Introduction

[1] Jordan Daniel is charged with trafficking in heroin and possession of the proceeds of crime. He applied pursuant to s. 24(1) of the Charter for a stay of proceedings on the basis that his right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter had been violated.

[2] The offences are alleged to have occurred on September 3, 2013. His trial is scheduled to commence on April 25, 2016, and conclude on April 29, 2016.

Overview of the Case

[3] Mr. Daniel was arrested on September 3, 2013. It is alleged that he sold .06 grams of heroin to another man for $20. When he was arrested, he was in possession of $440, which is alleged to be the proceeds of crime.

[4] On September 4, 2013, Mr. Daniel was ordered released on a recognizance in the amount of $500 with one surety and conditions that he not possess any non-medically prescribed drugs or weapons, that he reside at an address approved of by his surety, and that he not attend the address where the alleged drug transaction occurred.

[5] As I indicated, Mr. Daniel’s trial is scheduled to commence on April 25, 2016 in the Superior Court of Justice. It is scheduled to take five days. The total delay between his arrest and the anticipated conclusion of his trial on April 29, 2016 will be 970 days or 2 years, 7 months, and 27 days.

[6] The Crown and defence counsel have charted all of the court dates in their material and I have read the transcripts of the proceedings from every date. I do not intend to refer to every court appearance. Counsel agree on the attribution of the delay between September 3, 2013 and November 26, 2014, and I agree with their assessment. However, the delay between November 26, 2014 and April 29, 2016, a period of 545 days, is in dispute.

[7] The matter was in the Ontario Court of Justice for 348 days. Of that time, 129 days were attributable to institutional delay. Mr. Daniel was committed for trial on August 13, 2014. He appeared before the Superior Court of Justice on September 24, 2014, had a judicial pre-trial and, on November 26, 2014, set a trial date of November 23, 2015.

[8] On June 29, 2015, the Crown sought an adjournment of the November 23 trial date due to the anticipated unavailability of a principal police witness. The adjournment was granted, and a new trial date of April 25, 2016 was set.

Section 11(b) Analytical Framework

[9] Every person charged with a criminal offence has the right to be tried within a reasonable time. This right is guaranteed by s. 11(b) of the Charter. Section 11 (b) protects both the individual charged and society, which itself has an interest in ensuring that criminal charges against people are promptly and fairly adjudicated.

[10] The analytic framework used to assess the reasonableness of the time that elapses between the date a person is charged and the completion of the trial was set out by the Supreme Court of Canada in R. v. Morin.[^1] A certain amount of delay is inevitable in every case. To determine how much delay is reasonable, the following factors must be considered:

the length of the delay;
waiver of time periods;
the reasons for the delay, including

a. inherent time requirements of the case,

b. actions of the accused person,

c. actions of the Crown,

d. limits on institutional resources, and

e. other reasons for delay; and

prejudice to the accused person.

[11] No one factor is determinative. It is not a matter of applying a mathematical formula. Rather, I am required to balance the interests that s. 11(b) is designed to protect against all of the factors that lead to the delay.

[12] The focus of the s. 11(b) analysis is on both Crown and institutional delay. The length of that delay is generally determined by deducting any defence, and neutral or inherent delay from the overall delay. The Supreme Court of Canada in Morin established guidelines of eight to ten months of acceptable Crown or institutional delay in the Ontario Court of Justice and a further six to eight months of Crown or institutional delay in the Superior Court of Justice. These are guidelines; not inflexible limitation periods.

[13] Mr. Daniel bears the onus of establishing on a balance of probabilities that his right protected by s. 11(b) has been violated.

Issues to be Determined

[14] The parties agree that the nearly 32-month delay from Mr. Daniel’s arrest to the anticipated end of his trial is sufficiently lengthy to warrant judicial scrutiny. They also agree that Mr. Daniel did not waive his right to a trial within a reasonable time at any point during the proceedings.

[15] The application, therefore, turns upon an examination of the reasons for the delay, an assessment of the prejudice suffered by Mr. Daniel as a result of the delay, and a balancing of the interests.

Reasons for the Delay

[16] Counsel agree on the amount and characterization of the delay for all of the proceedings before November 26, 2014. I agree with their assessment, which is as follows:

259 days – inherent delay

63 days – defence delay

128 days – institutional delay

[17] I have appended a chart to these reasons based on a chart prepared by Crown counsel setting out the characterization and attribution of delay between September 13, 2013 and April 29, 2016.

[18] Counsel do not agree on how the delay between November 26, 2014 and April 29, 2016 should be apportioned and characterized. My analysis will focus on this time frame.

November 26, 2014 – November 23, 2015

Setting of the First Trial Date to the First Trial Date

[19] Both counsel were prepared to set a trial date on November 26, 2014. Ms. Gendron was available for trial on January 5, 2015, but the court could not accommodate the matter until April 20, 2015. Ms. Gendron was not available that day. The next available court date was November 23, 2015, which was set.

