ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: 15-30000039-0000
DATE: 20151117
B E T W E E N:
HER MAJESTY THE QUEEN
J. Smith, for the respondent
Respondent
- and -
ZOHAIB HAFEEZ
D. Siziba, for the applicant
Applicant
HEARD: November 13, 2015
Nordheimer J.:
[1] Mr. Hafeez seeks a stay of the charges against him on the basis that there has been an unreasonable delay in bringing this matter to trial such that it offends his right to a timely trial under s. 11(b) of the Canadian Charter of Rights and Freedoms.
[2] The applicant faces three charges of robbery with a firearm and three charges of unlawful confinement. The charges arise from the robbery of three males allegedly undertaken by the applicant and others. The robberies occurred while the victims were held in a motor vehicle at gunpoint. The robberies occurred on December 24, 2012.
[3] The applicant was arrested on August 10, 2013. The others allegedly involved in this robbery were separately charged and had been arrested some months earlier. The applicant’s trial in this court is scheduled to commence on January 11, 2016 for a period of three weeks, thus ending on January 29, 2016.
[4] As of January 29, 2016, two years, five months and twenty days will have passed since the applicant was charged. This is the relevant period of time that must be examined: R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 at para. 35(QL).
[5] I do not intend to recite, in tedious detail, each of the steps taken to date in this prosecution. Rather, I will set out those steps, and the related time periods, in the chart that appears later in these reasons. The chart also includes my allocation of those time periods between the standard reasons for the delay.
The Four Factors
[6] The four factors to be considered in determining whether an accused person’s s. 11(b) rights have been infringed are set out in a number of cases but they may all be traced back to the decision in R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120. The four factors are (a) the length of the delay; (b) whether the accused has waived any time periods; (c) the reasons for the delay and (d) the issue of prejudice to the accused person.
[7] I will deal with each of those factors.
A. The length of the delay
[8] As I have just noted, the total time from the date of the charges to the current trial date is almost thirty months. Such a period of time is of sufficient length to warrant scrutiny by this court as constituting a possible infringement of the accused’s s. 11(b) rights under the Charter. The Crown does not dispute that this is the case.
[9] Before turning to the allocation of periods of time involved in this case, it may be helpful to first divide the time spent between the two levels of court. The total time between the date of the charges to the committal for trial in the Ontario Court of Justice is one year, four months, twenty days or approximately seventeen months. The total time between the committal for trial and the trial itself in this court is one year and fourteen days or just less than thirteen months.
B. Waiver of time periods
[10] It is agreed that there are no instances where the applicant can be said to have waived any periods of time.
C. Reasons for the delay
[11] This factor is broken down into five sub-categories.
(i) the inherent time requirements of the case
[12] As was observed in Morin, every case has its own inherent time requirements. A number of time periods in this case fall into this category. The three month period from August 10 to November 7, 2013 is a reasonable and normal period to have the initial appearances, to have counsel retained, to deal with the issue of bail, and to make the case ready to set a judicial pre-trial in the Ontario Court of Justice. So is the allowance of a one month period from January 28 to February 25, 2014 to get to the judicial pre-trial. It is recognized that the holding of a judicial pre-trial (or pre-hearing conference) is a necessary and desirable aspect of the proceedings and that the time required to schedule, prepare for and conduct a pre-trial is part of the inherent time requirements of the case – see R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 (C.A.) at para. 54.
[13] Similarly, the one month period from December 29, 2014 to January 29, 2015 for the matter to move from the Ontario Court of Justice to the first appearance in this court is a reasonable and normal period. So is the further one month period from January 29 to February 24, 2015 to schedule a judicial pre-trial in this court.
[14] The eleven months from the time of the pre-trial in this court, February 24, 2015, to the trial date, January 11, 2016, is institutional delay, but not exclusively so. It is recognized that there will always be some amount of time characteristically required in a case to allow for counsel to be available for a trial, as well as the need for some period of time to prepare for trial. These periods are inherent time requirements of any case. In this case, three of those months constitute inherent time requirements of the case as defence counsel was not available for a trial before June 2015.
[15] The same principle applies to the time between the completion of the judicial pre-trial in the Ontario Court of Justice and the commencement of the preliminary hearing. In that instance, however, defence counsel did not indicate his earliest availability to conduct a preliminary hearing when the date for the preliminary hearing was set. The Crown submits that, in the absence of evidence as to that availability, the court should presume a three month period as a reasonable time for preparation. In my view, that presumed time period is too long. The time required to prepare for a preliminary hearing is going to be significantly shorter than is the time required to prepare for a trial, given the different issues involved and the different legal test that the Crown needs to meet. While I may be being overly generous in this respect to the defence position, I would assign a period of one month for that purpose.
