CITATION: R. v. Cave and Grant, 2016 ONSC 1989
COURT FILE NO.: 682/14
DATE: 20160321
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MARCUS CAVE
and
KENNETH GRANT
Applicants
J. Prenger, for the Crown
C. Robb, for the Applicant Mr. Cave
M. Salih, for the Applicant Mr. Grant
HEARD: March 18, 2016
RULING ON 11(b)
MILLER J.
[1] Marcus Cave and Kenneth Grant are jointly charged with Possession of a Restricted or Prohibited Firearm that was loaded and/or had readily accessible ammunition; Marcus Cave is further charged with Possession of a Firearm Knowing that he did not have a licence and Possession of a Prohibited Device; Kenneth Grant is further charged with Possession of a Firearm Knowing that he did not have a licence. All offences are alleged to have been committed June 24, 2013.
[2] Both Mr. Cave and Mr. Grant bring applications for a stay of proceedings pursuant to s. 24 (1) of the Charter on the basis that their rights to be tried within a reasonable time, pursuant to s. 11 (b) of the Charter have been breached.
[3] Both accused were arrested and charged on June 24, 2013. Their trial, with a judge and jury, is scheduled to be heard March 29, 2016 and anticipated to take five to seven days.
The Law
[4] The Supreme Court of Canada in R. v. Morin 1992 CanLII 89 (SCC), [1992] S.C.J. No. 25 recognized that a decision on an application pursuant to s. 11 (b) of the Charter must balance the individual rights of an accused with the societal interest in law enforcement: “As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.” Paragraph 30
[5] As noted at paragraphs 27 and 28:
The individual rights which the section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.
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 restrictions 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.
[6] The factors to be considered in analyzing whether an accused’s right to trial within a reasonable time has been violated are set out in Morin at paragraph 31:
- 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, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for delay; and
- prejudice to the accused.
[7] The Court in Morin indicated at paragraph 55 that a period of time in the range of eight to ten months in the provincial courts and six to eight months from committal to trial in the superior courts would not be seen as unreasonable, recognizing, at paragraph 57 that:
These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances. The court of appeal in each province will play a supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions and problems of different regions in the province.
[8] The Ontario Court of Appeal noted in R. v. Tran 2012 ONCA 18, [2012] O.J. No. 83 at paragraphs 38 and 40 that inherent time requirements must also take into account time for counsel to prepare and file Charter motions and to prepare for trial. In that case the Court of Appeal held that no more than three months of the eight months between the judicial pre-trial and trial were attributable to institutional delay. “Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.” Paragraph 32
Timeline of Events
[9] On June 24, 2013 Toronto Police executed a search warrant at a residence located at Unit 232, 7555 Goreway Drive in Brampton. Marcus Cave, Jermaine Grant and Kenneth Grant were all present in the residence at the time the search warrant was executed. In the bedroom where Kenneth Grant was located police found a set of keys which opened a safe in the closet of the bedroom. Inside the safe was a Ruger semi-automatic handgun loaded with 8 rounds of ammunition. Also located in the safe was an expired passport for Kenneth Grant, along with Kenneth Grant’s Ontario Health Card and a Mastercard in the name of Kenneth Grant.
[10] In another bedroom was located a separate set of keys which opened a safe located in the closet of that bedroom in which was located approximately $1,600 in cash and a .40 calibre Glock handgun loaded with 13 rounds of ammunition. The magazine was over the legal capacity of 10 rounds of ammunition. Also inside the safe was a quantity of ammunition of various calibres and quantities. Four CanadaTrust bank cards in the name of Marcus Cave were located in that bedroom as well as a bulletproof vest. Marcus Cave was identified as the tenant for the unit on the tenancy agreement.
[11] A quantity of cocaine and a quantity of marijuana were also located in the residence.
[12] All three accused were arrested that date. Criminal Code and Controlled Drugs and Substances Act charges were laid against all three accused.
[13] June 25, 2013 the accused appeared in bail court. The Crown indicated they wished to show cause in respect of Marcus Cave and that a lengthy bail hearing would be required. The bail hearing was adjourned at the request of counsel for Mr. Cave to July 11, 2013. Kenneth Grant’s bail hearing was set to proceed on June 28, 2013.
[14] After a bail hearing in which the Crown sought the detention of Mr. Grant on the secondary and tertiary grounds Kenneth Grant was released on bail June 28, 2013 requiring him to make his first appearance in court August 6, 2013.
[15] After a bail hearing in which the Crown sought the detention of Mr. Cave on the secondary and tertiary grounds Marcus Cave was released on bail July 11, 2013 requiring him to make his first appearance in court August 6, 2013.
