CITATION: R. v. Ovid, 2016 ONSC 1772

COURT FILE NO.: 9-80/16

DATE: 20160311

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

SEAN ARRINDELL OVID

Chris de Sa and David Morlog, for the Crown

James Miglin and Marianne Salih, for the accused

HEARD: February 1-2, 2016

K.L. Campbell J.:

Pre-Trial Ruling

Application to Stay Proceedings Pursuant to

Sections 11(b) and 24(1) of the Charter of Rights

A. Overview

1The accused stands charged with possession of cocaine for the purpose of trafficking. The offence is alleged to have taken place in Toronto on March 11, 2013. An earlier trial ended in a mistrial when the jury could not reach a unanimous verdict in relation to this charge. The accused has renewed his application to stay the proceedings, arguing that his right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, has been violated. An earlier such application was dismissed by Mr. Justice B.P. O’Marra, who presided over the first trial of this charge. See R. v. Ovid, 2015 7529, [2015] O.J. No. 6299. The total period of delay in this case is now close to two years and eleven months. At the conclusion of the argument of this renewed application, I advised the parties that the application was dismissed and that I would subsequently provide reasons for my decision. These are those reasons.

B. Section 11(b) of the Charter of Rights

The Governing Analytical Framework

2The legal analysis that is required on applications under s. 11(b) of the Charter is well-established. Where an accused contends that he or she has not been tried within a reasonable time, the accused must establish the alleged violation of s. 11(b) of the Charter on the balance of probabilities. Of course, whether any delay is unreasonable is not simply a function of the passage of time, but includes a careful consideration of several constitutionally relevant factors. According to the leading decision in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, the following factors must all be taken into account in determining whether or not there has been a violation of s. 11(b) of the Charter:

(1) The length of the delay;

(2) Any waiver of time periods by the accused;

(3) The reasons for the delay, including: (a) the inherent time requirements of the case; (b) the conduct of the accused or delays attributable to the accused; (c) the conduct of the Crown or delays attributable to the Crown; (d) systemic or institutional delays; (e) any other reasons for delay; and

(4) Any prejudice to the accused.

3See also R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18; R. v. Florence, 2014 ONCA 443, 312 C.C.C. (3d) 165, at paras. 28-31.

4Once all of these relevant factors have been considered, the final stage of the analysis requires a balancing of the various individual and state interests that s. 11(b) of the Charter is designed to protect, against the factual background of the entire case, and an understanding of the total length of the delay and the various causes of that delay. Essentially, the court must balance the societal interest in seeing that persons charged with offences are brought to trial, against the interest of both society and the accused in the prompt adjudication of criminal cases. Before staying the charges, the court must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. See R. v. Morin, at pp. 788, 809-810; R. v. Godin, at paras. 18, 39-41; R. v. Williamson, 2014 ONCA 598, 314 C.C.C. (3d) 156, at paras. 58-68, leave granted, [2014] S.C.C.A. No. 438; R. v. Boateng, 2015 ONCA 857, 128 O.R. (3d) 372, at para. 21. This was the analytical framework expressly applied by O’Marra J. in his ruling, at paras. 4-5.

C. The Binding Effect of the Earlier Ruling by Justice O’Marra

5Defence counsel contends that the earlier s. 11(b) Charter ruling by O’Marra J. is not legally binding in relation to the present application, and that fresh consideration should be given to many of the issues determined by O’Marra J. In advancing this position, defence counsel argued that: (1) there has been a further passage of time after the decision of O’Marra J. which must be considered pursuant to the governing analysis under s. 11(b) of the Charter; and (2) there were a number of important analytical errors that were made by O’Marra J. in his consideration of the earlier application to stay the proceedings that render it in the “interests of justice” that the issues be considered anew.

6Section 653.1 of the Criminal Code, R.S.C. 1985, chap. C-46, provides as follows:

In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.

7Defence counsel argues that this provision does not make the earlier ruling of O’Marra J. binding upon the parties in this case as s. 653.1 of the Criminal Code relates primarily to earlier evidentiary rulings. I disagree with the contention that s. 653.1 of the Code does not apply to earlier rulings concerning applications under s. 11(b) of the Charter.

8In my view, the provisions of s. 653.1 of the Criminal Code have direct application in the circumstances of the present case. It may be that, as a practical matter, many rulings made prior to the declaration of a mistrial, which are subsequently “binding on the parties in any new trial,” will be evidentiary rulings. However, on the plain language of the section, the operation of s. 653.1 of the Code is clearly not limited to evidentiary rulings. The section has a much broader application. The provision uses disjunctive language to expressly bind the parties to earlier rulings, prior to a mistrial, that relate to “the disclosure, or admissibility of evidence, or the Canadian Charter of Rights and Freedoms,” provided the earlier ruling was made (or could have been made) before “evidence on the merits” of the case is presented. Of course, applications to stay proceedings pursuant to ss. 11(b) and 24(1) of the Charter are often made – and can always be made – before the stage at which the evidence on the merits is presented.

