Court File and Parties

COURT FILE NO.: CR15-169-0000 DATE: 20160629

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

Michael B. Carnegie, Provincial Crown and Elizabeth Barefoot, Federal Crown, for the Respondent

- and -

David D’Souza Applicant

Vanessa V. Christie, for the Applicant

HEARD: June 23, 2016

REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATION:

Section 11(b) of the Charter

Conlan J.

I. Introduction

The Charges and the History of the Proceedings

[1] David D’Souza stands charged on a thirteen count Indictment, as follows.

1. Her Majesty the Queen presents that David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region, and elsewhere in the Province, did unlawfully recruit, transport, harbor or exercise control, direction or influence over the movements of D.P., a person under the age of 18 years, for the purpose of exploiting her person, contrary to section 279.011(1) of the Criminal Code of Canada.
2. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did unlawfully receive a financial benefit knowing that it results from the commission of an offence under subsection 279.011 Criminal Code of Canada; contrary to section 279.02 of the Criminal Code of Canada.
3. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did live partly on the avails of prostitution of D.P., a person under the age of 18 years, contrary to section 212(2) of the Criminal Code of Canada.
4. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did procure D.P. to become a prostitute, contrary to section 212(1)(d) of the Criminal Code of Canada.
5. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess child pornography for the purpose of transmission to others, to wit; a computer graphic picture, contrary to section 163.1(3) of the Criminal Code of Canada.
6. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did without lawful excuse, point a firearm, to wit; a long-barreled gun at D.P., contrary to section 87 of the Criminal Code of Canada.
7. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess a weapon or an imitation of a weapon, for a purpose dangerous to the public peace, contrary to section 88 of the Criminal Code of Canada.
8. And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did by speaking directly knowingly utter a threat to D.P., to cause death to D.P., contrary to section 264.1(1) of the Criminal Code of Canada.
9. And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did have in his possession, a prohibited weapon, to wit; two push daggers, without being the holder of a licence under which he may possess it, contrary to section 91(2) of the Criminal Code of Canada.
10. And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit; Cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
11. And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule II, to wit; Cannabis, contrary to section 4(1) of the Controlled Drugs and Substances Act.
12. And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit; Methylenedioxyamphetamine, contrary to section 4(1) of the Controlled Drugs and Substances Act.
13. And further, David Joachim D’Souza, between September 1, 2013 and January 1, 2014, at the City of Owen Sound, Central West Region, did traffic in a substance included in Schedule I, to wit; Cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act.

[2] The accused has elected to be tried in the Superior Court of Justice, by a judge and jury. The trial is scheduled to commence with jury selection in Owen Sound, Ontario on September 19, 2016. It is expected to last two weeks.

[3] Mr. D’Souza was arrested in late May 2014. In early June 2014, he was released on bail.

[4] The preliminary inquiry in the Ontario Court of Justice was conducted in June 2015, with the accused being committed for trial in July 2015.

The Allegations

[5] It is alleged that a young lady, D.P. (17 years old at the time), worked as a prostitute for several months. She, a victim of the accused’s coercion, would perform sexual acts in exchange for money. She would meet clients in Toronto and at the residence of the accused in Owen Sound. The arrangements would be made by Mr. D’Souza, who would receive some of the revenues paid to D.P.

[6] It is further alleged that Mr. D’Souza once pointed a firearm at the complainant.

[7] In addition, it is alleged that the accused advertised the young lady’s sexual services on a website, showing provocative photos of her partially undressed.

[8] Upon the arrest of Mr. D’Souza at his residence, the police allegedly seized from that location, under warrant, a rifle and some other weapons, cocaine, MDMA, marihuana, cell phones, and a laptop computer.

[9] A search warrant was also executed at the home of the accused’s parents in Scarborough. It is alleged that a handgun and ammunition were seized.

[10] No charges were laid regarding the firearms.

[11] At the preliminary inquiry, the complainant gave evidence that she was present to observe the accused conduct drug transactions and had been, from time to time, offered cocaine by Mr. D’Souza.