[16] August 6, 2013 Mr. Cave did not appear. Pursuant to a letter from his lawyer, Ms Robb, the matter was adjourned to be spoken to August 21, 2013. A bench warrant with discretion was issued for Mr. Cave. August 6, 2013 Mr. Grant appeared. The Crown requested a three week adjournment in order to make disclosure. The matter was adjourned to August 27, 2013 for that purpose.
[17] There is no transcript of the proceedings August 21, 2013 but the transcript for August 27, 2013 indicates that Mr. Cave had been remanded to September 18, 2013.
[18] August 27, 2013 Crown disclosure was still not available. The Crown indicated a further two to three weeks would be necessary. The matter was adjourned to be spoken to September 17, 2013 at the suggestion of counsel for Mr. Grant who was also acting as agent for counsel for Jermaine Grant.
[19] As at September 17, 2013 disclosure had been provided. The transcript provided for this date appears to pertain to an unrelated matter, but counsel on the application agree that The matter was adjourned at the request of counsel for the accused to September 30, 2013.
[20] September 18, 2013 counsel for Mr. Cave appeared by way of designation. She had obtained disclosure. She was advised the co-accused had adjourned their matters to September 30, 2013 and asked that Mr. Cave’s matter be adjourned to that date as well.
[21] Counsel agree that there was Crown resolution meeting on September 24, 2013.
[22] September 30, 2013 counsel for Mr. Grant appeared indicating his availability as early as October 7, 2013 for a judicial pre-trial. October 7, 2013 was already a full day at that point. The Crown suggested October 17, 2013 but the first day counsel for Mr. Cave was available was November 20, 2013. The transcript indicates that the judicial pre-trial for all three accused was set to that date.
[23] The information reflects a judicial pre-trial being set for all three accused October 17, 2013. A transcript from that day shows that on that date a preliminary hearing was set to proceed September 22 and 23, 2014 with a confirmation date of August 21, 2014. It is clear from the record that the September 22 and 23, 2014 dates were the first dates offered by the trial coordinator and that counsel for Mr. Grant was available “much, much earlier”.
[24] An affidavit of Deanna Manbodh, a legal secretary at the firm representing Mr. Grant, indicates that when the preliminary hearing date was set on October 28, 2013 their firm of 18 lawyers could have been available “on almost any given date”. An exhibit to her affidavit shows the availability of all 18 lawyers as at October 17, 2013 through to the end of July 2014.
[25] August 21, 2014 the preliminary hearing dates were confirmed.
[26] September 22, 2013 Counsel for Mr. Cave was ill and could not attend. On that day, with the consent of Mr. Cave and his counsel, Jermaine Grant made a statutory declaration under oath following which all charges against Jermaine Grant were withdrawn at the request of the Crown. The matter proceeded as scheduled September 23, 2014. A continuation date was set for November 28, 2014. The Trial Coordinator scheduling sheet indicates that on September 22, 2014 a continuation date of October 1, 2014 was offered and the Crown was available but it was unknown whether defence counsel would be available. November 28, 2014 was the second continuation date offered and the one accepted.
[27] On November 28, 2014 further evidence was called on the preliminary hearing. The Crown did not proceed with the Controlled Drugs and Substances Act charges and asked that they be stayed; committal was conceded on the Criminal Code charges. Counsel agreed on a first appearance before the Superior Court December 12, 2014.
[28] In Superior Court December 12, 2014 counsel for Mr. Grant indicated availability for a judicial pre-trial as early as the following week and counsel for Mr. Cave indicated her availability beginning December 31, 2014. The first date offered by the Court was January 20, 2015 and the judicial pre-trial was set for that date.
[29] January 20, 2015 a judicial pre-trial was held. It was determined that five days would be required for pre-trial motions and those were set to commence August 4, 2015. Counsel indicated availability the week of July 13, 2015. The Court offered August 4, 2015 with an opportunity to spill over into the following week if necessary. The matter was then put to the March 24, 2015 to set a date for trial and for the accused to consider an offer of resolution that had been made by the Crown.
[30] The matter was brought forward January 23, 2015 as counsel did not want to wait to set a trial date. Defence counsel indicated their availability for a seven day trial for the period August 13-30, 2015 and after that from October 27-November 13, 2015. The Court had available time October 19, 2015 and November 16, 2015 but counsel for Mr. Cave was not again available until March 29, 2016. The trial date was set to commence March 29, 2016 with a trial readiness date of March 18, 2016.
[31] There was an appearance March 24, 2015 to confirm the pre-trial motion dates beginning August 4, 2015.