9That is not to say that subsequent applications, at any new trial, alleging a violation of s. 11(b) of the Charter, will not raise further issues for consideration. For example, such applications are likely to require an assessment of the impact of, and reasons for, any further periods of delay following the mistrial. Such applications are also likely to require a re-assessment and re-balancing of all of the circumstances of the case, given the events and proceedings following upon the declaration of a mistrial. However, the earlier s. 11(b) Charter ruling of the trial judge, insofar as it reviewed and assessed the various reasons for delay, attributed periods of delay to certain recognized categories, and assessed the degree of prejudice suffered by the accused – up to the point in time covered by the earlier ruling – is binding upon the parties unless the judge presiding over the new trial is satisfied that it “would not be in the interests of justice.”

10This very issue was addressed by Broad J. in R. v Hayhow, 2015 ONSC 245, [2015] O.J. No. 2403. The accused in that case had been charged with various fraud-related offences. At her first trial, she brought a motion before the trial judge, Hambly J., to stay the proceedings against her pursuant to ss. 11(b) and 24(1) of the Charter. That application was dismissed. However, the proceedings before Hambly J. ended in a mistrial. At the outset of the subsequent trial proceedings, before Broad J., the accused sought to revisit that earlier s. 11(b) Charter ruling. In considering the potential application of s. 653.1 of the Criminal Code, Broad J. concluded, at paras. 32-33, that while it was “self-evident” that any such subsequent application under s. 11(b) of the Charter would “necessarily involve” consideration of any further delay and would “invite a reconsideration” of whether the accused’s right to be tried within a reasonable time has been denied, the language in s. 653.1 of the Code did “have the effect of capturing a ruling on an application based on section 11(b) within its ambit,” even if the section seemed “primarily directed towards evidentiary rulings.” More specifically, Broad J. stated, at para. 36:

Since a mistrial will, in most cases, result in at least some additional delay, it would ordinarily be necessary and appropriate to consider certain of the factors identified in Godin afresh in light of the changed circumstances, including the new cumulative length of the delay to the commencement of the new trial, the reasons for the mistrial and the delay occasioned by it, any delay in scheduling the new trial and the reasons for it, as well as a fresh balancing of the various factors in light of the new cumulative delay. However, in my view, there will be findings within an earlier section 11(b) ruling which need not be revisited following a mistrial unless it is found to be in the interests of justice to do so, utilizing the formulation in R. v. N.J.S. [2013 BCSC 2512]. These would include the evaluation of the reasons for the delay up to the date set for the original trial, and the nature and extent of the prejudice suffered by the accused by reason of the delay to that time.

11I agree with this analysis. Accordingly, on this renewed application by the accused I must consider the Morin/Godin factors afresh in light of the changed circumstances of this case, including the new total cumulative length of the delay, the reasons for the mistrial, the length of the delay occasioned by it, the delay in scheduling the new trial, and the reasons for that delay. This will involve, of course, a fresh balancing of the various constitutionally relevant factors in light of the new cumulative total period of delay. At the same time, however, unless it appears to be in the “interests of justice,” on this renewed application by the accused there are a number of issues determined by O’Marra J. on the earlier s. 11(b) Charter application that will not be re-visited. For example, the conclusions drawn by O’Marra J. regarding the reasons for the delays prior to the trial over which he presided, his assessment and allocation of those same periods of delay, and the nature and extent of the prejudice suffered by the accused by reason of those periods of delay.

12I note that this results in no unfairness to the accused in the circumstances of this particular case. The accused has already expressly agreed, through counsel, to be bound by the rulings made by O’Marra J. Indeed, during the court appearance on November 3, 2015, before O’Marra J., when the new trial of this matter was scheduled to commence on February 1, 2016, defence counsel for the accused expressly confirmed that “counsel have agreed … that the pre-trial rulings” that had been made “will bind” the parties “for the second trial.” It is not unfair to the accused to require him to keep his word on this issue by preventing him from reneging on his express agreement to be bound by the earlier ruling of O’Marra J. in relation to his s. 11(b) Charter application.

D. The Ruling by Justice O’Marra

1. The Proceedings in the Ontario Court of Justice

a. Introduction

13The total period of delay in this case in the proceedings in the Ontario Court of Justice was approximately one year. The accused was arrested at the time of the alleged offence on March 11, 2013, and he was committed for trial at the conclusion of the preliminary inquiry on March 12, 2014. The first appearance by the accused in the Superior Court of Justice was approximately six weeks later on April 30, 2014.

b. The Neutral Intake Period – The Judicial Pre-Trial Conference

14The accused raises no issue with respect to the period of approximately the first three months of this time in the Ontario Court of Justice, as the accused was retaining counsel and arranging for judicial interim release, while the Crown was providing disclosure to the accused, and while the parties were attending for a judicial pre-trial hearing. Accordingly, this time period was consumed with the usual neutral “intake” functions that take place at the outset of almost all cases and matters that are part of the inherent time requirements of the case.

c. Scheduling the Preliminary Inquiry

15On June 18, 2013, following the conclusion of the judicial pre-trial hearing, the preliminary inquiry was scheduled to take place approximately eight months later, on February 14 and 21, 2014. When these dates were set, defence counsel noted that these were the “first available date[s]” offered by the trial coordinator, while defence counsel was both “prepared” and “available” to conduct the preliminary inquiry as early as June 24, 2013.