[20] Ms. Gendron argued that the entire delay after January 5, 2015 when she was ready for trial is attributable to institutional and Crown delay. Although January 5, 2015 was only 40 days after Mr. Daniel’s appearance in Practice Court to set a date, Ms. Gendron argued that the case was a simple one, and notwithstanding that she intended to bring two Charter applications, she was prepared to do the trial on January 5, 2015.

[21] Institutional delay, however, is calculated from the date that both parties are ready for trial but the court cannot accommodate them.[^2]

[22] Ms. Benzakein argued that 40 days was insufficient time for defence counsel to prepare and file the necessary material for two Charter applications, for the Crown to prepare and file the necessary material in response, and prepare the case for trial. She submitted that sixty days was a more reasonable amount of time to accomplish these tasks.

[23] I agree with Ms. Benzakein. Forty days was not sufficient to properly prepare, serve, file and respond to a Charter application alleging breaches of ss. 8 and 9 within the time limits set in the Criminal Proceedings Rules of the Superior Court of Justice, and to prepare for the trial on the merits. Ms. Benzakein’s suggestion of sixty days is a more realistic estimate of the time required.

[24] In my view, the 61 days between November 26, 2014 and January 26, 2015 is properly allocated to inherent delay.

[25] The delay between January 26, 2015, when both parties were ready for trial, and November 23, 2015, the date the trial was set, is properly characterized as institutional delay. Although the date of April 20, 2015 was offered, Ms. Gendron was not available on that day.

[26] Ms. Benzakein submitted that half of the delay between April 20, 2015 and November 23, 2015 should be characterized as institutional delay and half as defence or neutral delay because of Ms. Gendron’s unavailability on April 20. As attractive as this compromise may seem, in my view, it does not accord with the Supreme Court of Canada’s decision in R. v. Godin [^3] that defence counsel are not required to hold themselves in a state of perpetual availability, but must be reasonably available and cooperative in scheduling trials. In my view, the 310-day delay between January 26, 2014 and November 23, 2015 is attributable to institutional delay.

November 23, 2015 – April 29, 2016

First Trial Date to Anticipated Conclusion of Trial

[27] This delay was caused by the Crown’s successful application on June 29, 2015 for an adjournment of the trial date. The basis for the adjournment request was the unavailability of the main police witness. Justice Quigley, who granted the adjournment, was advised that the police officer would likely be unavailable “due to some personal circumstances that are difficult to plan involving his spouse.” Ms. Gendron did not oppose the adjournment request in the circumstances.

[28] Ms. Gendron argued that this delay should be allocated as Crown delay. In granting the adjournment request, Justice Quigley noted the parties accepted that the delay lies at the feet of the Crown. Notwithstanding this, Ms. Benzakein argued that the reason for the adjournment was one of the vicissitudes of the criminal trial process, and the delay occasioned by it is part of the inherent time requirements of the case.

[29] The court is not bound by the concession made on June 29 by Ms. Benzakein before Justice Quigley that the delay caused by the adjournment request was Crown delay.[^4] In my view, this 158-day delay is properly characterized as inherent or neutral delay. It was a delay occasioned by an unforeseen event. It was not caused by a lack of institutional resources or the Crown’s failure to fulfill its obligations. The Crown did not wait until the trial date to seek the adjournment, which given the reason for it, would likely have been granted resulting in a longer delay. Rather, the Crown sought the adjournment five months in advance of the trial. Criminal trials are very human processes, and from time to time, unforeseen events occur, such as illnesses and family matters, for which no one party can be faulted.[^5]

[30] In summary, I attribute the delay during this time period as follows:

November 27, 2014 – January 26, 2015 – 61 days – inherent delay

January 27, 2015 – November 23, 2015 – 301 days – institutional delay

November 24, 2015 – April 29, 2016 – 158 days – inherent delay

Conclusion on Attributable Delay

[31] I have concluded that of the total 970-day delay, 481 days or nearly 16 months are properly attributable to the inherent time requirements of the case, 64 days or 2 months are attributable to defence delay, and 430 days or 14 months and 3 days are attributable to institutional delay. This falls short of the upper end of acceptable institutional delay of 18 months set out in Morin.

Prejudice

[32] The primary purpose of s. 11(b) is to protect the accused’s rights to security of the person, liberty and a fair trial. In Morin, Justice Sopinka described this protection more specifically at p. 786 as follows:

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. The right to liberty is protected by seeking to minimize exposure to the restriction on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

[33] The focus of my analysis of the prejudice suffered by Mr. Daniel must be on the prejudice arising from the delay and not on the prejudice arising from being arrested and charged with serious criminal offences.[^6]

[34] Mr. Daniel filed an affidavit on this application setting out how these outstanding charges have affected him. He is 24 years old and lives with his mother, grandmother and younger siblings. He has not told his family that he has been charged with these offences, which has caused him to feel isolated from his family.

[35] He is a third year journalism student at Humber College. He started the course just before he was arrested. According to Mr. Daniel, as a result of the outstanding charges, he has become less motivated at school, and less social. Mr. Daniel had not sought any medical help for his feelings of isolation or stress.

[36] I do not intend to minimize the stressful effect of being charged with serious criminal offences. It is real. However, the prejudice Mr. Daniel says he has suffered is not due to the delay, but is more accurately attributed to having been arrested and charged.