[32] The pre-trial motions commenced August 4, 2015 and concluded August 11, 2015. Judgment was reserved on the pre-trial motions and the matter set to November 24, 2015 for a further judicial pre-trial. The rulings on the pre-trial motions were released August 26, 2015. November 24, 2015 there was no resolution. On March 1, 2016 the Applicants filed their Application for stay.
Allocation of the Delay
[33] It is Mr. Grant’s position that by the time the trial is completed, two years, nine months and 14 days will have passed since Mr. Grant was charged with these offences. Counsel for Mr. Grant submits that 132 days (five months) is attributable to inherent delay; 204 days (six and a half months) to Crown delay; 581 days (19 months) to institutional delay; and 66 days (two months) to “other” delay.
[34] It is Mr. Grant’s position that inherent delay encompasses the period June 24, 2013 to August 6, 2013 (44 days). It is his position that disclosure should have been provided by the August 6, 2013 first appearance. It is Mr. Grant’s position that the period between August 6, 2013 and September 17, 2013 should be attributed to Crown actions – the delay in providing disclosure.
[35] Mr. Grant’s position is that a second period of inherent delay runs from September 17, 2013 (when disclosure had been provided) to October 28, 2013 (41 days) when the dates for the preliminary inquiry were set. It is his position that the two days of the preliminary inquiry (September 23 and November 28, 2014) are also properly considered inherent delay.
[36] It is Mr. Grant’s position that his counsel was ready and available to conduct a preliminary inquiry immediately from October 28, 2013 onward and that all of the time from October 28, 2013 to September 22, 2013 (the first date offered by the Court) is institutional delay.
[37] It is Mr. Grant’s position that the 66 day period between September 23, 2014 when the preliminary hearing was scheduled to conclude and November 28, 2014 when it concluded should be considered “other” delay. The preliminary hearing did not proceed September 22, 2014 because counsel for Mr. Cave was ill. It is Mr. Grant’s position that the continuation date was required to accommodate counsel for Mr. Cave.
[38] It is Mr. Grant’s position that the period from November 28, 2014 when he was committed to stand trial through to his first appearance in Superior Court December 12, 2014 (17 days) is also properly considered inherent delay. It is his position that as his counsel was available from December 15, 2014 in order to conduct a judicial pre-trial, the period from December 12, 2014 through January 20, 2015 should be considered institutional delay.
[39] It is Mr. Grant’s position that the period from January 20, 2015 through February 2, 2015 (13 days) when his counsel indicated availability to conduct the pre-trial motions is properly considered inherent delay. It is Mr. Grant’s position that as his counsel indicated availability to proceed with pre-trial motions as early as February 2, 2015, the period from that date through to August 4, 2015 when the pre-trial motions were set to be heard should be considered institutional delay. Mr. Grant relies on R. v. Swaminathan 2015 ONCJ 394 at paragraph 47 - “court rules must give way to constitutional imperatives such as the right to a trial within a reasonable time” - as authority for the proposition that inherent time need not encompass notice or filing requirements.
[40] It is Mr. Grant’s position that the period between August 4, 2015 and August 11, 2015 (8 days) during which the pre-trial motions were heard is properly considered inherent delay.
[41] It is Mr. Grant’s position that none of the delay is attributable to him although some of the delay is attributable to Mr. Cave due to the unavailability of his counsel at certain stages in the proceedings.
[42] It is Mr. Grant’s position that 204 days of the delay is attributable to the Crown encompassing August 6, 2013 when disclosure was not yet available through to September 17, 2013 when disclosure had been provided (42 days).
[43] It is Mr. Grant’s position that the coordination of counsel schedules caused delay when the trial dates were set. It is his position his counsel was available from February 2, 2015 but the Court could not provide dates before October 19, 2015. This, he submits, should be considered institutional delay. While Mr. Grant’s counsel was available for both the October 19, 2015 and November 16, 2015 trail dates offered, counsel for Mr. Cave was not available those dates and not available until the March 29, 2016 date which is now set. It is Mr. Grant’s position this caused an additional 162 days of delay which he attributes to the Crown.
[44] It is Mr. Grant’s position that the combined delay occasioned by accommodating the schedule of Mr. Cave’s counsel “triggered” an obligation on the Crown to ensure Mr. Grant’s right to trial within a reasonable time by severing the two accused and proceeding against each of them separately at trial. In this he relies on the decisions in R. v. Topol [2007] O.J. No. 3094 (S.C.J.) affirmed at 2008 ONCA 113, [2008] O.J. No. 535 (C.A.).
[45] It is Mr. Grant’s position, supported by the affidavit of Mr. Aubin, that as the Crown was proceeding against each accused on the basis of the particular handgun found in the bedroom attributed to each of them that trial efficiency would not justify the further delay of Mr. Grant’s trial by trying the two accused together.
[46] Mr. Grant points to the case of R. v. Osei [2007] O.J. No. 768 (S.C.J.) as a case of striking similarity, with an overall delay of 28 months in which a stay was granted.
[47] Mr. Cave adopts the position taken by Mr. Grant.
[48] It is the Crown’s position that intake, inherent and neutral time on this matter totals 17 months and 15 days. The Crown submits that as the case involved two investigative police services and Information to Obtain the search warrant involved a confidential informant, the case was sufficiently complex so as to properly consider the delay in disclosure to September 17, 2013 as an inherent time requirement. It is not disputed that the time between September 17, 2013 and October 28, 2013 should be considered inherent delay.
[49] The Crown submits that an additional three months, to January 30, 2014, is reasonably considered as neutral time necessary for all counsel to prepare for the preliminary hearing. The Crown would begin the calculation of institutional delay as at February 1, 2014.
[50] It is the Crown’s position that institutional delay, considering the procedures both in Provincial and Superior Court, totals 16 months and 13 days. This would encompass the time between February 1, 2014 through to September 21, 2014 (the day before the commencement of the preliminary hearing) (234 days); the time between March 24, 2015 (when resolution discussions in the Superior Court ended) through to August 3, 2015 (the day before the commencement of the pre-trial motions)(133 days); the time between November 24, 2015 (when further resolution discussions in the Superior Court ended) through to March 28, 2016 (the day before the commencement of the trial proper) (126 days). The total time the Crown attributes to institutional delay amounts to 493 days.
[51] All other time that passed between the arrests of the accused and the end of the trial the Crown submits is neutral.
[52] It is the Crown’s position that the Court should treat the delay occasioned by the illness of counsel for Mr. Cave as “neutral”. In this she relies on the Summary Conviction Appeal Court decision in R. v. Boivin [2012] O.J. No. 4053 at paragraphs 15-17 in which the appeal court held that there was no error in treating a delay of approximately three months resulting from the illness of a witness as neutral.
[53] It is the Crown’s position that illness, and coordinating schedules and communication, are all natural and neutral aspects of moving a complex matter with co-accused forward to trial.
[54] More particularly, it is the Crown’s position that it was reasonable to continue to pursue this matter as a joint trial and to work with all accused to move the matter forward expeditiously. The Crown submits that the two Applicants were involved in a common enterprise of possessing firearms in one location on the specific day of the executed search warrant. A joint trial is the logically favoured choice; it runs consistent with the authorities which recognize that it is in the interests of justice that individuals charged jointly with an offence be tried together. A single trial for two or more accused generally conserves judicial resources, avoids inconsistent verdicts, sometimes avoids further inherent delays such as obtaining transcripts from other proceedings, and avoids witnesses having to testify more than is already required.
[55] The Crown points to the fact that in this case, no counsel moved to sever their client and they jointly pursued the Garofoli application which formed a significant part of the pre-trial motions heard and decided in August 2015. It is the Crown’s submission that, unlike Topol, which totaled five years of delay from the arrest to the completion of trial, this is not a case where the Crown “repeatedly” acquiesced to unreasonable scheduling delays of one of the defence parties to the detriment of another defence party. It is the Crown’s position that neither co-accused has significantly delayed the other co-accused in this case when considering that both counsel jointly pursued Charter applications, and when considering the sometimes-unfavourable consequences of severance.
Analysis
[56] It is not disputed that the overall time from charge to the anticipated end to the trial – June 24, 2013 to April 6, 2016 – 1018 days or approximately 33.5 months is sufficiently lengthy to warrant further scrutiny as to the reasons for delay.
[57] It is not disputed that Kenneth Grant and Marcus Cave at no time waived their rights to trial within a reasonable time.
[58] The limits on institutional resources in the Superior Court in Brampton were specified in comments made by Durno, J. on December 12, 2014 and again on January 23, 2015 when this matter was before the Court. On the first date Durno, J. indicated on the record that the jurisdiction was at that time short three judges due to a delay by the federal government in filling vacancies; as of January 23, 2015 those vacancies had been filled. On both dates Durno, J. indicated on the record that a shortage of courtrooms acknowledged by the provincial government as early as 2012 had not yet been addressed and that as result certain cases might have to be tried elsewhere in the region.
[59] There can be no doubt that a shortage of institutional resources played a part in the time to trial for each of the accused.