16In his review of these proceedings, O’Marra J. concluded, in his ruling at para. 10, that “30 days is a reasonable and fair period of time” to allow for the parties to prepare their respective cases for the upcoming preliminary inquiry proceedings. Accordingly, he attributed 30 days to the inherent time requirements of the case, and concluded that the remaining period of approximately seven months was institutional delay.

17Defence counsel argues that O’Marra J. should have taken defence counsel at his word that the defence could have been prepared and available as early as June 24, 2015. In my view, this is precisely the kind of complaint that is prevented by the operation of s. 653.1 of the Criminal Code and the express agreement of the parties. As the judge presiding over the new trial in this case, I am not sitting on appeal from the decision of O’Marra J., and reviewing his earlier s. 11(b) Charter ruling in order to detect this type of alleged error.

18In any event, the re-litigation of this issue could have no possible impact upon the ultimate s. 11(b) analysis in this case, and is inconsequential. Even if defence counsel were correct on this small point, an issue which I do not resolve, the only consequence would be that the total period of systemic delay in the Ontario Court of Justice would increase by approximately three weeks. However, even if the systemic delay in the Ontario Court of Justice was assessed as totaling seven months and three weeks, instead of merely seven months, it would still be less than the “administrative guideline” of eight to ten months prescribed by the Supreme Court of Canada for permissible systemic delay in the Ontario Court of Justice. See R. v. Morin, at pp. 796-799; R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, at para. 53-55; R. v. Chatwell (1998), 1998 3560 (ON CA), 122 C.C.C. (3d) 162 (Ont.C.A.) at pp. 165-167, appeal quashed, 1998 784 (SCC), [1998] 1 S.C.R. 1207; R. v. S.(L.) (1999), 1999 3002 (ON CA), 133 C.C.C. (3d) 493 (Ont.C.A.) at p. 498; R. v. Godin, at para. 5.

d. The Adjournment of the Preliminary Inquiry

19The preliminary inquiry was not completed within the two day period originally scheduled. On the second scheduled date, February 21, 2014, the matter was adjourned, at the request of the Crown, when a police officer, who had been expected to testify that day, was not able to attend court due to a death in his family. The case was adjourned to March 12, 2014, when the preliminary inquiry was completed, and the accused was committed for trial.

20Before O’Marra J., defence counsel argued that this three week period of delay should be attributed to the Crown. O’Marra J. disagreed and held, at para. 12 of his ruling, that this period of delay should be viewed as “neutral.” O’Marra J. noted in this regard that the “administration of justice is a human process” and, on occasion, “lawyers, judges, witnesses or jurors are unable to attend court for entirely valid and often unexpected reasons” such as “[s]erious illness” or a “death in the family,” and not from any “lack of due diligence.”

21On the renewed s. 11(b) Charter application, defence counsel challenges this characterization of this period of delay, and maintains that it should be viewed as Crown delay. Again, in my opinion this is the kind of complaint that is prevented by the operation of s. 653.1 of the Criminal Code and the express agreement of the parties. As I have indicated, I am not sitting on appeal from the earlier ruling of O’Marra J. Nor is it in the “interests of justice” within the meaning of s. 653.1 of the Code for me to revisit and reconsider each and every complaint that the parties may have about the nature of that earlier ruling.

22In any event, the re-argument of this issue, involving but three weeks of delay, could have no possible impact upon the ultimate analysis under s. 11(b) of the Charter.

23Further, without finally resolving the question, I am inclined to agree with O’Marra J. that a death in the family of a witness is, to use the language of the Court of Appeal for Ontario in R. v. Meisner (2004), 2004 30221 (ON CA), 190 O.A.C. 24, 7 M.V.R. (5th) 1, at para. 3, one of those unexpected events that “happens from time to time in the criminal process for which no one can be faulted and which almost inevitably requires an adjournment and rescheduling.” See also R. v. MacDougall, at paras. 45-47.

24It is important to appreciate that this was not a situation where the Crown sought an adjournment simply to suit the scheduling availability and convenience of a police officer witness. Delays caused by such adjournments would properly be attributed to the Crown. See R. v. Morin, at p. 794; R. v. Smith, 1989 12 (SCC), [1989] 2 S.C.R. 1120, at pp. 1125, 1134-1135. This was an entirely unexpected event that, understandably, had to be accommodated. As O’Marra J. aptly observed, the administration of criminal justice remains a “human process” where unanticipated adjournments for reasons of compassion must occasionally play a role.

