R. v. Ovid, 2015 ONSC 7529

CITATION: R. v. Ovid, 2015 ONSC 7529

COURT FILE NO.: CR-15-90000544-0000

DATE: 20151202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

SEAN ARRINDELL OVID

Applicant

Kandia Aird, for the Crown

Marianne Salih, for the Applicant

HEARD: October 5 and 6, 2015

REASONS ON AN APPLICATION PURSUANT TO SECTIONS 11(b) AND 24(2) OF THE CHARTER

B. P. O’Marra, J.

1The applicant sought a stay of the charges against him based on a breach of his right to be tried within a reasonable time under s. 11(b) of the Charter. On March 11, 2013 he was arrested and charged with possession of cocaine and marijuana for the purposes of trafficking and possession of the proceeds of crime.

2The trial was to commence on October 5, 2015. As of that date, approximately 31 months had passed since he was charged. The applicant submits that the institutional and crown delay in this case is 24 months. The crown submits that the total institutional delay is approximately 21 months. The applicant responds that even at 21 months the combined institutional and crown delay amounts to a breach of s. 11 (b) of the Charter.

3On October 6, 2015, I dismissed the application. These are my reasons.

GENERAL PRINCIPLES

4The accused has the burden of establishing the alleged violation of s.11 (b) of the Charter on a balance of probabilities. See R. v. Morin, [1992] 1 S.C.R. 771 at pp. 787-803..

5In the very recent case of R. v. Eyre, Amey and Amey, 2015 ONSC 6927, Justice Tranmer set out the well-established principles that govern applications under s. 11(b) at paras. 24 and 25:

24In 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] 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.

25The 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] 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.

Length of Delay

6The crown properly concedes that the total delay in this case warrants judicial scrutiny.

Waiver

7The crown does not suggest that the applicant waived any periods of time.

TIMELINE IN THE TWO LEVELS OF COURT

Proceedings in the Ontario Court of Justice

March 13, 2013 - Arrested – 2 counts of possession of cocaine for the purpose of trafficking, 1 count of possession of marijuana for the purpose of trafficking, 1 count of proceeds of crime

March 14, 2013 - for bail hearing – adjourned at request of the defence to March 18, 2013

March 18, 2013 - bail hearing adjourned at request of defence to March 21, 2013

March 21, 2013 - released on bail - $10,000, no deposit, two sureties, house arrest terms.

Adjourned to April 12, 2013.

April 12, 2013 - disclosure provided – adjourned for crown pretrial – crown not available

until the week of April 29, 2013 – adjourned on consent to May 13, 2013

May 13, 2013 - adjourned on consent to June 18, 2013 for judicial pretrial

June 18, 2013 - judicial pretrial held – preliminary hearing set for February 14 and 21,

2014 – these were the first available dates offered by the court – defence

was available to conduct preliminary hearing as of June 24, 2013

October 15, 2013 - arrested on new charges – bail cancelled pursuant to s. 524 of the Criminal Code

November 5, 2013 - new bail set on all charges, same terms as original bail – accused unable to meet the terms and remains in custody

February 14, 2014 - day one of preliminary hearing proceeds – remand to February 21, 2014 to continue

February 21, 2014 - preliminary hearing cannot be completed due to unavailability of crown witness caused by a death in his family – crown advises the court that they will agree to a lower amount of bail – new date to complete preliminary hearing set for March 12, 2014

March 5, 2014 - on consent, bail varied to $ 2,000 without deposit, house arrest terms. Accused released.

March 10, 2014 - second set of charges from October 15, 2013 stayed at request of the crown

March 12, 2014 - preliminary hearing completed – committal for trial – 1^st^ appearance in Superior Court set for April 30, 2014

Proceedings in the Superior Court of Justice

April 30, 2014 - first appearance – judicial pretrial set for May 14, 2014

May 14, 2014 - judicial pretrial cancelled based on unavailability of a judge – new judicial pretrial date set for June 4, 2014

June 4, 2014 - judicial pretrial held – trial set for March 23, 2015 – defence was available to conduct the trial from July 14, 2014 – counsel estimate 8 days required for trial, including pretrial motions

February 24, 2015 - trial confirmed for March 23, 2015

March 23, 2015 - crown and defence attend for trial but there is no court available - adjourned to March 24, 2015

March 24, 2015 - crown and defence attend – no court available – adjourn to March 25, 2015 to set a new trial date

March 25, 2015 - new trial set for October 5, 2015 – first date available on an “in custody” basis even though accused is on bail – defence was available to conduct the trial immediately – crown agrees to vary bail – adjourn to March 30, 2015 for consent bail variation

March 30, 2015 - bail varied on consent – house arrest replaced with a curfew – trial confirmed for October 5, 2015

October 5, 2015 - trial date – submissions on s. 11(b) of the Charter

ANALYSIS

8The parties agree that the time from the arrest on March 11, 2013 to and including June 18, 2013 is properly classified as inherent delay.