[60] It is not disputed that the time from the arrests June 24, 2013 through to the first appearance August 6, 2013 is inherent delay and should be treated as neutral.
[61] I accept the Crown’s submission that disclosure in this case was sufficiently complex, involving the collection of material for disclosure from two police services and, more particularly, the careful vetting of disclosure in order to protect the identity of the confidential informant, that the additional time to September 17, 2013 was reasonably required and should also be considered inherent, or neutral delay. This is a total of 167 days of neutral time to October 28, 2013 when the dates for the preliminary inquiry were set.
[62] It is not disputed that on October 28, 2013 the first dates offered for the two day preliminary hearing were September 22 and 23, 2014 and that counsel for the accused were available “much, much earlier”. Counsel for Mr. Grant and Mr. Cave submit that the entire time from October 28, 2013 to September 22, 2014 (329 days) should be considered institutional delay. The Crown submits that three months of that for reasonable preparation time for the preliminary hearing should be considered as neutral.
[63] It was recognized by the Ontario Court of Appeal in R. v. Tran 2012 ONCA 18, [2012] O.J. No. 83 at paragraph 38 that inherent time requirements must also, realistically, take into account time for counsel to clear their calendars and prepare for trial. In that case, where there was no evidence before the court as to when defence counsel would realistically have been available, the appeal court allocated only three months of an eight month delay to institutional delay.
[64] Here counsel for Mr. Grant provided affidavit evidence on the Application showing the availability of the 18 lawyers in the firm – anyone of them able and capable of conducting a two day preliminary hearing in this matter at a moment’s notice, in the submission of counsel for Mr. Grant.
[65] While the evidence clearly shows the availability of many of the lawyers at the firm to attend in court for a two day preliminary hearing, I accept the Crown’s submission that some portion of that time should be considered inherent as necessary to preparation for the preliminary hearing. I do not accept the Crown’s submission that three months is appropriate, taking into account that the preliminary hearing was relatively straightforward, but I do allocate one month as necessary preparation time and therefore neutral. I find that the institutional delay between October 28, 2013 through to September 22, 2014 is 298 days.
[66] The preliminary hearing did not proceed September 22, 2014 because counsel for Mr. Cave was ill. Evidence was heard September 23, 2014 and the preliminary hearing continued and concluded November 28, 2014. It is Mr. Grant’s position that the 67 day period between September 23, 2014 when the preliminary hearing was scheduled to conclude and November 28, 2014 when it concluded should be considered “other” delay. It is the Crown’s position that this period should be considered neutral.
[67] Although it is Mr. Grant’s position that the continuation date was required to accommodate counsel for Mr. Cave, he does not take the position that the delay was so significant as to trigger action by the Crown such as severing the two accused at this stage in the proceedings. He does not take the position that this delay is institutional delay.
[68] In my view the approach of counsel to this 67 day period is correct, particularly given the indication on the trial coordinator scheduling sheet that a continuation date was available to the court and to the Crown as early as October 1, 2014. As the court in Boivin recognized, with reference to the Court of Appeal decision in R. v. A.J.W. 2009 ONCA 661, [2009] O.J. No. 3814 at paragraph 35: “Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case.” This approach was also followed in the Ontario Court of Appeal decision in R. v. Roncaioli 2011 ONCA 378, [2011] O.J. No. 2167 at paragraph 30. I do not see any reason to treat the illness of counsel any differently. I find that the period between September 22, 2014 and November 28, 2014 is neutral.
[69] It is not disputed that the period between November 28, 2014 when the accused were committed for trial and their first appearance in Superior Court December 12, 2014 (14 days) is inherent delay and should be treated as neutral.
[70] Mr. Grant’s position is that institutional delay should run from December 15, 2014 (the first day his lawyer was available for a judicial pre-trial in the Superior Court) to January 20, 2015 when the judicial pre-trial was held. Counsel for Mr. Cave was not available until December 31, 2015. The first date offered by the court for a judicial pre-trial was January 20, 2015.
[71] The Crown takes the position this is inherent time. There are filing requirements for the judicial pre-trial forms – the Crown must file theirs 15 days in advance of the judicial pre-trial. Further, the period of time between December 12, 2014 and January 20, 2015 encompasses the traditional holiday period. While, as counsel for the Applicants submitted, the court holidays are only three, it is well recognized that due to a two week school vacation, court staff and judges, as well as counsel, often use this time for vacation. As a result, fewer courts are running and there is a resultant impact on available court time.