2. The Proceedings in the Ontario Superior Court of Justice

a. Introduction

25The total period of delay in this case in the proceedings in the Ontario Superior Court of Justice is approximately one year and nine months. The accused first appeared in the Superior Court on April 30, 2014, and his second trial started on February 1, 2016, with the application to stay the proceedings pursuant to ss. 11(b) and 24(1) of the Charter. In his earlier ruling, O’Marra J. considered the reasonableness of the overall time period between April 30, 2014 and October 6, 2015.

b. The First Scheduled Judicial Pre-Trial Conference

26On April 30, 2014 a judicial pre-trial hearing was scheduled to take place on May 14, 2014. However, as no judge was available on that date, the judicial pre-trial was re-scheduled for June 4, 2014. In his ruling at para. 13, O’Marra J. categorized that period of delay of approximately three weeks as institutional delay. No complaint is made about this conclusion.

c. Scheduling the First Trial Date

27On June 4, 2014, after the judicial pre-trial conference, a trial date was set. Estimating an eight day trial, the parties agreed to set the trial date of March 23, 2015. During this brief court appearance, defence counsel noted that “the first date available to the defence” was July 14, 2014.

28Defence counsel argued that the delay following this available date of July 14, 2014 was institutional delay. O’Marra J. disagreed. After carefully considering the nature of the case, and the complexity of the various pre-trial motions, O’Marra J. concluded, at para. 21 of his ruling, that a period of 60 days was a “reasonable and fair” period of time to consider part of the inherent time requirements of the case as necessary preparation time for the parties. Accordingly, O’Marra J. concluded that the remaining period of time, approximately seven months and three weeks, between August 4, 2014, when the parties would have been prepared and available to conduct the trial proceedings, and March 23, 2015, when the trial proceedings were scheduled to commence, was a period of institutional delay.

29Significantly, in reaching his conclusion regarding the amount of preparation time that was required in this case, O’Marra J. observed, at paras. 17-18 of his ruling, that the Crown’s case hinged on the admissibility of the drugs and related items seized by the police during the execution of a telewarrant, which was premised upon an Information to Obtain (ITO) that relied significantly upon information from a confidential informant. As O’Marra J. observed, this significantly increased the complexity of the case given that on the pre-trial application under ss. 8 and 24(2) of the Charter pursuant to R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1461, the following steps were thereafter engaged:

• The defence sought further particulars and information from the ITO.

• The defence sought leave to cross-examine the deponent on the ITO.

• The Crown provided further information to the defence while at the same time trying to preserve confidential informant privilege.

• The Crown resorted to the “step 6” procedure outlined in Garofoli by asking the court to review the original, unredacted ITO in support of the telewarrant. This step included the court receiving sealed information from the Crown and preparing a judicial summary for use by the defence. This process routinely involves the exchange of several draft versions of the judicial summary between the court and the Crown.

• The finalized version of the judicial summary was ultimately provided to defence counsel.

• The parties made submissions on all aspects of the Garofoli application and the court needed time to consider and render a ruling.

30The Garofoli application and the related coincident proceedings were not the only pre-trial matters that had to be dealt with as part of the trial proceedings in this case, which ultimately consumed three weeks of court-time, not the originally estimated eight days.

31Again, defence counsel argues that O’Marra J. should have proceeded on the assumption that defence counsel was available, and would have been prepared to proceed to trial, within five weeks of the set date, and should not have allocated eight weeks (60 days) to preparation time. As I have already indicated, this is the kind of complaint that is prohibited by the operation of s. 653.1 of the Criminal Code and the express agreement of the parties. However, even if I were permitted to review this type of decision as if sitting on appeal, I would agree with O’Marra J. on this issue. It is important to recall that in the calculation of systemic delay, the court must consider not only the scheduling “availability” of counsel, but also the time that counsel will need to properly prepare for the pending litigation. See R. v. Lahiry, 2011 ONSC 6780, 108 O.R. (3d) 187, at paras. 25-37; R. v. M.(N.N.) (2006), 2006 14957 (ON CA), 209 O.A.C. 331, 209 C.C.C. (3d) 436 (C.A.), at paras. 28-29, 90; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at paras. 30, 32; R. v. Mahmood, 2012 ONSC 6290, 271 C.R.R. (2d) 94, at paras. 74-76.

32In my view it was perfectly reasonable for O’Marra J. to conclude that it would have taken approximately two months for counsel in this case to be both available and prepared to conduct the trial proceedings in this case. Further, O’Marra J. accurately observed that the resulting period of systemic delay, of approximately seven months and three weeks, was within the established administrative guideline of six to eight months recognized by the Supreme Court of Canada. See R. v. Morin, at pp. 796-799.

