R. v. Mushfiq Mawla, 2015 ONSC 912
COURT FILE NO.: CR-14-40000445-0000
DATE: 20150210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MUSHFIQ MAWLA
Sheila Cressman, for the Respondent,
Her Majesty the Queen
Daniel Rechtshaffen, for the Applicant, Mushfiq Mawla
HEARD: January 22, 2015
DUNNET J.:
Overview
[1] The applicant is charged with sexual assault. He brings this application to stay the proceedings against him pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time pursuant to s. 11(b) of the Charter.
[2] The determination of what constitutes a reasonable time for trial under s. 11(b) of the Charter is fact driven and case specific: R. v. Seegmiller (2004), 2004 46219 (ON CA), 191 C.C.C. (3d) 347, 192 O.A.C. 320 (C.A.) at para. 26.
[3] The total length of delay in this matter is thirty-one months. The position of the applicant is that the delay is attributable to the failure of the Crown to make timely disclosure and a lack of institutional resources.
[4] For the reasons that follow, I have concluded that the applicant has satisfied his onus on a balance of probabilities. I have similarly concluded that the final balancing of interests in this matter demonstrates an unjustifiable violation of the s. 11(b) right of the applicant.
Chronological History
[5] On August 10, 2012, the applicant was arrested and released on a recognizance requiring him to live with his parents and obey a curfew.
[6] On September 14, 2012, counsel had been partially retained and initial disclosure provided.
[7] On October 12, 2012, further disclosure was provided.
[8] On November 9, 2012, counsel for the applicant was “very eagerly” waiting for more disclosure, including the videotaped statements from a witness and the complainant, and some Facebook information. Crown counsel could find no indication in the brief that disclosure was available.
[9] On November 22, 2012, the complainant’s videotaped statement was disclosed, which contained information regarding another complaint made by the complainant about a sexual assault in 2008. During the Crown pre-trial on December 20, 2012, Crown counsel agreed to provide the 2008 occurrence report.
[10] On December 21, 2012, a judicial pre-trial was set for January 15, 2013. Counsel for the applicant was still waiting for disclosure of the videotaped statement of the witness and Facebook information.
[11] On January 15, 2013, although counsel had not received the videotaped statement of the witness, the Facebook information, or the 2008 occurrence report, he proceeded with the pre-trial, following which the preliminary inquiry was set for one and one-half days on November 12 and 13, 2013. These were the first dates available to the court. However, counsel for the applicant could have proceeded in April, May, June, July, August, September and October 2013.
[12] During the January 15, 2013 attendance, the court addressed the applicant:
The Court: Mr. Mawla, do you understand, sir, that by setting this date for November 12, 2013, the matter will proceed with or without counsel? Do you agree with that?
The Accused: Yes, sir.
[13] Counsel for the applicant then addressed the issue of disclosure:
I don’t want to cause any delay in this matter and my client is anxious to move this ahead, but just so it’s clear, I’m operating on two thirds of the civilian statements, rather than 100 per cent of the civilian statements at this point.
[14] On January 23, 2013, Crown counsel took the position that the 2008 occurrence report would not be disclosed. This was contrary to the position taken at the December 20, 2012 pre-trial during which the Crown agreed to disclose that report.
[15] On August 6, 2013, the applicant reiterated his request for disclosure pursuant to R. v. Quesnelle, 2013 ONCA 180, 297 C.C.C. (3d) 414, which had been released on March 26, 2013. The court in Quesnelle held that there is no reasonable expectation of privacy in information a complainant provides to police in a proceeding where a sexual assault is alleged. The court concluded that occurrence reports are part of the fruits of the investigation and producable under R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1 as part of the Crown’s first party disclosure obligations.
[16] On September 17, 2013, counsel for the applicant confirmed that he was fully retained and ready to proceed with the preliminary inquiry on November 12, 2013. He restated his request for disclosure and the matter was remanded directly to the preliminary hearing on November 12, 2013.
[17] On October 30, 2013, Crown counsel sought an adjournment of the preliminary inquiry without formal notice to the court or the applicant. She told the court that during the summer, she learned that the complainant was living in Japan. The complainant said that it would be too difficult for her to attend the preliminary inquiry and Crown counsel asked the police to determine whether she “want[ed] to continue with this”. In October, the complainant agreed to testify by closed circuit television.
[18] Crown counsel told the court that the only courtroom available with video link capabilities required an undertaking by the Crown at the time of booking to fund the transcription of proceedings. The Crown’s position was that it was not prepared to make the undertaking until the Crown was satisfied that the complainant “definitely is able to proceed”.