9On June 18, 2013 the preliminary hearing was set for February 14 and 21, 2014. The defence indicated that they were ready to proceed as of June 24, 2013. On that basis, the applicant submits that institutional delay should be calculated from that date. The crown submits that 2 months from June 18, 2013 should be categorized as preparation/inherent time.

10While it is important for the defence to indicate their earliest available dates, that is not the sole factor in properly categorizing the time. The crown is entitled to some reasonable time to prepare and arrange for witnesses. The time required to prepare for a preliminary hearing will normally be significantly less than is required for trial in light of the issues involved and the different legal test the crown must meet. In my view, 30 days is a reasonable and fair period of time for that purpose. See R. v. Hafeez, 2015 ONSC 7118 at para. 15. Thus I view the time from June 18-July 18, 2013 as preparation/inherent time.

11The period from July 18, 2013 to February 14, 2014 and the time between February 14, 2014 and February 21, 2014 is institutional delay.

12Day two of the preliminary hearing had to be adjourned. A police officer scheduled to testify could not attend due to a death in his family. The applicant submits that the time from February 21 – March 12, 2014 is crown delay. I disagree. The administration of justice is a human process. From time to time, lawyers, judges, witnesses or jurors are unable to attend court for entirely valid and often unexpected reasons. Serious illness and death in the family are among those reasons. The adjournment of this preliminary hearing was unanticipated and not due to any lack of due diligence by the police or crown. When the adjournment was sought, the crown also advised the court and counsel that they would consent to a reduced bail for the applicant. This was a valid attempt to mitigate prejudice to the applicant. I categorize the time from February 21 – March 12, 2014 as neutral in the particular circumstances. The total institutional delay in the Ontario Court of Justice is approximately 7.25 months.

13The parties agree that the time from committal for trial in the Ontario Court to the first scheduled judicial pretrial on May 14, 2014 in the Superior Court is inherent delay. The further time to June 4, 2014 based on the unavailability of a judge is institutional (20 days).

14On June 4, 2014 the first trial date was set for March 23, 2015. The defence indicated they were available for trial from July 14, 2014. The applicant now claims that the time from July 14, 2014 is institutional delay. The nature and complexity of potential trial issues must be considered in categorizing the time from June 4, 2014.

15The applicant was alleged to have possessed powder cocaine, crack cocaine and marijuana for the purpose of trafficking. The drugs were found in a room controlled by the applicant. The evidence was seized pursuant to a telewarrant that had been authorized the same day. The Information to Obtain (ITO) the telewarrant was based significantly on information provided by a confidential source. The applicant was not in the room when the warrant was executed. He was arrested when he returned to the room as the police were still on site. The case for the crown was circumstantial.

16Counsel for the applicant submitted that one of the factors in assessing undue delay in this case is that the trial issues were not complex. If the evidence was ruled admissible, the sole issue for the jury would be whether the crown had proven possession beyond a reasonable doubt. The defence did not dispute that the quantity and value of the drugs, along with related items such as scales, would support the trafficking aspect if possession was proven.

17However, as is often the case, the pretrial issues are legally more complex than the trial on the merits. The crown’s case hinged on whether the drugs and related items were recovered lawfully. At the judicial pre-trial, counsel for the applicant advised there would be a Garofoli application to challenge the telewarrant. If a violation of s. 8 of the Charter was made out, there would be an application to exclude the evidence pursuant to s. 24(2).