33I observe in passing that, again, the resolution of this particular issue is of little, if any, consequence in the final analysis. Even if, contrary to my conclusion, defence counsel was correct in advancing this argument, and successful in re-litigating this issue, it would only result in an increase of three weeks in the period of systemic delay experienced in the Superior Court. While this would push the period of systemic delay to eight and a half months, this is only slightly beyond the established administrative guidelines for such delay in this court.

d. No Available Courtroom – Scheduling the Second Trial Date

34Unfortunately, in late March of 2015, when the trial was scheduled to take place, there was no court space available, and the trial could not be accommodated. Accordingly, on March 25, 2015, a new trial date was scheduled for October 5, 2015. During the course of this appearance, defence counsel noted that this was a date that normally would have been reserved for an accused who was “in custody,” and was the “first available date” that was offered by the court. Further, defence counsel noted that he was available to conduct the trial “at any time” prior to that scheduled date.

35In his consideration of this period of delay, O’Marra J. concluded, at para. 22 of his ruling, that this entire period of nearly six and a half months was attributable to institutional delay. O’Marra J. noted, however, that an “in custody date” was secured even though the accused was on bail, and this indicated that the court and the Crown “made the new date a priority.” See R. v. M.(R.) (2003), 2003 50092 (ON CA), 178 O.A.C. 243, 180 C.C.C. (3d) 49 (C.A.), at paras. 4, 9. No complaint is made by defence counsel in connection with this assessment of this period of delay.

e. Total Systemic Delay in the Superior Court of Justice

36O’Marra J. ultimately concluded, at para. 22 of his ruling, that there was a total of approximately 15 months of systemic delay in the Superior Court in this case before the trial that commenced on October 5, 2015. This period included: (1) the three week period between May 14 and June 4, 2014 when no judge was available for the initially scheduled judicial pre-trial conference; (2) the period of seven months and three weeks pending the scheduled March 23, 2015 trial date; and (3) the period of six and a half months pending the start of the October 5, 2015 trial. Of course, this total period of time is nearly twice the range of six to eight months of permissible systemic delay in the Superior Court.

37As O’Marra J. accurately observed, at para. 23 of his ruling, this does not necessarily mean that there has been a violation of s. 11(b) of the Charter. These guidelines are not fixed and inflexible limitation periods or arbitrary ceilings on the time within which an accused must be brought to trial. Accordingly, even in cases, such as the present one, where the period of systemic delay exceeds the recognized guidelines, this does not automatically result in a violation of s. 11(b) of the Charter, and a stay of proceedings. However, an unduly lengthy period of systemic delay will certainly weigh against the Crown in the overall assessment of the reasonableness of the total delay in the case. See R. v. Morin, at pp. 794-800; R. v. Godin, at para. 5; R. v. Chatwell, at para. 11; R. v. Qureshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453, 27 C.R. (6th) 142 (Ont.C.A.), at para. 13(d); R. v. Kovacs-Tatar (2004), 2004 42923 (ON CA), 192 C.C.C. (3d) 91 (Ont.C.A.), at paras. 19, 27-30, 51-52; R. v. R.(T.) (2005), 2005 18709 (ON CA), 75 O.R. (3d) 645, 197 C.C.C. (3d) 14 (C.A.), at para. 34; R. v. Vitanza, 2007 ONCA 753, [2007] O.J. No. 4257, at para. 4; R. v. Barkho, 2016 ONCA 62, [2016] O.J. No. 311, at para. 12.

3. Prejudice to the Accused

38In assessing the prejudice suffered by the accused, O’Marra J. noted, at para. 26 of his ruling, that the accused claimed that he had suffered “both inferred and actual prejudice” by the delays in this case, especially given that he had spent time in pre-trial custody and been subject to “stringent house arrest” terms when on bail.

39The evidence establishes the following judicial interim release history regarding the accused during the time period pending his trial on the present charge:

• The accused was arrested on the present charge on March 11, 2013. Thereafter he remained in custody for a period of eight days until he was released on bail.

• The accused was released on March 21, 2013, after entering into a recognizance in the amount of $10,000 with one named surety, his mother, and upon a number of conditions, including: (1) reside with his mother at her address; and (2) remain under “house arrest” in this residence except when in the presence of his mother, or when going to and from work. The accused remained at large on this bail order for a period of nearly seven months between March 21 and October 15, 2013.

• On October 15, 2013 the accused was arrested on other charges, namely, two counts of failing to comply with his recognizance and one count of the unlawful possession of marihuana. The accused remained in custody on these new charges until November 5, 2013.