[19] Counsel for the applicant advised the court that the first available dates for a preliminary inquiry in the video link courtroom were November 28 and 29, 2013, and he was able to accommodate those dates.
[20] At the court’s suggestion, Crown counsel spoke with the trial coordinator and confirmed that the courtroom could be reserved without a financial undertaking. She told the court, however, that because of difficulties in reaching the complainant, the Crown would not be ready to proceed with the preliminary inquiry on November 28 and 29, 2013.
[21] The next available dates offered by the court in the video link courtroom were March 5 and 6, 2014. Counsel for the applicant had earlier dates, but he was unable to proceed on those dates. Accordingly, the preliminary inquiry was adjourned to May 14 and 15, 2014.
[22] At the court appearance on October 30, 2013, counsel for the applicant applied to vary the bail to remove the curfew because of an employment opportunity, which would substantially increase the applicant’s earnings. Crown counsel refused. Counsel for the applicant informed the court that there had been two prior requests to vary the curfew condition. The court expressed concern about the position taken by the Crown and the curfew was removed.
[23] The matter was adjourned to November 28, 2013, in order to determine whether or not the Crown would be proceeding with the case.
[24] On November 1, 2013, without the consent of the applicant or on notice to the court, counsel appearing on behalf of the Crown asked that the matter be remanded to November 5, 2013. Crown counsel continued to refuse to disclose the 2008 occurrence report and consequently, a subpoena was served on the Toronto police.
[25] On November 5, 2013, Crown counsel informed the court that the complainant had agreed to testify by video link on November 28, 2013.
[26] By the time counsel for the applicant learned of this new development, he was no longer able to proceed on November 28 owing to other court commitments. In the interest of moving the matter forward, he was prepared to commence the preliminary inquiry on November 29, 2013. However, the second day could not be accommodated in the video link courtroom before May 15, 2014. Accordingly, the preliminary inquiry dates set on October 30, 2013 were confirmed.
[27] Crown counsel appearing on behalf of the assigned Crown on November 5, 2013 agreed to review the material produced by the Toronto police pursuant to the subpoena. After the court appearance, she advised counsel for the applicant that he “need not worry” about the disclosure and they would “work it out”. Counsel took her comment to mean that the Crown would be disclosing the occurrence report.
[28] Nevertheless, between November 5, 2013 and March 28, 2014, counsel for the applicant continued to make inquiries of the Crown regarding disclosure of the occurrence report and Crown counsel persisted in her position that the report would not be disclosed.
[29] On March 24, 2014, counsel for the applicant was successful in a ruling on a similar disclosure issue in another matter. He met with Crown counsel on March 28, 2014 and she agreed to provide the report.
[30] On May 7, 2014, seven days prior to the commencement of the preliminary inquiry, counsel for the applicant was provided with an occurrence report concerning the 2008 complaint. He learned for the first time that the complaint had been made to the Belleville police. On May 8, 2014, he requested all disclosure relating to the occurrence, including any statements made by the complainant and witnesses to the incident.
[31] On May 14, 2014, the preliminary inquiry commenced in the courtroom with video link capabilities. Crown counsel informed the court that at the last minute, the complainant had decided to testify in person and she was present in the courtroom.
[32] Counsel for the applicant raised the issue of outstanding disclosure, namely, the disclosure relating to the 2008 complaint that he had requested following receipt of the occurrence report on May 7, 2014. He advised the court that without that information, he was not in a position to assess the viability or propriety of an application under s. 276 of the Criminal Code to cross-examine the complainant on her prior sexual activity.
[33] Crown counsel informed the court that in 2008, the complainant had alleged a gang rape in Belleville and the charges were withdrawn because the evidence suggested that the sexual act was consensual. Crown counsel said that there were issues relating to the availability of the investigative file, but she would make efforts that evening to obtain the police notes. She refused to agree to an adjournment, stating:
We have spent thousands of dollars to bring [the complainant] here and I hope to have her evidence completed by tomorrow. My friend says that he is not in a position to cross-examine her without all that information and I, you know, sort of said – asked my friend if there’s any way he could sort of do his best.
[34] Crown counsel agreed to permit cross-examination of the complainant “if it was for the purpose of credibility”. The court confirmed the Crown’s position:
The Court: The Crown has agreed that it is relevant, disclosable evidence. She has agreed you can cross-examine, because it relates to credibility as well… and everybody is in agreement about that?
Crown counsel: That’s fine.
[35] Later, Crown counsel stated that she would only agree to counsel asking the complainant whether she had made a complaint. She added: “There is nothing my friend would gain by any witness statements [relating to the 2008 complaint].”