18The ITO was based significantly on information from a confidential source. In order to fulfill its disclosure obligations and also protect informer privilege, the defence received a heavily redacted copy of the ITO. Based on Garofoli, a broad outline of the steps that would unfold on the s. 8 application is as follows:

(1) the defence seeking further particulars and information from the ITO;

(2) the defence seeking leave to cross-examine the deponent on the ITO;

(3) the crown providing further information to the defence while preserving informer privilege;

(4) the crown resorting to step 6 from Garofoli to ask the court to review the unredacted ITO in support of the telewarrant. This step includes the court receiving sealed information from the crown and preparing a judicial summary for use by the defence. This process routinely involves several drafts being exchanged by the crown and the court;

(5) final copy of the judicial summary provided to the defence;

(6) submissions on all aspects of the Garofoli application and time for the court to render a ruling.

19Applications to exclude evidence in the Superior Court based on alleged breaches of the Charter are governed by Rule 31 of the Criminal Proceedings Rules. The requirements include a notice of application with specific details as to the evidence in question and the alleged basis for exclusion.

20The notice of application and supporting materials are to be served and filed not later than 30 days before the scheduled hearing of the pre-trial motions or trial. The respondent is to serve and file materials in response no later than 10 days before the scheduled hearing or trial.

21The applicant submits that the institutional delay in the Superior Court begins from the first date that the defence was available for trial. It is important for counsel to indicate on the record their first and ongoing availability. See R. v. Lahiry, 2011 ONSC 6780 at paras. 26-37. However that is not the only and determinative factor. In accord with the Criminal Proceedings Rules and bearing in mind the significance and complexity of a Garofoli motion, a period of 60 days as inherent/preparation time from the set date is reasonable and fair. Careful preparation of such an application, notice to the court and crown, and time to prepare a response must be factored in. On this basis, the time from June 4 – August 4, 2014 should be categorized as inherent/preparation time.

22The period from August 4, 2014 to March 25, 2015 is institutional delay (approximately 7.75 months). The time between March 25, 2015 and the second trial date of October 5, 2015 is approximately 6.5 months of institutional delay. The total institutional delay in the Superior Court is 15 months.

Total Institutional Delay Ontario Court of Justice 7.25 months Superior Court of Justice 15.00 months 22.25 months

23In assessing the delay in a given case, the court must avoid the application of any mathematical or administrative formula and instead adopt a judicial determination that balances the interests protected by s.11(b) against factors that either inevitably lead to delay or otherwise cause delay. See R. v. Nguyen, 2013 ONCA 169 at para. 49.

24The single most troubling period of delay in these proceedings occurred when the first trial date had to be adjourned due to lack of court space. That added 6.5 months to the total institutional delay. An “in custody” date was secured even though the applicant was on bail. This indicated that the court and crown made the new trial date a priority. The crown also consented to vary the bail to replace the house arrest term with a curfew and other terms. These were reasonable and appropriate accommodations.

Prejudice

25The focus of prejudice under s. 11 (b) is the prejudice flowing from a situation prolonged by delay rather than the mere fact of being charged with criminal offences. See R. v. Kovacs – Tatar, [2004] O.J. No. 4756 (C.A.) at para. 32.

26The applicant submits that he has sustained both inferred and actual prejudice. He specifically relies on the time he spent in custody and the stringent house arrest terms when he was on bail.

27In light of the serious charges alleged, it is not surprising that there were stringent terms of bail when he was initially released eight days after his arrest. The applicant spent 151 days in pretrial custody. The majority of that time was triggered by new charges alleged to have occurred while he was on bail for the current charges. The new charges were ultimately stayed by the crown. I did not receive any information as to what the new charges were, or why they were eventually stayed by the crown. On the record before me I cannot attribute the time in custody after the s. 524 application on October 15, 2013 solely to the current charges. The bail was cancelled not because of any delay in the case but rather because there were new criminal allegations.

28On March 5, 2014 the crown consented to a significantly reduced amount of bail without deposit and the applicant was released. On March 30, 2015, the crown agreed to vary the bail to substitute a curfew for the house arrest term. These actions significantly mitigated the prejudice related to the applicant’s security interests.

29The applicant does not allege that the passage of time in this case has prejudiced his fair trial interests.

Balancing of Interests

30The final stage of the analysis requires a balancing of the individual and state interests that s. 11 (b) is designed to protect. See R. v. MacDougall, [1998] 3 S.C.R. 45 at paras. 28-38.

31The applicant sustained some prejudice to his security interests but this was not significantly based on any delay in the case. The substantial interest that society has in seeing that serious drug offences such as these are tried on their merits outweighs the interest of the applicant and society in a more prompt trial.

RESULT

32Application dismissed.

B. P. O’Marra, J.