(ii) actions of the accused
[16] There is one instance where the defence bears responsibility for some of the delay. That is the period from November 7 to December 5, 2013 when the applicant had finally retained counsel and counsel needed time to review the disclosure. That resulted in an additional month before the pre-trial could be scheduled.
[17] The applicant complains about disclosure issues that arose at other points in time but, with one exception that I shall mention under the next category, it is not clear to me that those issues resulted in any additional delay in this case. Further, it is well-established that the defence cannot insist on having each and every piece of disclosure that they might desire before agreeing to set dates for a preliminary hearing or for a trial: R. v. Kovacs-Tatar (2006), 2004 42923 (ON CA), 73 O.R. (3d) 161 (C.A.) at para. 47. In fairness, defence counsel proceeded to set a pre-trial date in this case without all of the disclosure issues being resolved.
(iii) actions of the Crown
[18] The Crown is responsible for the two month delay between December 5, 2013 and January 28, 2014 in being able to set a date for the judicial pre-trial due to missing disclosure. While the Crown accepts responsibility for one month of that delay, it argues that it is not responsible for the other month. I do not agree. This was not an especially complicated case and disclosure had already been made to the other accused. There should not have been any additional delay arising from the nature of the case or the late addition of the applicant as a further accused. In addition, the Crown cannot claim, in these circumstances, allowance for another month, as part of the inherent time requirements of the case, in terms of setting a date for the judicial pre-trial. One month has already been allowed for that reason. The Crown cannot claim a second month for the same purpose as that would amount to double counting. The Crown thus bears responsibility for the two months of delay.
[19] The Crown is also responsible for the four week delay in the completion of the preliminary hearing. The preliminary hearing was supposed to take place on November 20 & 21. Before the commencement of the preliminary, the court announced that the second day was no longer available. The reason for this is unclear on the record. The court said that the preliminary could be continued on November 25 but the Crown was not available to continue that day. Of the other continuation dates offered by the court, the defence was available on some but the Crown was not available until December 19. That date was, however, not available to defence counsel. Both counsel were available on December 29 and the preliminary hearing continued and concluded on that day.
[20] The Crown says that the defence should bear responsibility for the period from December 19 to December 29. Again, I do not agree. Having been the cause of the majority of the delay in obtaining a date for the continuation of the preliminary, the Crown cannot insist that defence counsel be available as soon as the Crown happens to be. Defence counsel is entitled to a reasonable period to free up time in his schedule. Ten days is not unreasonable for that purpose, especially given the time of year in which all of this occurred. The Crown must therefore take responsibility for the entire month of delay.
(iv) limits on institutional resources
[21] There are two aspects of the delay that fall under this factor.
[22] First, is the fact that the earliest dates for the preliminary hearing that the Ontario Court of Justice could offer were nine months away from the time that the date was set.
[23] Second, is the fact that the earliest trial date that this court could offer, after the case had been pre-tried, was eleven months away.
[24] The time period in the Ontario Court of Justice is within the guidelines (although just so) that were suggested in Morin, where Sopinka J. said, at para. 55(QL):
In Askov, Cory J., after reviewing comparative statistics suggested that a period in the range of six to eight months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this court to suggest a period of institutional delay of between eight and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of six to eight months that was suggested in Askov.
[25] The time period in this court, of eleven months, initially appears to be outside the guidelines but, when one deducts the portion of that period for which defence counsel was not available, the delay is only eight months and, thus, just at the outer limits of the guidelines. Engaging in this artificial exercise of discounting delay based on defence counsel’s schedule is mandated by the authorities: R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) at para. 32. It does not change the fact, however, that the total period of eleven months before which this court could offer a date for a three week trial is problematic. This court ought to be able to provide more timely trial dates than occurred in this case, whether counsel can take them up or not.
[26] Nevertheless, the guidelines are just that, guidelines, not limitation periods. I recognize that the guidelines may require adjustment for “local conditions” and “changing circumstances”. There is, however, no evidence before me that any unanticipated or unusual events have occurred in recent times in the Toronto region that would excuse any delay beyond these guidelines. Rather, the delay in providing a trial date appears to be the direct result of a lack of resources being made available for the conduct of serious criminal trials in this Region. I also recognize that the guidelines may also be adjusted by several months in either direction as a consequence of the presence or absence of prejudice: Morin at para. 76(QL).
(v) other reasons for delay
[27] There are no other reasons for the delay in this case.
D. Prejudice to the applicant
[28] There are two aspects to this factor. One is actual prejudice and the other is inferred prejudice. Both are equally important considerations. In my view, prejudice can be inferred in this case given the time that has passed. Two and one-half years for a matter such as this to get from arrest to trial is excessive but, unfortunately, not unusual.
