – Time for the trial)
157 days
Institutional delay: 129 days (June 8-Oct. 5, 2015 – Delay obtaining trial date)
Crown delay: 0 days
Defence delay: 84 days (Nov. 28, 2014-Feb. 20, 2015 – Defence delay in setting trial date
36 days (Oct. 5-Nov. 9, 2015 – Defence availability delay)
120 days
iii) Total Delay
[80] The total period of institutional delay in this case is 490 days. This amounts to one year and 125 days or just over 16 months. This falls within the guideline of 16-18 months for cases that proceed through two levels of court.
d) Prejudice
[81] 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 applicants. 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.
[82] 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.
[83] I will deal first with the prejudice claimed by Mr. Samuels. Much of his evidence focused on the effects of what he understood to be restrictive bail conditions. The difficulty with this position is that the terms upon which he was released for these charges were not at all onerous. While he was precluded from communicating with Ms. Smith, other than with a surety or counsel present, this term was deleted in January, 2014.
[84] I understand from the evidence that on two occasions after these charges, Mr. Samuels was charged with further offences in Toronto. There is a recognizance of bail before me indicating that he was charged with possession for the purpose of trafficking (x2), fail to comply and possession of proceeds on February 6, 2013, and was released on bail on March 28, 2013. The terms of this recognizance include house arrest and that he live in London. He testified that these charges were withdrawn 6-8 months later.
[85] Mr. Samuels testified that he was arrested again in the fall of 2014. There is no evidence before me about the terms of any release on these charges. Mr. Samuels testified that they have been withdrawn.
[86] Mr. Samuels position is that the stigma from the Brampton charges affected his bail conditions imposed following the subsequent arrests.
[87] I am unable to conclude that Ms. Samuels suffered prejudice from onerous of difficult bail conditions in relation to these charges. He remained out of custody on these charges and the terms did not have the effect of depriving him of employment, education, or continuing a relationship with his sons or Ms. Smith. While I accept that he feels prejudiced by the conditions imposed following the Toronto charges, these are not, in my view, relevant to the issue of prejudice from delay in this case.
[88] In relation to Ms. Samuels, I accept that the outstanding charges have been stressful for her and that they have created uncertainty about what will happen to her children in the event that she is convicted. There is some prejudice that may be inferred from the length of time that the case has taken.
[89] I do not find prejudice to Ms. Smith’s liberty interests, given that she was released from custody the day she was arrested, and remained under bail conditions that were not particularly onerous.
[90] I am also not satisfied that the delay has inhibited Ms. Smith’s career as she suggested in her evidence. While her choices may have been somewhat limited by the fact of the charges, she has maintained her employment at the bank and has been able to progress to a position of greater responsibility and increased salary.
[91] Both applicants argue that their fair trial rights are prejudiced by the fact that the delay has led to a loss of the officers’ abilities to testify as to what happened when they executed the search warrant. I have been pointed to numerous references in the transcript of the preliminary inquiry where officers did not recall certain things about which they were asked. It is argued that neither applicant will be able to have a fair trial because of the gaps in memory and notes of the officers.
[92] I have carefully reviewed the transcripts of the officers at the preliminary inquiry. I have looked, in particular, at the various areas in which the officers are said to have been unable to recall details. There are, I accept, questions that they were unable to answer and things about which they made no notes.
[93] The officers’ failure to make notes, while it may be relevant to trial issues, is not a consequence of delay. The officers’ inability to recall details may or may not be related to the delay. Many of the questions that they were asked were as to details that they appear to have viewed as unimportant. From what I have read, and after reviewing the examples relied upon by the defence in context, I am unpersuaded that the delay has caused the officers’ memories to fade in a manner that will deprive the applicants of a fair trial. There is no evidence that suggests to me that their memories would have been better about these issues had it not been for the delay in the trial. Indeed, they were unable to recall the details that have been noted by the preliminary inquiry, two years after the arrest.
[94] I am not persuaded, therefore, that the applicants have established any significant prejudice to their fair trial rights from the delay.
e) Balancing the Competing Interests
[95] 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). The determination of what constitutes reasonable time for a trial under s. 11(b) is fact driven and case specific (See: R v. Seegmiller (2004) 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 (Ont.C.A.) at para. 26). There must 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.
[96] The total delay here is over three years and three months. The Crown and institutional delay is just over 16 months, and so within the Morin guidelines.
[97] The applicants face serious charges of possession for the purpose of trafficking in oxycodone, heroin, cocaine and marihuana, as well as having in their possession proceeds of crime. These are very serious offences in which society has an interest in seeing that these charges are tried on their merits.
[98] There is very little prejudice to either applicant’s liberty interests or right to make full answer and defence. While I accept that there is some inferred prejudice from the length of time taken to bring this matter to trial, I do not find it particularly significant in the circumstances before me.
[99] I am satisfied that the balance in this case favours society’s interest in a trial.
E. Disposition
[100] The applications are dismissed.
WOOLLCOMBE J
Released: October 23, 2015
COURT FILE NO.: CRIMJ(F) 575/14
DATE: 2015 10 23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
CHASE SAMUELS
and SADE SMITH
Applicants
REASONS FOR JUDGMENT
WOOLLCOMBE J
Released: October 23, 2015