• On November 5, 2013, the initial bail order was cancelled pursuant to an order made under s. 524 of the Criminal Code in light of the new charges. Further, it appears that a new judicial interim release order was made with respect to all of the pending charges against the accused, both the old and the new charges. This order was similar to the original order made on March 21, 2013, in that it required the accused to enter into a recognizance in the amount of $10,000 (but without any named surety), and upon a number of conditions, including: (1) reside with his mother at her address, or some other approved location; and (2) remain in his residence except when in the presence of his surety or his mother, or when travelling directly to and from work (provided he contacts a named police officer in advance).

• The accused did not, in fact, enter into a recognizance on these terms, but rather remained in custody on all charges for the four month period between November 5, 2013 and March 5, 2014.

• On March 5, 2014, the accused was released on all charges (old and new) after entering into a recognizance in the amount of $2,000, with one named surety, his mother, and upon a number of conditions, including: (1) reside with his mother at her address or an address approved by his surety; and (2) remain in this residence except when in the presence of his mother/surety, or when travelling directly to and from work (provided he contacts a named police officer in advance). While the new charges were stayed by the Crown on March 10, 2015, the accused remained at large on this recognizance for nearly 13 months, until March 30, 2015.

• On March 30, 2015, the accused entered into a new recognizance in the amount of $2,000, with one named surety, his mother, and upon a number of conditions, including: (1) reside with his mother at her address or an address approved by his surety; (2) obey a “curfew” in his residence between the hours of 11:00 p.m. and 4:30 a.m. unless in the direct presence of his surety.

40In relation to this issue, O’Marra J. concluded, at paras. 27-28, that given the serious nature of the charges, it was “not surprising” that there were “stringent terms of bail” imposed on the accused “when he was initially released eight days after his arrest.” More significantly, O’Marra J. concluded that the “majority” of the 141 days that the accused spent in custody, between his subsequent arrest (on October 15, 2013), on new charges of failing to comply with a recognizance and possession of marihuana, and his eventual release upon entering into a new recognizance (on March 5, 2014), was “triggered by new charges alleged to have occurred while he was on bail for the current charges.” O’Marra J. found that, based on the record, he could not attribute this time in custody, after the application brought by the Crown pursuant to s. 524 of the Criminal Code on November 5, 2013, solely to the current charges, as the outstanding bail was cancelled “because there were new criminal allegations.” Having carefully reviewed that same record, I can only conclude that the record fully supports this conclusion. Simply put, it was the new charges that resulted in the detention of the accused, not the previous charges.

41In his consideration of the issue of prejudice, O’Marra J. noted, at para 29, that there was no allegation that the passage of time in this case has in any way prejudiced the “fair trial interests” of the accused.

4. The Final Balancing of Interests

42With respect to the final balancing of interests, O’Marra J. concluded at paras. 30-31 of his ruling, that the accused “sustained some prejudice to his security interests” but that this prejudice “was not significantly based on any delay in the case.” Further, he concluded that the “substantial interest that society has in seeing that serious drug offences” such as that alleged against the accused “are tried on their merits” outweighs the joint interests of the accused and society in a “more prompt trial.”

E. The Fresh Analysis Under s. 11(b) of the Charter

1. The Time Period After the s. 11(b) Charter Ruling by O’Marra J.

43The trial before O’Marra J. commenced on October 5, 2015. At that time, the accused faced an indictment that charged him with two counts of possession of cocaine for the purposes of trafficking, one count of possession of marihuana for the purpose of trafficking, and one count of possession of the proceeds of crime.

44The trial began with the application by the accused to stay the proceedings based upon an alleged violation of s. 11(b) of the Charter. After two days of argument, O’Marra J. dismissed the application, providing his written reasons on this application subsequently. Thereafter, O’Marra J. heard the application by the accused, pursuant to R. v. Garofoli, ultimately seeking the exclusion of the evidence, pursuant to ss. 8 and 24(2) of the Charter, obtained by the police upon the execution of the telewarrant on March 11, 2013. Ultimately, O’Marra J. dismissed the application, ruling that the evidence was admissible. He subsequently provided written reasons explaining this decision. See R. v. Ovid, 2015 ONSC 6563, [2015] O.J. No. 5707.

45Once all of the pre-trial issues were resolved, the accused was tried by a jury. The trial lasted until the evening of October 26, 2015, at which point, the jury delivered their verdict in relation to the counts of the indictment on which they were unanimous. O’Marra J. then declared a mistrial on the remaining counts on which the jury was unable to reach a unanimous verdict. The Crown then sought a brief adjournment to consider its position regarding the charge currently before the court. Accordingly, the trial of this matter before O’Marra J. spanned a total of more than three weeks.

46After the Crown determined that it would continue the prosecution in relation to the offence now before the court, on November 3, 2015, the re-trial was scheduled to commence on February 1, 2016. During the course of this appearance, defence counsel expressed his immediate availability, and counsel agreed that the first available “in custody” date that was offered by the court was January 18, 2016, but the Crown was unavailable. In the result the matter was scheduled to commence on February 1, 2016, anticipating a jury trial of approximately seven to ten days duration.