[29] The other aspect of prejudice is actual prejudice. The applicant has filed an affidavit recounting the fact that the charges have interfered with his ability to obtain permanent residence status in this country. While I accept that there is prejudice that arises from that delay, it is also the fact that the applicant was released on bail shortly after being arrested with a curfew condition. He has been employed during the time that these charges have been outstanding, including obtaining a variation to the curfew condition to assist with this employment. There is no other particular prejudice to which the applicant can point, other than having to wait for his application for permanent residence status to be considered. The overall prejudice to the applicant that arises in this case is, therefore, limited.
[30] I am satisfied that there is both inferred and actual prejudice to the applicants arising from the delay in this case. The total prejudice incurred is not, however, severe and consequently does not weigh heavily in the overall analysis.
Calculation of the delay
[31] The Court of Appeal has made it clear that all of the various steps must be accounted for and the related time allocated among the various causes of delay. My allocation of that time is as follows:
Ontario Court of Justice
August 10 – November 7, 2013
3 months
Intake period - neutral
November 7 – December 5, 2013
1 month
Actions of the defence
December 5, 2013 – January 28, 2014
2 months
Actions of the Crown
January 28 – February 25, 2014
1 month
Inherent time requirements - neutral
February 25 – November 20, 2014
9 months
1 month: inherent time requirements - neutral
8 months: Institutional delay
November 20 – December 19, 2014
1 month
Actions of the Crown
Superior Court of Justice
December 29, 2014 – January 29, 2015
1 month
Intake period - neutral
January 29 – February 24, 2015
1 month
Inherent time requirements - neutral
February 24, 2015 – January 29, 2016
11 months
3 months: inherent time requirements – neutral
8 months: institutional delay
[32] To arrive at the final conclusion, one must take the total period of time between arrest and trial, deduct from that period the time for which the defence is responsible, further deduct the neutral periods (i.e. the intake periods and the inherent time requirements of the case) and then compare the remaining time period with the guidelines to determine its reasonableness. I take this to be the proper approach based on my reading of the Supreme Court of Canada’s decision in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3. The fact that the guidelines are exceeded does not, however, lead inexorably to a conclusion that the delay is unreasonable. As Cromwell J. said in Godin, at para. 5:
It is clear that these guidelines were substantially exceeded in this case. That, on its own, does not make the delay unreasonable.
[33] Employing this approach, and with reference to the allocations I have set out above, the neutral time periods constitute ten months and the delays caused by the defence total one month. The resulting institutional delay and Crown delay is equal to nineteen months, which is just one month above the outside limit of the Morin guidelines.
Balancing
[34] Finally, the problems that delay causes for the accused person must be balanced against the community’s interest in seeing that criminal charges are disposed of in a timely manner. The fact that there must be a balancing between these competing objectives means that there can be no hard and fast rule as to when delay passes from reasonable delay to unreasonable delay. As the Court of Appeal observed in R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No. 5004 (C.A.) at para 26:
The determination of what constitutes a ‘reasonable’ time for trial under s. 11(b) of the Charter is fact driven and case specific. Accordingly, the weight to be attached to the governing factors in assessing the ‘reasonableness’ of delay and in balancing the sometimes competing interests protected by s. 11(b) will vary from case to case. Not every pre-trial delay will constitute unreasonable delay for constitutional purposes.
[35] The one case to which the defence points as being similar to the case here is R. v. Saeed, [2009] O.J. No. 2577 (S.C.J.) where the charges were stayed for delay. However, in that case, the delay was longer, the proposed trial was only expected to last one week (and thus should have been more readily accommodated with an earlier trial date), and the accused had been under house arrest for a lengthy period of time that precluded him from working as well as interfering with his social activities. Those distinctions from Saeed only reinforce the above point from Seegmiller that each case is fact specific.
[36] It is accepted that the community’s interest in seeing that persons are properly tried on any criminal charge increases as the seriousness of the charge increases. The charges in this case are very serious. There is also a measure of complexity to this case, as the defence acknowledges. The period of delay in this case, beyond that for which either the defence is responsible or that involved the inherent time requirements of the case, and thus may be considered unreasonable, is only a month beyond the outer limits of the Morin guidelines. I balance that fact with the fact that the prejudice that the applicant has suffered arising from this delay is not especially great or of particular severity. The relatively short period of unreasonable delay is greatly outweighed by the societal interest in having these fairly serious charges determined on their merits.
[37] For these reasons, I have concluded that the applicant’s rights under s. 11(b) of the Charter have not been infringed. The application is dismissed.
NORDHEIMER J.
Released: November 17, 2015
COURT FILE NO.: 15-30000039-0000
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
ZOHAIB HAFEEZ
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: