COURT FILE NO.: CR-14-0534-00
DATE: 2015 Nov 13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Michael John EYRE,
Andy Stephen AMEY and
Tammy Hilda AMEY
Accused
J. Dart, for the Crown
K. Dunbar, for the Applicant/Moving Party, Tammy Hilda Amey
HEARD: November 9, 2015
Tranmer, J.
DECISION ON s. 11(b) APPLICATION
[1] Tammy Hilda Amey brings this application for a stay pursuant to s. 11(b) of the Charter of Rights and Freedoms.
BACKGROUND
[2] Based on surveillance information, police executed a warrant at a residence in Kingston and determined that it was being used by the accused Eyre as a stash house because of the presence of cocaine traces, drug packaging, digital scales, residue laced cups and instruments, Canadian currency and a large hydraulic press used in the compact pressing of cocaine. Similar confirming observations were made in the course of a second entry to the residence four days later.
[3] On June 14, 2013, Mr. Eyre was arrested after exiting the premises. He told the police that there was $45,900 inside the residence, but no cocaine. Police observed the Canadian currency in elastic wrapped bundles on the counter.
[4] After the arrest of Mr. Eyre, a police officer was positioned outside of the residence for security purposes. Mr. Amey and another person showed up at the residence separately. The second person was found to be carrying a package weighed at 498 g suspected to be cocaine with a street value of $49,800. Mr. Amey and this person were both arrested.
[5] Tammy Amey was located sitting in a vehicle near the residence. Police searched her and found 52 Percocet pills and a large sum of Canadian currency, $10,000. They also located 238 g of marijuana behind the driver’s seat in that vehicle. Tammy Amey has since provided a medical prescription for the Percocets and provided a document to police that shows that in September of 2012, she received a lump sum payment of $12,812 from the Canada Child Tax Benefit in relation to a payout to benefit her son. She too was arrested.
THE INDICTMENT
[6] Mr. Eyre and Mr. and Mrs. Amey are charged on the same indictment as follows.
[7] Mr. Eyre is charged with possession of cocaine for the purpose of trafficking (Count 1).
[8] Mr. Amey is charged with attempting to possess cocaine for the purpose of trafficking (Count 2).
[9] Mr. Amey and Mr. Eyre are charged that they did conspire together to traffic in cocaine by exchanging Canadian currency for cocaine with the intent of further selling cocaine (Count 3).
[10] Mr. Eyre is charged with possessing Canadian currency knowing it to have been obtained by an indictable offense (Count 4).
[11] Mr. Amey and Mrs. Amey are charged together that they did possess marijuana for the purpose of trafficking (Count 5). They are also charged that they possessed the Percocets for the purpose of trafficking (Count 6).
CHRONOLOGY OF COURT APPEARANCES
[12] On June 17, 2013, Ms. Amy was released on bail, $2000 no deposit, on condition that she live at the stated address with her son. She was not required to reside with her surety. An initial curfew was vacated. There was no restriction on her liberty such as house arrest or restricted travel.
[13] The first court appearance in the Ontario Court of Justice for the three accused was July 18, 2013.
[14] A transcript for each of the appearances in the Ontario Court of Justice and the Superior Court of Justice was filed on this application before me.
[15] Exhibit 1 (which is attached hereto as Schedule “A”) is accurate in so far as the appearance dates are concerned, except that the date of August 15, 2015 has been left out. On July 18, 2013, on behalf of all three accused, duty counsel requested that the matter be adjourned to August 15, 2015 for a counsel resolution meeting. On that date, counsel for Mr. and Mrs. Amey and as agent for counsel for Mr. Eyre requested that the matter go to August 29, 2013 to permit Crown resolution discussions to occur.
[16] Exhibit 1 reflects the Crown’s attribution for delay. I will discuss his attributions below.