47This trial started on February 1, 2016, with this application to stay the proceedings pursuant to ss. 11(b) and 24(1) of the Charter.

2. Analysis of the Further Period of Delay Following the Section 11(b) Charter Ruling

48The time period of approximately three weeks between the start of the trial proceedings before O’Marra J. on October 5, 2015, and the conclusion of the trial with a partial verdict and mistrial order on October 26, 2015, was clearly part of the inherent time requirements of this case. No one has suggested otherwise. Further, the fact that the jury was unable to reach a unanimous verdict in relation to the charge of possession of cocaine for the purpose of trafficking made the declaration of a mistrial an inevitable result.

49Defence counsel fairly conceded that the time period of approximately two months and three weeks, between the declaration of the mistrial as a result of the “hung” jury (October 26, 2015) and the first available “in custody” new trial date (January 18, 2016), is part of the inherent time requirements of this case.

50This position is supported by the jurisprudence considering the setting of new trial dates following the declaration of a mistrial. See R. v. W.B. (2000), 2000 5750 (ON CA), 133 O.A.C. 3, 145 C.C.C. (3d) 498 (C.A.), at para. 61; R. v. Satkunananthan (2001), 2001 24061 (ON CA), 143 O.A.C. 1, 152 C.C.C. (3d) 321 (C.A.), at para. 55; R. v. Brace, 2010 ONCA 689, 104 O.R. (3d) 32, at paras. 14-15. As these authorities have recognized, in such circumstances, some additional time to schedule another trial is necessary as part of the inherent time requirements of the case. However, in these circumstances, the Crown is obliged to take all necessary steps to schedule the retrial “without further delay.” Accordingly, only some “short period” of further delay is acceptable as inherently required.

51I accept the position advanced by defence counsel that this period of approximately two months and three weeks should be viewed as part of the inherent requirements of the case. It was a relatively short period of further delay to permit the Crown to assess its position regarding the potential retrial, and to allow the parties to “regroup” and prepare for that retrial. It also acknowledges the reality that the necessary further court time for the retrial is almost never going to be immediately available.

52I also accept the position advanced by defence counsel that the further period of approximately two weeks, between the first offered trial date of January 18, 2016, and the selected trial date of February 1, 2016, should be viewed as Crown delay, given that this period of delay resulted only as a result of the unavailability of Crown counsel on the earlier date.

3. Prejudice to the Accused

53With respect to the issue of prejudice, during this further period of time the accused was at large and subject to a judicial interim release order that required him to reside at an approved location, and observe a curfew within his residence between the hours of 11:00 p.m. and 4:30 a.m., seven days a week, unless in the presence of his mother/surety. These ongoing restrictions on his liberty are, of course, in addition to the prejudice recognized by O’Marra J. in his ruling, at paras. 27-28, which included the short time he spent in custody in connection with the present charge and the fact that his liberty was governed by a variety of judicial interim release orders.

54Further, I am prepared to infer some additional prejudice to the accused based simply upon the extent of the total cumulative delay in this case, of nearly two years and 11 months. There is no legal presumption of prejudice to any accused simply by virtue of the passage of time. That issue was resolved by the Supreme Court of Canada in R. v. Morin, per Sopinka J. at pp. 788-789, 798, 801-803, 807-808; per McLachlin J. at pp. 811-813; per Lamer C.J.C., dissenting, at pp. 777-779. However, prejudice to the accused may be inferred, as a matter of fact, in any given case based upon the passage of time. Moreover, as a matter of common sense, the longer the period of delay, the more likely such inference of prejudice will be drawn. In cases involving very long delays, such inferences are virtually inevitable. See R. v. Godin, at paras. 30-31; R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at paras. 27-29. As I have indicated, given the overall delay of nearly two years and 11 months in the present case, it is only reasonable to infer that the accused has suffered some prejudice to his “security of the person” interests as a result of this delay. While there is no evidence of this fact, it seems likely that having the current charge pending and “hanging over his head” for that period of time caused the accused a certain degree of ongoing stress, anxiety and concern.

55With respect to the “fair trial interests” of the accused, the delay in this case may actually have enured to the benefit of the accused in terms of his ability to make full answer and defence in relation to the remaining charge against him. During the earlier trial proceedings before O’Marra J. a defence witness, Nigel Williams, was missing and not available to testify. Subsequently, however, Mr. Williams was located and is now under subpoena to testify on behalf of the defence.¹ In any event, there is no evidence that supports the notion that the fair trial interests of the accused have been in any way compromised by the delays in this case. Of course, usually deteriorating memories over time impact negatively upon the Crown’s ability to establish the alleged guilt of the accused beyond a reasonable doubt. I decline to infer, in the absence of any supporting evidence, that the accused suffered any prejudice to his fair trial interests in the particular circumstances of this case.