[72] While I agree with the submission made by counsel for the Applicants that the right to trial within a reasonable time cannot take a back seat to the court accommodation of traditional vacation time periods, I find that the time between December 12, 2014 and January 20, 2015 is inherent time. I find that the comments of the Court of Appeal in Tran at paragraph 40, that inherent time requirements must realistically encompass time for counsel to prepare and file Charter motions, is equally applicable for judicial pre-trial forms. These are an important part of the pre-trial process, designed to focus counsel on the options for resolution and the issues for trial so that appropriate time can be allocated. Including the actual court holidays and the minimum 15 day filing requirement for the judicial pre-trial forms, I find that the 39 day period between December 12, 2014 and January 20, 2015 should be treated as neutral.
[73] Mr. Grant’s position is that only the period from January 20, 2015 when the judicial pre-trial was held to February 2, 2015 when his lawyer was first available for trial should be considered further inherent delay. This does not take into account, as noted above in Tran, that inherent time requirements must realistically encompass time for counsel to prepare and file Charter motions. The Crown takes the position that a further two months is realistically considered inherent time.
[74] It was clear from the judicial pre-trial that five days were required for pre-trial motions that included a Garofoli application on the part of both accused and statement voir dires for each of the accused. It is common ground that a Garofoli application is a complex proceeding involving significant preparation. At minimum, the application would have to be filed 30 days in advance of the date the pre-trial motion was to be heard. It is patently ridiculous for counsel for Mr. Grant to assert that they were in position to bring the Garofoli application, and to be prepared for the statement voir dire as at February 2, 2015. I find that the 63 days from January 20, 2015 through to March 24, 2015 when the pre-trial dates were confirmed is properly considered as neutral.
[75] The time from March 24, 2015 through August 3, 2015 (133 days) is properly considered institutional delay.
[76] It is not disputed that August 4, 2015 to August 11, 2015 (8 days) when the pre-trial motions were being heard should be considered neutral time.
[77] It is Mr. Grant’s position that from August 12, 2015 through to October 19, 2015, the first date for trial offered by the court should be considered institutional delay. The Crown takes the position that as time was needed after that for the motions judge to rule on the motions and the parties returned November 24, 2015 for a further judicial pre-trial and possible resolution of the matter that all of that time should be considered inherent delay.
[78] I agree that the time from the hearing of the pre-trial motions until the ruling on them should also be considered neutral time. I do not agree that time should extend to November 24, 2015. The ruling on the pre-trial motions was released August 26, 2015. I find that the time from August 12, 2015 through August 26, 2015 (15 days) is neutral.
[79] I find that the time from August 27, 2015 through October 19, 2015 (54 days) is institutional delay.
[80] The time from October 19, 2015, the first trial date offered by the court for which counsel for Mr. Grant was available, to March 29, 2015 was solely to accommodate counsel for Mr. Cave. I find that period of time cannot count as delay for Mr. Cave as it was his choice of counsel that caused the further delay. Counsel for Mr. Grant and the Crown could have proceeded as of October 19, 2015.
[81] I find that the total neutral time from June 24, 2013 through to October 19, 2015 amounts to 364 days. The institutional delay to this point amounts to 485 days or approximately 16 months. This is the institutional delay applicable to Mr. Cave.
[82] There are an additional 162 days from October 19, 2015 when everyone but counsel for Mr. Cave was available to March 29, 2016 when she also was available. Mr. Grant takes the position that Crown action accounts for this additional time, as the Crown could have spared him the additional delay by severing the accused and permitting Mr. Grant to proceed with his trial from October 19, 2015.
[83] There is no dispute that the time from March 29, 2016 to complete the trial on April 6, 2016 (as anticipated) is neutral time.
[84] The Crown agrees that it was at January 23, 2015 when it was apparent that accommodating counsel for Mr. Cave would add another five and a half months delay that a decision could have been taken to sever the accused. The Crown takes the position however that to continue the trial with both accused did not add significantly to the delay and was a reasonable one considering the identifiable advantages in terms of trial efficiency.
[85] Even if the trials proceeded separately after the pre-trial motions, avoiding the peril of inconsistent decisions, that would have involved a number of police witnesses having to testify at both trials and additional court time. As has been noted in a number of decisions on the right to trial within a reasonable time, each case does not exist in a vacuum. A decision to proceed with two trials would impact on the availability of court time and other resources to other accused persons.
[86] I note the comment made by the Ontario Court of Appeal in R. v. Nguyen 2013 ONCA 169, [2013] O.J. No. 1243 at paragraph 71: “We should be reluctant to second-guess prosecutorial decisions about joinder, both with regards to whether and when to remove some accused from the larger prosecution and to proceed against them separately.”