[17] As a result of an ongoing jury trial, counsel for Mr. Eyre was unable to attend at the initial preliminary inquiry scheduled for July 3 and 16, 2014. This required an adjournment to November 3 and 5, 2014 to conduct the preliminary inquiry. It was also as a result of the unavailability of counsel for Mr. Eyre that the trial date that was set on February 13, 2015 was set for the weeks of January 4 and January 11, 2016. While the court, counsel for Mr. Amey and Ms. Amey, who will proceed to the trial with or without counsel, were available for trial in August of 2015 and also October of 2015, counsel for Mr. Eyre advised that he would not be available until December of 2015.
[18] It is also a fact that Mr. Amey and Ms. Amey have stated that it is their wish to proceed to trial before a judge sitting without a jury. It is Mr. Eyre’s stated intention to proceed to trial before a judge sitting with a jury.
[19] At a trial management conference which I scheduled for Tuesday, November 3, 2015, Mr. Eyre informed the court that on the preceding Thursday, October 29, 2015, he was first informed by his lawyer's office that his lawyer would not be representing him either at the prior to trial applications scheduled for November 9 and 10, 2015, or at the trial.
[20] Crown counsel advised that he was informed by Mr. Eyre’s lawyer in early October 2015 that he would not be representing this accused and that materials should be served personally on Mr. Eyre.
[21] At the attendance on November 9, 2015 for the prior to trial applications including this 11(b) application, Mr. Eyre advised that he had spoken to a new lawyer the prior Friday, but that lawyer required the disclosure and a retainer commitment from Mr. Eyre. Mr. Eyre was requesting an adjournment of the prior to trial applications pending retaining a lawyer. Any new lawyer representing Mr. Eyre will have to consider the disclosure, the proper election for Mr. Eyre to make concerning mode of trial and whether any prior to trial applications should be brought on his behalf. This situation now jeopardizes the current trial dates at least insofar as Mr. Eyre is concerned.
[22] On November 9, 2015, Mr. Amey through his counsel Mr. Burr, confirmed that he wishes to be tried by a judge alone and to proceed with the January 4 and January 11, 2016 trial dates and have his evidentiary applications heard in the course of a blended voir dire within the trial. Ms. Amey, who has agreed to a trial on those dates, with or without counsel, agrees with this manner of proceeding in regard to the charges against her. Both Mr. and Mrs. Amey wish to proceed with their trial at that time, in that fashion, whether or not the trial against Mr. Eyre proceeds against him as currently scheduled at the same time.
[23] In these circumstances, the Crown advised that if Mr. Eyre requires an adjournment of the presently fixed trial dates, then the Crown will sever the counts concerning Andy Amey and Tammy Amey and proceed against them without Mr. Eyre. Counsel for Mr. Amey and Tammy Amey personally have indicated that they are both agreeable to proceeding in that fashion during the January dates.
GENERAL PRINCIPLES
[24] In R. v. Williamson 2011 ONSC 5930, I described the analytical framework as follows,
[22] The test for consideration of delay is set out by the Supreme Court of Canada in R v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. The four factors which are to be considered on an application for a stay of proceedings based on unreasonable delay are as follows:
a. The length of delay: an inquiry into the unreasonable delay is triggered only where the gross delay is sufficiently long to raise an issue as to its reasonableness. The guidelines set out in Morin are 8 to 10 months in the Ontario Court of Justice and 6 to 8 months in the Superior Court of Justice.
b. Waiver by the accused: if the accused waived in whole or in part, his or her right to complain of the delay, then the waived time must be deducted from the total.
c. The reasons for delay: these are the inherent time requirements of the case, the actions of the accused, the actions of the Crown, limits on institutional resources and other reasons for delay. These categories are not meant to assign blame, but serve as a means by which delay can be considered.
d. Prejudice to the accused: prejudice maybe proved by the accused or inferred from the length of delay. The presence of prejudice, however, is not dispositive of the application. Prejudice is just one factor, albeit an important one, in the overall determination of reasonableness.