[36] In an effort to move the matter along, the evidence of the two civilian witnesses was called and the complainant testified in chief.
[37] The following day, Crown counsel produced the notes of the investigating police officer regarding the 2008 complaint. The witness statements and videotapes remained outstanding. Counsel for the applicant told the court that he required time to review the police notes that he had just received. However, he was content to proceed with the cross-examination of the complainant on his understanding that the Crown was conceding the relevance of the complainant’s credibility without the need to bring a formal application. Contrary to the position she had adopted the previous day, Crown counsel would not permit cross-examination on issues of credibility. In light of the Crown’s position, the court told counsel for the applicant that a formal s. 276 application would be required.
[38] Because the court had a planned vacation to Europe and counsel for the applicant had a planned trip to Nicaragua the following day, the matter was adjourned to June 6, 2014 to hear the s. 276 application and to June 9, 2014 for the cross-examination of the complainant.
[39] On June 6, 2014, counsel for the applicant advised the court that he had reviewed the case law and without the requested disclosure, the s. 276 application would be premature. The inquiry was adjourned in order to have the two Belleville police officers involved in the investigation testify on June 9, 2014 regarding the state of the outstanding disclosure.
[40] Contrary to Crown counsel’s submission on June 6, 2014 that the complainant had given only one statement, the Belleville police officers testified on June 9, 2014 that she had given three statements, one that was reduced to writing and two that were videotaped. The officers had also viewed a cellphone video, which was still in existence. Counsel for the applicant cross-examined the complainant. He was not permitted to cross-examine her about the 2008 complaint.
[41] At the conclusion of the preliminary inquiry, the applicant was committed to stand trial and the matter was remanded to July 31, 2014 in the Superior Court of Justice.
[42] On July 31, 2014, a judicial pre-trial was set for August 28, 2014. Following the pre-trial, a trial date was set for March 16, 2015 with or without counsel. The first date the court could offer was March 9, 2015.
Analytical Framework
[43] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. The factors that must be considered in determining whether an accused’s s. 11(b) right has been violated are:
Length of the delay;
Waiver of time periods;
Reasons for the delay, including
(a) inherent time requirements of the case;
(b) actions of the accused;
(c) actions of the Crown;
(d) limits on institutional resources; and
(e) other reasons for the delay.
- Prejudice to the accused.
[44] Having made findings about each of these four factors, the final balancing stage of the analysis requires consideration of the societal interest in a trial on the merits: R. v. Lahiry, 2011 ONSC 6780, 283 C.C.C. (3d) 525 at para. 4.
[45] In R. v. Godin, 2009 SCC 26, 245 C.C.C. (3d) 271 at para. 18, the Supreme Court of Canada stated:
This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin 1988 8 (SCC), [1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193] at p. 787, “[t]he general approach… is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.”
[46] In Godin at para. 5, the Court reiterated the guidelines set out in Morin that refer to periods of 8 to 10 months of institutional delay in the provincial court and of 6 to 8 months from committal to trial, for a total guideline period of between 14 and 18 months. The guidelines are not a limitation period. What is important is whether the overall time period required to bring the applicant’s matter to trial is unreasonable.
Length of the Delay
[47] The total length of delay in this matter encompasses the period from August 10, 2012 to March 9, 2015, which was the first date available for trial in the Superior Court. The total period of thirty-one months warrants an examination by the court to determine the reasons for the delay.
Waiver of Time Periods
[48] The applicant did not waive any delay in this case.
Reasons for the Delay
(a) inherent time requirements
[49] Inherent time requirements encompass the time it would normally take to process the case, assuming adequate resources and reasonable diligence. They are considered neutral between the applicant and the State. The Crown has the evidentiary burden of proving that a case is sufficiently complex to require a longer intake period.
[50] The applicant is charged with one count of sexual assault. This is a relatively straightforward case involving three civilian witnesses and two police officers. The witness statements were available on the date that the Information was sworn. A reasonable intake period for disclosure is two months from August 10, 2012 to October 12, 2012.
[51] Some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case. In this uncomplicated matter, a reasonable intake period to arrange and conduct pre-trials in the Ontario Court and Superior Court is a total period of two months.
(b) actions of the accused
[52] None of the delay in this matter is attributable to the applicant.
(c) actions of the Crown
[53] Actions of the Crown that delay the trial include a failure or delay in disclosure. From the outset, the applicant’s position with respect to the missing Stinchcombe disclosure was articulated at every appearance. In the interest of moving the matter ahead, counsel set the pre-trial in provincial court and the preliminary inquiry without adequate disclosure.