[87] As noted by Strathy J. (as he then was) in R. v. Charles [2013] O.J. No. 74 (S.C.J.) at paragraph 36, with reference to a number of appeal decisions, as a general rule, delay caused by the actions of a co-accused - including delay arising from the attempt of a co-accused to locate and retain counsel - is considered neutral and is not factored into the assessment of reasonable time.
[88] This case is distinguishable from Topol and from R. v. Whylie [2007] O.J. No. 1127 (C.A.) in that in both those cases the Crown had proceeded separately against the accused then made a deliberate decision to join them, thereby resulting in delay in accommodating the schedules of counsel for co-accused. In this case, Mr. Grant would have the Crown faulted for inaction – failing to sever the accused in a prosecution that was joint from the outset.
[89] There is no doubt that the additional five and half months to accommodate the schedule of counsel for Mr. Cave added significantly to the delay. The particular circumstances of this case would have permitted the Crown to proceed separately against each accused once the Garofoli application had been heard and decided. The Crown could have, as at January 23, 2015 when this situation arose, and Mr. Grant had already raised s. 11(b) concerns at the judicial pre-trial, indicated their intention to proceed separately against each accused once the Garofoli application had been decided. That would have permitted Mr. Grant to have his trial from October 19, 2015.
[90] However, I find that the decision of the Crown to continue in a joint prosecution was not unreasonable. It was important that the Garofoli application which was brought jointly be heard jointly – this addressed concerns of trial efficiency as well as the value in avoiding possible inconsistent decisions. It would be extremely unusual for the Crown to indicate before that application was heard and decided that they would proceed separately against each accused at trial. In all of the circumstances, I find that the additional delay of five and a half months should be considered neutral.
[91] The total delay for Mr. Cave and Mr. Grant attributable to institutional delay amounts to approximately 16 months.
Prejudice
[92] Marcus Cave provided an affidavit in which he indicates he was held in custody following his arrest on June 24, 2013 until July 11, 2013. At that time he was released on a recognizance of bail in the amount of $18,000 without deposit. Three sureties were named. Terms of the judicial interim release order require him to reside with one of his sureties and to remain within the residence except in the presence of a surety, except for medical emergencies and for the purposes of employment.
[93] Mr. Cave swears that the conditions of “house arrest” have caused him to feel depressed and hopeless as it has been difficult for him to go back to school or to get a job. He swears that prior to his arrest he had been employed for five years at Cosco [SIC].
[94] Mr. Cave swears that as the trial date approaches he has been stressed and scared. He swears that not knowing whether he will have to back to jail has been “almost unbearable” for himself and for his family.
[95] Mr. Cave testified on the Application. He indicated that although his bail conditions permitted him to work he discovered the day after being released that he had been terminated from his former employment. He testified that he made efforts to find alternative employment and did so for a time but was unsuccessful in doing so after he was charged with breaching his bail in December 2013.
[96] Mr. Cave also testified that the passage of time had impacted on his ability to remember details that might be pertinent to his defence. Cross-examination on this point revealed little substance to this assertion.
[97] In addition to being charged with two counts of Breach of Recognizance in December 2013 Mr. Cave was then charged with Possession of Marijuana and Breach of Recognizance in January 2014. Despite these charges his original bail on these offences was not revoked. The new charges were resolved by pleas of guilty on November 26, 2014 to the January 2014 charges of Possession of Marijuana and Breach of Recognizance for which Mr. Cave was fined.
[98] Kenneth Grant provided an affidavit in which he indicates that he was held in custody following his arrest on June 24, 2013 until June 28, 2013. At that time he was released on a recognizance of bail in the amount of $5,000 without deposit.
[99] Mr. Grant’s recognizance signed June 28, 2013 required that he reside with his surety and remain in his residence except for medical emergencies, court-related matters, counsel matters or in the presence of his surety.
[100] Mr. Grant swears that the prior to his arrest he had been employed for approximately two years as an installer with Eagle Eyes Windows and Doors, supporting himself and his five children. Since his release on these charges he has been living on social assistance, causing his family great financial hardship.
[101] Mr. Grant swears that having the charges hanging over his head has been stressful and frustrating and that he has been unable to make any plans for his future.
[102] October 3, 2014 Mr. Grant’s bail was varied on consent of the Crown to permit him to move with his surety to a different address. All other conditions remained the same.
[103] July 31, 2015 Mr. Grant’s bail was varied on consent of the Crown to permit him to move with his surety to a different address. All other conditions remained the same.