[23] When determining whether delay in a particular case is unreasonable, a court must balance the societal interest in adjudication on the merits with the length and causes of delay and its corresponding impact on the accused. The interests of an accused are to be balanced against society's interest in law enforcement. As the seriousness of the offence increases, so does the societal interest in ensuring a trial on the merits. Likewise, increased prejudice militates in favour of a stay of proceedings. In the end, the ultimate determination of reasonable mass is decided on the facts of each case in light of the particular accused and the circumstances leading to the delay being challenged.
[24] The court in Morin established guidelines for what may constitute reasonable systemic or institutional delay, namely 8 to 10 months in the Ontario Court of Justice and 6 to 8 months in the Superior Court of Justice. However, the guidelines are not limitation periods and were not intended to be applied strictly. In R v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, the Supreme Court of Canada clarified that delay in excess of the Morin guidelines does not in and of itself render the delay unreasonable. The delay must be assessed in light of the explanations for delay, prejudice to the accused, and society's interest in adjudication on the merits.
[25] The Ontario Court of Appeal approved of that approach in R. v. Williamson 2014 ONCA 598, in the following words:
(b) The Decision Under Appeal
21 The trial judge's decision correctly set out the analytical framework to be applied in an application under s. 11(b) of the Charter, taken from R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, and a number of other decisions, including the decision of this court in R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, which approved the approach Code J. took in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187.
22 The factors to be assessed are: (1) the overall length of delay from the laying of charges until the trial concludes; (2) the waiver of any individual time periods; (3) the reasons for the various periods of delay; and (4) the prejudice to the particular interests of the accused that are protected by s. 11(b). The court is then obliged to consider whether the delay is unreasonable, and in doing so, to balance the interests of the accused and the societal interest in a trial on the merits: see Lahiry, at para. 9; Tran, at para. 24; Morin, at pp. 786-803.
POSITION OF THE APPLICANT
[26] Counsel for the applicant relies on R. v. Askov 1990 CanLII 45 (SCC), [1990] S.C.J. No. 106, para. 50, “very lengthy delays may be such that they cannot be justified for any reason.” He points out that the possession of marijuana count falls within the absolute jurisdiction of the Ontario Court of Justice and that his client has provided a medical prescription for the Percocets.
[27] He agrees that normal intake into the Ontario Court of Justice is three months, that his client specifically waived one month in the Superior Court, namely from November 21 until December 19, and that it was defence delay that set the Superior Court judicial pre-trial for January 28, 2015 rather than January 14.
[28] He submits that aside from three months normal intake and the one month specifically waived by defence, the remaining 25.5 months is either Crown or institutional delay, well outside the Morin guidelines. He submits that this is a case where the Crown should have severed Ms. Amey’s charges because of the delays caused by Mr. Eyre’s counsel’s unavailability.
[29] He submits that Ms. Amey has demonstrated actual prejudice arising from her health, her relationship with her husband, her financial situation and the impact on her ability to do volunteer work.
POSITION OF THE CROWN
[30] The Crown takes the position that 660 days is properly attributable to intake or inherent delay, including the need for scheduling and attendance at judicial pre-trials. He submits that this is not a case that has reached the point where the Crown was obliged to sever Ms. Amey’s charges. He submits that only 17 days can be attributed to the Crown and 228 days to institutional delay. This amounts to eight months in total, well within the guidelines for a two-phase trial.
[31] He submits that there is no actual prejudice demonstrated on the record. Whatever misfortune that Ms. Amey has suffered has been due to the charges alone and not from any delay. He submits that we are not at a point where inferred prejudice due to delay is of any significance.
ANALYSIS
Length of Delay
[32] The relevant time frame is from June 17, 2013 to January 15, 2016, which totals 31 months. Such a time frame warrants judicial scrutiny.
Waiver by the Accused
[33] The accused/applicant specifically waived the period from November 21, 2014 to December 19, 2014.