[54] At the pre-trial held on January 15, 2013, the video statement of one of the three Crown witnesses was missing. It was in existence at the time of arrest and no explanation was offered as to why the disclosure was not available.
[55] On November 22, 2012, the complainant’s videotaped statement was disclosed, which contained information that she had alleged being sexually assaulted in 2008. On December 20, 2012, Crown counsel agreed to disclose the occurrence report relating to the complaint.
[56] Despite repeated requests by telephone, emails, meetings and court appearances and despite the clear state of the law as of March 2013, Crown counsel did not produce that report until more than sixteen and one-half months after first agreeing to do so. As counsel told the court on May 14, 2014, “I’ve always wanted this disclosure.”
[57] Upon receipt of the report just seven days before the start of the preliminary inquiry, counsel for the applicant asked for witness statements and police notes from the 2008 incident and Crown counsel agreed to provide them.
[58] On the first day of the preliminary inquiry, Crown counsel did not have the requested disclosure. The following morning, she had managed to obtain the police notes.
[59] If disclosure of the occurrence report had been provided in a timely way, the time set aside for the preliminary inquiry would have been sufficient. Evidence was only called on two of the hearing dates and the evidence of the civilian witnesses and the complainant took very little time.
[60] During the preliminary hearing, Crown counsel’s focus seemed to be on accommodating the complainant’s schedule and minimizing the expenses related to her travel, rather than ensuring that the applicant was given access to materials that he required to make full answer and defence.
[61] Furthermore, although Crown counsel became aware during the summer of 2013 that the complainant may not be willing or able to attend the preliminary inquiry set for November 2013, the issue was not raised until two weeks before the inquiry was set to commence, despite court appearances on August 6 and September 17, 2013. The Crown did not bring a formal application for adjournment and provided the court with no assurance that even if the adjournment was granted, the complainant would testify in the matter. Additionally, when new dates in November were offered, Crown counsel refused to accept those dates, maintaining that she would not be ready in time.
[62] It is troubling that Crown counsel initially told the court that she would not vary the curfew condition because of the seriousness of the allegations and yet she could provide little information about steps that had been taken by the Crown to secure the complainant’s attendance at the preliminary inquiry, which was set eleven months earlier.
[63] In my opinion, the actions of the Crown do not reflect proper case management, nor do they suggest that the Crown took the case particularly seriously. The Crown was responsible for much of the delay in this case by violating its constitutional obligation to provide timely disclosure, by failing to diligently prepare the case for the complainant’s attendance at the preliminary inquiry, by failing to seek an adjournment at the earliest available opportunity, and by failing to accept the earliest available alternate date offered by the court on October 30, 2013.
[64] Accordingly, I find the delay between the preliminary inquiry set for November 12, 2013 and committal on June 9, 2014 is attributable to the Crown. Further, since I have concluded that a reasonable intake period for disclosure was two months, from August 10, 2012 to October 12, 2012, I find that the delay in disclosing the complainant’s statement between October 12, 2012 and November 30, 2012 is similarly attributable to the Crown. This amounts to a total of approximately eight and one-half months of delay attributable to the Crown.
(d) limits on institutional resources
[65] Institutional delay begins when the parties are ready for trial but the system cannot accommodate them. The government has a constitutional obligation to provide adequate resources to prevent unreasonable delay and lack of such resources cannot justify delay.
[66] The period between January 15, 2013 and November 12, 2013 (when dates for the preliminary inquiry were first set) and between August 28, 2014 and March 9, 2015 (when the trial was set) should be attributed to institutional delay, minus one month within each period to allow for preparation time, which should be counted as inherent time. The resulting delay for lack of institutional resources thus amounts to approximately fourteen and one-half months.
[67] When the complainant agreed to testify by video link on November 28, 2013, after the new dates had been set, the fact that counsel for the applicant was no longer able to proceed with the preliminary inquiry on that day because of other court commitments did not contribute to the delay.
[68] In Morin at para. 41, the Supreme Court held that counsel cannot be expected to devote their time exclusively to one case. More recently, in Godin at para. 23, the Court reiterated that defence counsel are not required to hold themselves in a state of perpetual availability.
[69] It is the Crown’s position that because the preliminary inquiry and the trial were set “with or without counsel,” the parties were not ready for trial, as counsel was not fully retained.
[70] The record is clear that at all times counsel for the applicant took steps to move the case forward. Counsel for the applicant was partially retained before the first appearance following his release on bail. The applicant and his counsel attended almost every court appearance.