4. The Final Balancing Assessment

56It has taken a long time to bring this case to trial – close to two years and 11 months. This overall period of delay requires a careful review and analysis. A significant portion of this overall time period is properly attributed to systemic delay (approximately seven months in the Ontario Court of Justice and approximately 15 months in the Superior Court of Justice). The systemic delay in the Superior Court is nearly double the established administrative guideline for such delay. This must weigh heavily in the balance.

57As I have noted, O’Marra J. conducted a careful review of the reasons underlying the great majority of that overall period of delay, and concluded that there had been no violation of s. 11(b) of the Charter in all of the circumstances. The parties are bound by that decision, both by the operation of s. 653.1 of the Criminal Code and by their express agreement to be bound by that decision. Moreover, I am not convinced that the “interests of justice” require me to revisit and/or revise any aspect of that earlier ruling by O’Marra J.

58Nevertheless, given the subsequent declaration of a mistrial, and the further period of delay in this case, the basic contention by defence counsel, that there has been a violation of s. 11(b) of the Charter as the accused has not been brought to trial within a reasonable time, must be considered anew in light of all of the circumstances of this case.

59There is no denying the fact that the alleged offence of possession of cocaine for the purpose of trafficking is a very serious offence, and brings a great public and societal interest in a trial on the merits of the allegation. In the present case, it is alleged that the accused was in possession of significant quantities of crack and powder cocaine for the purposes of trafficking. As the courts have often observed, cocaine is an “extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.” See R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) at para. 8; R. v. Daya, 2007 ONCA 693, 227 C.C.C. (3d) 367, at para. 18; R. v. Harris, [2008] O.J. No. 1976 (S.C.J.), at paras. 21-22; R. v. Richardson, [2009] O.J. No. 3887 (S.C.J.), at paras. 59-60; R. v. Persaud, [2009] O.J. No. 1798 (S.C.J.), at paras. 14-15. As Sopinka J. expressly noted in R. v. Morin, at p. 787, “[a]s the seriousness of the offence increases so does the societal demand that the accused be brought to trial.” See also R. v. Seegmiller (2004), 2004 46219 (ON CA), 192 O.A.C. 320, 191 C.C.C. (3d) 347 (C.A.), at paras. 21-25.

60At the same time, there is no question that the gravity of the alleged offence is but one factor that must be considered, and it will not by itself justify what would otherwise be an unreasonable delay. See R. v. Kporwodu (2005), 2005 11389 (ON CA), 75 O.R. (3d) 190, 195 C.C.C. (3d) 501 (C.A.), at paras. 189-194; R. v. Thomson, 2009 ONCA 771, 248 C.C.C. (3d) 477, at para. 24.

61As both O’Marra J. and I have concluded, the accused has suffered some prejudice by virtue of the overall delay in this case, to both his liberty and security of the person interests. He has spent a short period of time in pre-trial detention as a result of his current charge, and he has been on various forms of judicial interim release for a significant time. This prejudice is not insignificant. See R. v. Steele, at paras. 27-29; R. v. Ralph, 2014 ONCA 3, 313 O.A.C. 384, at para. 16; R. v. Williamson, at paras. 54-57. At the same time, however, the accused has suffered no discernible prejudice to his fair trial interests as a result of delay. Indeed, the final period of delay in this case following the declaration of a mistrial appears to have aided the accused in his defence as a previously missing defence witness was found in that intervening period.

62In the final analysis, balancing the societal interest in seeing that persons charged with serious drug offences are brought to trial, against the interest of both society and the accused in the reasonably prompt adjudication of criminal cases, I am not satisfied that, in all of the circumstances of this case, the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial on the merits of this charge. The overall delay in this case (including the total period of systemic delay) is not too great, nor is the prejudice to the accused of such a degree, that I am satisfied that there has been a violation the accused’s right to be tried within a reasonable time. In my view, the accused has simply not established a breach of his constitutional right guaranteed by s. 11(b) of the Charter. See R. v. Morin, at pp. 788, 809-810; R. v. Godin, at paras. 18, 39-41; R. v. Williamson, at paras. 58-68, R. v. Boateng, at para. 21.

F. Conclusion

63Accordingly, as I have earlier advised the parties, the application brought on behalf of the accused to stay these proceedings must be dismissed.

Kenneth L. Campbell J.

Footnotes

1. 1While the subsequent events of the trial proceedings in this case play no role in my decision in relation to the s. 11(b) Charter application, I observe only in passing that, in fact, Mr. Williams was subsequently called as a defence witness at the trial of this matter and gave important evidence in support of the testimony of the accused. Mr. Williams testified, essentially, that on the day in question, he surreptitiously brought a significant quantity of cocaine into the accused’s bedroom in a knapsack and left it there without telling his friend, Mr. Ovid. This evidence supported the trial testimony of the accused that he did not have any knowledge of the crack and powder cocaine that was ultimately found in his bedroom by the police when they executed their search warrant on the premises.