[37] Mr. Daniel was released on bail the day after he was arrested. As a condition of that bail, Mr. Daniel was not permitted to be near the Shell gas station where the offence is alleged to have occurred. This, according to Mr. Daniel, has had a negative impact on him and his family because it is the only store in his neighbourhood that is open 24 hours a day, seven days a week. It was an agreed fact that this was more of an inconvenience for Mr. Daniel, rather than the prejudicial effect of delay.

[38] There is no evidence that Mr. Daniel’s ability to make full answer and defence to these charges – i.e. his ability to lead evidence, cross-examine witnesses or raise defences – has been compromised by the delay itself.

[39] Ms. Gendron argued that the court can infer prejudice because Mr. Daniel has been under a cloud of suspicion for two and one-half years, and has been unable to clear his name throughout that time, which has caused him stress and anxiety. However, inferred prejudice is not deserving of great weight when Mr. Daniel has not been incarcerated pending his trial; is not subject to onerous bail conditions; has been able to continue his education; and his right to a fair trial has not been impaired as a result of the delay. [^7]

Balancing

[40] Although the primary purpose of s. 11(b) is to protect the rights of the accused person, it also engages the rights of the community, which has an interest in ensuring that those who break the law are dealt with according to law.[^8]

[41] In the final result, I have found that the total institutional delay was 14 months and 3 days, short of the 18 months suggested as an upper limit by the Supreme Court of Canada in Morin for a case that is to be tried in the Superior Court. Of course, the guidelines are not limitation periods, and the reasonableness of a delay is not to be determined by a mathematical formula. Rather, I am required to balance the factors set out in Morin with society’s interest in having criminal charges determined on their merits.

[42] Given that I have found that the total institutional delay does not exceed the 18-month guideline set out in Morin, and that I have found that any prejudice suffered by Mr. Daniel stems from the fact that he has been charged, rather than from the delay, I have concluded that Mr. Daniel has not established that his rights protected by s. 11(b) of the Charter have been violated, and his application is therefore dismissed.

[43] I wish to thank counsel for their helpful and focused written material and oral submissions.

Corrick J.

Released: February 29, 2016

ATTRIBUTION OF DELAY

DATES

TIME ELAPSED

CHARACTERIZATION OF DELAY

EXPLANATION

September 3, 2013 to February 5, 2014

156 days

Inherent - Neutral

Intake time in the Ontario Court of Justice, including the retention of counsel, the provision of disclosure and the conduct of pre-trials.

February 6 to March 5, 2014

28 days

Defence

Confirming instructions

March 6 to April 7, 2014

33 days

Inherent - Neutral

Time required for defence counsel to prepare for the preliminary inquiry.

April 8 to August 13, 2014

128 days

Institutional

Time that elapsed from the point when counsel were ready for the preliminary inquiry but the system was unable to accommodate them.

August 14 to October 22, 2014

70 days

Inherent - Neutral

Time to prepare indictment, have matter listed in the Superior Court, set and conduct a judicial pre-trial.

October 23 to November 26, 2014

35 days

Defence

Adjournment to obtain instructions.

November 27, 2014 to January 26, 2015

61 days

Inherent - Neutral

Time required for counsel to clear her schedule and prepare for trial, includes time required for the defence to prepare, serve and file Charter materials and for the Crown to notify witnesses.

January 27 to November 23, 2015

301 days

Institutional

Time that elapsed from the point that counsel were prepared for trial but the system was unable to accommodate them.

November 24, 2015 to April 29, 2016

158 days

Inherent - Neutral

Additional time required as a result of witness unavailability.

CITATION: R. v. Daniel, 2016 ONSC 1441

COURT FILE NO.: CR1490000599-0000

DATE: 20160229

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JORDAN DANIEL

RULING ON APPLICATION TO STAY PROCEEDINGS FOR DELAY

Corrick J.

Released: February 29, 2016

[^1]: 1992 89 (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1

[^2]: R. v. Morin, supra.

[^3]: 2009 SCC 26, [2009] 2 S.C.R. 3

[^4]: R. v. Tran 2012 ONCA 18 at para. 31

[^5]: R. v. Meisner, 2004 30221 (ON CA), [2004] O.J. No. 3812 (C.A.)

[^6]: R. v. Kovacs-Tatar, 2004 42923 (ON CA), [2004] O.J. No. 4756, 192 C.C.C. (3d) 91 (C.A.)

[^7]: R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No 5004, 191 C.C.C. (3d) 347 at para. 20

[^8]: R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449 at para. 44

R. v. Daniel, 2016 ONSC 1441

Case Summary

Introduction

Overview of the Case

Section 11(b) Analytical Framework

Issues to be Determined

Reasons for the Delay

November 26, 2014 – November 23, 2015

Setting of the First Trial Date to the First Trial Date

November 23, 2015 – April 29, 2016

First Trial Date to Anticipated Conclusion of Trial

Conclusion on Attributable Delay

Prejudice

Balancing

ATTRIBUTION OF DELAY

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1