[71] Counsel was fully retained on March 28, 2013, seven and one-half months before the preliminary inquiry and on December 17, 2014, almost three months before trial. In my view, no time should be allocated to inherent time requirements because counsel was not fully retained. None of the delays were incurred because counsel was not fully retained.
(e) other reasons for the delay
[72] There are no others reasons for the delay in this case.
Prejudice to the Accused
[73] Prejudice can be inferred from the overall delay. The longer the delay, the more likely such an inference will be drawn. In R. v. Brace, 2010 ONCA 689, 261 C.C.C. (3d) 455 at para. 20, our Court of Appeal held:
The Supreme Court has recognized that long delay, alone, has a detrimental effect on a fair trial. In R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, Cory J., for the majority, indicated at para. 69 (iv) that ‘[t]here is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time”.
[74] The applicant is 24 years old. While completing high school, he was employed on a full-time basis. At the time of his arrest, he had lived on his own for three years. The terms of his bail initially required him to live with his parents, which was a significant source of stress.
[75] At the time of his arrest, the applicant had been employed by a security company for four years. Two months before his arrest, he commenced part-time work on weekends with the security company in order to work full-time at a pest control company from Monday to Friday.
[76] In August 2013, the applicant was offered a full time position at the security company, which required night shifts and day shifts, as well as overtime work. This opportunity would have increased the applicant’s earnings significantly. Counsel sought a variation of bail to remove the curfew on three occasions. By the time the variation was granted on the third occasion, the posting had been filled.
[77] There is no suggestion that this charge has had an adverse impact on the applicant’s liberty interests or any discernible prejudice to his fair trial interests.
[78] There is some evidence that the charge of sexual assault has had an adverse impact on his security interests. In Morin at p. 786, the Supreme Court observed that the right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings.
[79] In Godin at para. 30, the Supreme Court described security of the person as the ability to be free from the stress and cloud of suspicion that accompanies a criminal charge. As Lauwers J.A. stated in R. v. Williamson, 2014 ONCA 598, 314 C.C.C. (3d) 156 at para. 57, “The stigma of being under a public cloud should not be lightly dismissed.”
[80] The delay to trial beyond the guidelines prolongs an accused’s shame and increases his or her anxiety. What was initially prejudice from being charged may become prejudice caused by institutional and Crown delay beyond the guidelines: R. v. Kovacs-Tatar (2004), 2004 42923 (ON CA), 73 O.R. (3d) 161, 192 C.C.C. (3d) 91 at para. 33.
The Balancing Process
[81] This was not a complex case. There has been a total delay of thirty-one months in bringing this matter to trial. Approximately eight and one-half months are attributable to the Crown and approximately fourteen and one-half months are attributable to institutional resources. None of the delay is attributable to the applicant. He attended seventeen court appearances because he wanted to ensure that his case was continuing to move forward. There is some prejudice resulting from the delay.
[82] Delay attributable to the Crown is generally viewed more seriously than that attributed to systemic factors because it is not beyond the control of the individual State actors who caused it: R. v. Taylor, 2013 ONCJ 138, O.J. No. 1266 at para. 39.
[83] In R. v. Yun (2005), 65 W.C.B. (2d) 192, 2005 13454 (Ont. S.C.) at para. 42, the court held:
… [T]he interests protected by s. 11(b) are affected in a fundamentally more unacceptable fashion when the police or Crown fail to do what they are expected to do and there is no acceptable excuse for the delay.
[84] In staying the proceedings in R. v. Panko, 2007 ONCJ 212, 155 C.R.R. (2d) 297 at para. 18, Trotter J. applied the same proposition:
… [T]he illegality of the delay in this case was not solely the result of a lack of institutional resources. This case was pushed over the line by Crown/police delay that was unnecessary and avoidable. In my view, this feature of the case makes the delay more serious. (See Regina v. McNeilly, [2005] O.J. No. 1438 (S.C.J.)) and tips the balance in favour of a finding that s. 11(b) was infringed.
[85] In all the circumstances, balancing the interests in this case weighs in favour of the applicant’s right to have a trial within a reasonable time over the societal interest in a trial on the merits.
Disposition
[86] There has been a violation of the right of the applicant to be tried within a reasonable time. Accordingly, the proceedings are stayed.
DUNNET J.
Released: February 10, 2015
CITATION: R. v. Mushfiq Mawla, 2015 ONSC 912
COURT FILE NO.: CR-14-40000445-0000
DATE: 20150210
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MUSHFIQ MAWLA
REASONS FOR JUDGMENT
DUNNET J.
Released: February 10, 2015