[104] Kenneth Grant testified on the Application that he was unable to return to his prior work because it required that he be bondable. He testified that in mid April 2015 he was able to obtain work with a roofing business and intended at that time to apply for a bail variation that would permit him to leave his residence for work but discovered outstanding warrants for his arrest for breach of his bail He testified that by the time those charges were withdrawn in December 2015 the seasonal roofing work was no longer available to him.
[105] Mr. Grant testified that because of the requirement that he be accompanied by his surety out of the residence and because his surety has a number of health issues, he has missed a number of events involving his children, including birthdays and Christmases.
Analysis
[106] It is clear that there is inferred prejudice to any accused facing serious charges and that prejudice increases with the length of the delay. R. v. Steele 2012 ONCA 383, [2012] O.J. No. 2545 at paragraphs 28-29. The court in Osei noted the particularly worrisome nature of outstanding firearms charges.
[107] As recognized by the Court of Appeal in R. v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756 at paragraphs 32-33, “The focus of prejudice under s. 11(b) is the prejudice flowing from a situation "prolonged" by delay rather than the mere fact of being charged with a criminal offence.”
[108] Here there is evidence from Mr. Cave and Mr. Grant as to the effect of having the charges outstanding against them. In addition, in this case there is evidence of specific prejudice. There can be no doubt that both Mr. Cave and Mr. Grant have experienced significant restrictions on their freedom both to interact with others and to earn income.
[109] Mr. Grant and Mr. Cave also take the position that the lower end of the range set out in Morin should apply here based on the fact that the case is not particularly complex, that a significant period of time has passed since Morin was decided and it is reasonable to expect that by now the system would have addressed the problems causing institutional delay present at that time, particularly in Peel Region. The cases relied on in support of this proposition are: R. v. Sharma 1992 CanLII 90 (SCC), [1992] S.C.J. No. 26 at paragraph 25 of the dissent; R. v. Meisner [2003] O.J. No. 1948 (S.C.J.) at paragraph 74; R. v. Stephens [2007] O.J. No. 3500 (S.C.J.) at paragraph 67; R. v. Quinney 2010 ONSC 6605, [2010] O.J. No. 5276 (S.C.J.) at paragraphs 15-18; and R. v. James [2012] O.J. No. 8 (S.C.J.) at paragraphs 25-27.
[110] It is the Crown’s position that as recognized in R. v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756 (C.A.) at paragraph 38, the Applicants could bring their “plight” resulting from restrictive bail terms to the attention of the Crown when that plight may not be so readily apparent to the prosecution who does not know about the defendant’s personal life. The Crown takes the position that as in R. v. Marini, [2005] O.J. No. 6196 (S.C.J.) at 181-182, if the applicant does not notify anyone about his alleged hardships prior to the 11(b) application, such complaints may be given less credence.
[111] This is particularly applicable to Mr. Cave, whose bail conditions permitted him to work.
[112] I note as well that Mr. Cave was convicted of breach of his bail conditions – in such circumstances it would be difficult for him to complain of their restrictiveness.
[113] It is also clear that it was Mr. Cave’s choice of counsel that will account for approximately five and a half months of the neutral delay.
[114] For Mr. Grant, whose conditions of bail did not permit an exception for work, I note that he did not seek that exception at his original bail hearing, nor did he pursue a variation of that condition. Further, when it became apparent that the health issues of his surety impacted on his ability to spend time with his children, a fact entirely unknown and unknowable to the Crown, he did not seek to have another surety added to his bail so as to permit him greater freedoms.
[115] The Crown refers me to R. v. Evans, [2012] M.J. No. 353 (Q.B.); affirmed 2014 MBCA 44, [2014] M.J. No. 129 (C.A.) wherein the accused was under relatively strict bail conditions for more than four years as well as spending more than 1 1⁄2 years in pre-trial custody. It was held that the impingement on his freedoms did not outweigh the societal interest in bringing serious firearms charges to trial.
[116] The institutional delay in this case, as I have found it, while clearly exceeding the Morin guideline for the Ontario Court of Justice, falls within the combined guideline set out for the provincial court and the superior court together. I am not persuaded that in the circumstances of this case a strict application of the lower end of the range is warranted.
[117] Balancing the prejudice, both inferred and specific to Marcus Cave against the societal interest in having the charges determined on their merits, I find that Mr. Cave’s right to trial within a reasonable time has not been violated. The Application is dismissed.
[118] Balancing the prejudice, both inferred and specific to Kenneth Grant against the societal interest in having the charges determined on their merits, I find that Mr. Grant’s right to trial within a reasonable time has not been violated. The Application is dismissed.
“Justice Miller”
MILLER J.
Released: March 21, 2016