Reasons for Delay
[34] The two main issues for consideration in this application brought by Ms. Amey are:
a. Whether the time necessary to set and conduct judicial pre-trials should be treated as inherent or neutral time; and
b. What attribution should be made in regard to delay that results solely from the lack of availability of counsel for Mr. Eyre, a co-accused.
The time from June 17, 2013 until December 3, 2013 (5.5 months)
[35] Crown counsel in Exhibit 1 has accurately summarized briefly what occurred on each of the appearances during this time frame.
[36] Apart from 1 month, commencing September 30 until October 31st, which I attribute to two weeks Crown delay in disclosure necessitating a further two week adjournment for defence to review that disclosure, I agree with the Crown characterization that this is properly characterized as intake. R. v. Tran 2012 ONCA 18, para. 34 and R. v. Konstantakos 2014 ONCA 21, para. 8. Indeed, counsel for the applicant agreed orally and in his factum, that three months was normal intake. In this case, a two-week adjournment was necessary on October 31 because defence counsel did not attend and two pre-trials were heard in the OC J.
[37] Accordingly, of this period, I attribute one month delay to the Crown, and 4.5 months to normal intake, inherent time.
The time from December 3, 2013 until January 4, 2016, the scheduled start of a 2 week jury trial
[38] Crown counsel in Exhibit 1 has accurately summarized briefly what occurred on each of the appearance dates.
[39] Subject to the issue as to how to attribute delays caused by the unavailability of Mr. Eyre’s counsel, I agree completely with the detailed attribution assigned by the Crown to each of the delay periods identified by him in Ex.1.
[40] The delay caused by Mr. Eye’s counsel totals 76 days, plus 123 days, plus 140 days as identified in Ex. 1, for a total of 339 days, approximately 11 months. If this is characterized as intake as submitted by the Crown, then the delay in this case due to Crown or institutional delay is 258 days. The difference between this figure and the Crown’s figure is my attribution of the two weeks needed by defence to review the late disclosure. This amounts to 8 ½ months of Crown or institutional delay, which is well within the guidelines for two-phase trial. Indeed it is within the guidelines for the Ontario Court of Justice alone. In this calculation, the Crown allowed two months for counsel to prepare for trial, twice the time allowed in Konstantakos. I agree with this.
[41] If the delay caused by Mr. Eyre’s counsel is not characterized as intake or inherent as submitted by the Crown and if Ms. Amy should not be burdened with this delay, then the delay in her case would total 19 ½ months. This is just outside the top end of the guidelines for a two-phase trial which involves three co-accused, three counsel at least initially and cell phone investigation and disclosure.
[42] To determine how in law to attribute the delay caused by Mr. Eyre’s counsel, I have considered carefully the cases cited to me by counsel, namely, R. v. Whylie (ONCA) heard Feb. 8, 2006, R. v. Topol 2008 ONCA 113, [2008] O.J. No. 535 ( ONCA), R. v. Tomlinson [2008] O.J. No. 3524 ( SCJ) and R. v. Charles 2013 ONSC 216 and R v. Shi 2014 ONSC 6653.
[43] The facts in Whylie gave rise to a situation that is distinct from that in the present case. There, the Crown initially severed Whylie from his co-accused, but later rejoined them to be tried together, causing the loss of a trial date at a point in time when Whylie had already been in the system for two years. The court characterized the Crown's action as “persisted” and agreeing to set a new date for trial to accommodate the second accused’s lawyer.
[44] The Court of Appeal articulated the ordinary rule that “persons charged jointly with an offence should be tried together.” In Tomlinson, the principle is stated as “individuals charged jointly with the same offence” should ordinarily be tried together. In Charles, it is stated as follows, “persons jointly charged with an offence should be tried together”, or “are said to have acted in concert.”