The Defence Pretrial Application

[12] The Defence applies for a stay of proceedings, under section 24(1) of the Charter, due to an alleged violation of the accused’s right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter.

[13] Both Crowns oppose the Application, although just the Provincial Crown took part in the voir dire.

[14] I heard viva voce evidence from Mr. D’Souza and from Detective Constable Matheson, the officer in charge of the investigation.

II. Analysis

The Onus and Standard of Proof

[15] The burden of proof is on the accused Applicant to demonstrate, on a balance of probabilities, a violation of his right to be tried within a reasonable time.

A Summary of the Applicable Legal Principles

[16] Section 11(b) of the Charter provides that any person charged with an offence, including the Applicant, has the right to be tried within a reasonable time.

[17] Section 11(b) is concerned principally with the individual rights of the accused, including liberty, security of the person and a fair trial.

[18] The section also encompasses, however, a societal interest – to ensure that an accused person is tried promptly and fairly on the merits of the case.

[19] The relevant time period to assess on this Application is from the laying of the charge, May 30, 2014, to the completion of the trial, expected to be September 30, 2016: a total of 28 months.

[20] The Court shall undertake an examination of that 28-month period under the following categories: (i) the length of the delay; (ii) waiver of time periods; (iii) 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 the delay; and (iv) prejudice to the accused. R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.), at page 13.

[21] The ultimate decision as to whether the accused has been tried within a reasonable time does not come down to a simple mathematical formula. Reasonableness is not a precise concept but rather is a fact-driven and case-specific determination that can only be made after a careful balancing and weighting of the governing factors and an overall assessment of the entire time period. R. v. Poersch, [2015] O.J. No. 2043 (S.C.J.), at paragraphs 22 and 23, citing several authorities including R. v. Kporwodu, [2005] O.J. No. 1405 (C.A.), at paragraphs 184-197, and R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 (Ont. C.A.), at page 355.

The Overall Length of the Delay from Charge to Trial

[22] In Morin, supra, a total delay of 14.5 months was sufficient to raise the issue of reasonableness.

[23] Clearly, 28 months is more than sufficient. Further examination is warranted. The Crown does not argue otherwise.

[24] That further examination is found below, under the heading “Reasons for the Delay”.

Waiver of Time Periods

[25] There are none. The Crown does not seriously suggest otherwise.

Reasons for the Delay

Time in the Ontario Court of Justice

[26] The two sides are very far apart.

[27] Of the 13.5 months that elapsed in the lower Court between the end of May 2014 and mid-July 2015, the Applicant suggests that 10.5 of those months is attributable to Crown or institutional delay, while the Crown puts that figure at 3 months (2.5 months as indicated on the chart at page 29 of the Crown’s factum, plus an additional two weeks conceded by Mr. Carnegie in oral submissions at Court to account for the Crown delay between mid-October 2014 and early November 2014 with regard to obtaining the technological report from the police in Waterloo).

[28] The most crucial period of time that gives rise to the different calculations is that between the end of May 2014 (the charge date) and mid-January 2015 (the disclosure to the Defence of the technological report).

[29] In my view, looking at that crucial time period, neither approach taken by either side is reasonable. The Defence asserts that disclosure ought to have been completed (or substantially so) by July 10, 2014, and thus, the remaining part of that entire crucial time period is attributable to Crown delay.

[30] It is simply unreasonable to think that, in a moderately complex case such as this one, the disclosure process would be substantially done in less than six weeks. I agree with Ms. Christie that this is not an overly complicated prosecution, but it is not a simple one either. Its degree of complexity I would label as moderate – multiple search warrants, numerous charges, all of firearms/weapons/narcotics, human trafficking and prostitution offences and the need to analyze a massive amount of electronic data.

[31] I disagree with the Defence that the investigating police force ought to have simply dumped all of the data retrieved from the electronic devices on to disc(s) and disclosed that, holus bolus, to Mr. D’Souza. We have no idea whether that would have disclosed information clearly irrelevant to the case, by any definition of the term. It would have been simply unmanageable to do that, in my opinion.

[32] On the other hand, the Crown has pegged all of the time between the end of May 2014 and mid-January 2015, less just sixty days or so, as inherent delay. I think that such an approach does not sufficiently recognize that it is the Crown’s duty to bring the accused to Court, and that means fast-tracking technological disclosure whenever, wherever and however possible.

[33] My view is that the Defence cannot be blamed for waiting for the technological report before making big decisions in this case, and I think that the said report ought to have been completed and disclosed to the Defence within 120 days of the charge date (by the end of September 2014).

[34] As it was not, I attribute the period of time between the end of September 2014 and mid-January 2015, 3.5 months, as Crown delay. The previous period of time (the end of May 2014 to the end of September 2014) is inherent delay.

[35] Understandably, the Defence needed some time to digest the technological report after receiving it, thus, from mid-January 2015 to March 26, 2015 (when the preliminary inquiry was scheduled) is inherent delay (not mainly institutional, as submitted by the Defence).

[36] It is unreasonable to expect that the preliminary inquiry would have been accommodated any sooner than it was – less than three months after it was scheduled. That was a miraculous feat. Thus, from March 26, 2015 to mid-June 2015 could reasonably be considered as inherent delay (not mainly institutional, as submitted by the Defence).

[37] Since the Crown concedes that one month of that delay should be considered institutional, however, I will not go below the Crown’s position. I will accept that.

[38] Both sides agree that the month or so that it took the preliminary inquiry judge to release the decision is inherent delay.

[39] Thus, I assess the total amount of Crown/institutional delay in the Ontario Court of Justice at 4.5 months (that period of time between the end of September 2014, by which date the technological report ought to have been disclosed to the Defence, and mid-January 2015, when it was finally provided to Ms. Christie, plus the one month between when the preliminary inquiry was scheduled and when it was held).

[40] The rest of the time, 9 months, is inherent delay.

Time in the Superior Court of Justice

[41] Again, the two sides are very far apart. The only points of agreement are regarding the time periods between July 20 and November 4, 2015 and January 28 to February 1, 2016 – both sides consider those chunks to be inherent delay (just shy of 3.75 months).

[42] Of the 14.5 months that will have elapsed in the current Court between mid-July 2015 and September 30, 2016, the Applicant suggests that 10.5 of those months is attributable to Crown or institutional delay, while the Crown puts that figure at 4 months.

[43] The most crucial period of time that gives rise to the different calculations is that between early November 2015 (the second pretrial conference) and September 30, 2016 (the anticipated end of the jury trial).

[44] In my view, looking at that crucial time period, I draw the same conclusion as I did with regard to the time period in the lower Court - neither approach taken by either side is reasonable.

[45] The Defence asserts that, because the trial coordinator offered to attempt to accommodate the trial during scheduled civil sittings in April 2016, all of the time between mid-April 2016 and September 30, 2016 ought to be considered institutional delay.

[46] I disagree. That ignores the fact that, despite the admirable intention of the trial coordinator, it would have been practically impossible to accommodate the trial in April 2016 as there would have been insufficient time to hear and adjudicate all of the pretrial Applications brought by the Defence (there have been already and will continue to be many of them, some complex like a constitutional challenge to the human trafficking provisions in the Criminal Code).

[47] At least some of the time between mid-April 2016 and September 30, 2016 ought to be considered inherent delay. The Crown has pegged that at 2.5 months, with the rest (3 months) being institutional. I think that is a more reasonable attribution, and I adopt it.

[48] I agree more with the Defence, however, on the earlier period of time between November 4, 2015 and mid-April 2016.

[49] In hindsight, I think that Ms. Christie is correct that some delay might have been avoided if more of the pretrial Applications had been scheduled at the same time, although it seemed prudent back then to deal with the change of venue and severance matters up-front. Thus, I will accept the Defence’s attribution of November 4, 2015 to January 28, 2016 as institutional delay (2.75 months).

[50] That leaves just the time period between February 1 and mid-April 2016. The Crown attributes 21 days to Crown delay (because of an adjournment, at the request of the prosecution, of Defence pretrial Applications dealing with a constitutional question and abuse of process), while the Defence labels all of that time as Crown/institutional delay.

[51] I prefer the Crown’s approach – given the density of the materials filed by Ms. Christie and the importance and complexity of those pretrial matters, it is reasonable to assume that any prosecutor would have needed the time allotted by the Rules, likely longer, to properly prepare.

[52] Thus, I assess the total amount of Crown/institutional delay in the Superior Court of Justice at 6.5 months (2.75 months between November 4, 2015 and January 28, 2016, plus 21 days between February 1, 2016 and mid-April 2016, plus 3 months between mid-April 2016 and September 30, 2016).

[53] The rest of the time, 8 months, is inherent delay.

[54] That brings the total amount of Crown/institutional delay in both levels of Court to 11 months (4.5 plus 6.5), below the guidelines set out in Morin, supra (8 to 10 months in provincial court, plus 6 to 8 months after committal, for a total of 14-18 months).

Prejudice to the Accused

[55] The absence of any prejudice at all is not necessarily fatal to an 11(b) Application. Prejudice may also be inferred. Morin, supra, at pages 21 and 23-25.

[56] There is an Affidavit sworn by the accused which establishes some degree of actual prejudice arising from the delay in getting to trial: exacerbated stress and anxiety, foreclosed employment opportunities, and the inability, in the last several months, to travel to India to visit his very elderly paternal grandmother.

[57] The rest of the Affidavit sworn by the Applicant is not related to prejudice arising from delay but rather consequences of being charged: natural stress and anxiety commencing on the charge date of May 30, 2014, embarrassment at school and elsewhere because of media coverage of the case (which we know from a prior pretrial Application was concentrated during a time period close to the arrest), lost trips in 2014 (a mere few months after the charge date), a specific lost job in 2014 (a mere several months after the charge date), and legal costs (allegedly fueled by “needless court appearances”, which surely the Applicant had a significant role in).

[58] To that Affidavit evidence, the accused added something during his testimony on the voir dire – potential witness(es) who was/were initially prepared to come to trial and help his Defence but who is/are now not prepared to do so because of the delay.

[59] I am somewhat reluctant to place too much weight on the latter, for three reasons. First, I am surprised that the said evidence was not outlined in the Affidavit as it would have been, potentially, the most important thing to say about prejudice. Second, I found Mr. D’Souza’s description of the problem not entirely consistent in that his evidence-in-chief clearly implied that he had lost all connection to the witness(es) as opposed to speaking not long ago and having the person(s) simply refuse to attend the trial. Third, I found the evidence to be rather vague.

[60] Along a spectrum, I would place the overall prejudice from delay suffered by the Applicant at somewhere between slight and moderate. It is more than a case where the accused files no evidence at all but far less than a case where, for instance, the accused’s ability to make full answer and defence has been concretely hampered by the delay, or where he has been in custody or under house arrest bail terms, or where he can point to specific hardship incurred that would not have been sustained if the overall delay period had been significantly shorter.

A Final Balancing of all of the Circumstances

[61] A holistic approach to delay is what is required. I should not lose sight of the forest for the trees. R. v. Godin (2009), 2009 SCC 26, 245 C.C.C. (3d) 271 (S.C.C.), at paragraph 18.

[62] Any delay is unfortunate. Ideally, disclosure would have been provided quicker than it was, the case would have sped through the lower Court and, rather than become engulfed in pretrial Applications that have taken up considerable Court time, the matter would have proceeded to trial in Superior Court not long after the committal.

[63] But we do not live in an ideal world. And, frankly, the pretrial Applications brought by the Defence have all been meritorious, although this one the least so thus far.

[64] I have no hesitation in concluding that, balancing the prejudice to the Applicant against society’s interest in having these charges tried on their merits, the accused has failed to demonstrate that the delay in this case has passed from acceptable to unreasonable.

[65] I find no violation of the Applicant’s section 11(b) Charter right.

III. Conclusion

[66] The Application is dismissed.

Conlan J.

Released: June 29, 2016