[45] Counsel for the applicant in this case relies on Topol for the proposition that the court must be mindful that there comes a point where the Crown should have ceased to accommodate the busy schedules of counsel for the co-accused or severed the accused. It is important to note that the trial judge in Topol, whose decision to grant an 11(b) stay was upheld by the Court of Appeal, noted that the Crown in that case, had made the decision to sever Mr. Topol’s charges, but then sought to rejoin him to the other accused (para. 67, R. v. Topol [2007] O.J. No. 3094 (SCJ)). That is the same situation as occurred in Whylie.
[46] That fact was absent in Tomlinson, Charles and Shi and in the present case. The trial court decisions in Tomlinson, 42 months with the accused in jail, Charles, 35 ½ months total delay in a drug case, and Shi, 23 months with the preliminary inquiry waived and four accused in a drug case, resulted in the 11(b) applications being denied. In Shi, the court noted that that accused had not applied for a severance and further, that that accused had been forced into an SCJ jury trial because one of the co-accused wanted a jury trial. Those facts are similar to those before me.
[47] The Crown theory in this case is that Mr. Eyre was a seller of cocaine at a high level and that Mr. Amey had texted Mr. Eyre to arrange to purchase cocaine, and that is why he attended at Mr. Eyre’s stash house. The Crown theory is that the second person who attended was supplying the cocaine to be sold. The Crown theory is that Tammy Amey was holding the cash that Mr. Amey was going to use to make his purchase. The possession by Ms. Amey of the Percocet and the marijuana found in the Amey vehicle are peripheral to the main Crown theory, but could go to show activity involving illegal drugs.
[48] I began these reasons by specifically identifying the persons and the charges set out in the indictment. I specifically asked the Crown during submissions whether Tammy Amey was “jointly charged with Mr. Eyre with the same offence,” mindful of the principle cited above. His response was, no, Andy Amey is jointly charged with Eyre, and Tammy Amey is jointly charged with Andy Amey.
[49] Bearing in mind that Tammy Amey was holding a large sum of cash, and acknowledging that at trial, she may raise a reasonable doubt about a legitimate reason, and that her husband, on the Crown theory, was present to make a purchase of cocaine from Mr. Eyre, and that the Crown theory is that there is evidence of illegal drug activity upon the part of both Mr. and Mrs. Amey, arising out of the Percocets and the marijuana, I find that this is a case where the three accused are jointly charged with an offence and could be found to have been acting in concert and should, for all of the stated policy reasons, be tried together.
[50] Although it is very close to the line, I find that this is a case where the point had not yet come where the Crown was obliged to sever Ms. Amy's charges in order to preserve her right to a trial within a reasonable time. R. v. Nguyen 2013 ONCA 169, para. 71.
[51] Therefore, I find that the 11 months delay caused by Mr. Eyre’s counsel does not give rise to a breach of Ms. Amey’s 11(b) rights. The total of Crown and institutional delay in her case amounts to 8 ½ months.
Prejudice to the Accused/Applicant
[52] I have considered Ms. Amey’s affidavit evidence and her testimony with respect to actual prejudice and in particular, her health, her relationship and finances. I find that any negative impact on her arises from the fact of the charges alone and not the delay involved in the case. In addition, while she may be embarrassed to continue her admirable volunteer work, and that embarrassment is prolonged pending the resolution of the charges, this does not, in my view, constitute actual prejudice. I am not satisfied that there has been any palpable prejudice to Ms. Amey's personal security, her liberty interest or her right to a fair trial.
Societal Interest
[53] In this case, the inferred prejudice from the identified delay does not outweigh society's very high interest in seeing these very serious charges involving trafficking in cocaine tried on the merits.
[54] For these reasons, Ms. Amey's application under section 11(b) of the Charter is dismissed.
Honourable Justice Gary W. Tranmer
Released: November 13, 2015
COURT FILE NO.: CR-14-0534-00
DATE: 2015 Nov 13
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
HER MAJESTY THE QUEEN
– and –
Michael John EYRE,
Andy Stephen AMEY and
Tammy Hilda AMEY
Respondents
DECISION on 11(b) APPLICATION
Tranmer J.
Released: November 13, 2015