R. v. Manh, 2016 ONSC 6970

CITATION: R. v. Manh, 2016 ONSC 6970

COURT FILE NO.: CR-14-02183

DATE: 20161130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEN MANH

Defendant

COUNSEL:

Ms. J. Gleitman, for the Crown

Ms. M. Fernandes, for the Defendant

HEARD: November 10, 2016

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published

REASONs FOR 11(b) RULING

EDWARDS j.:

[1] Mr. Manh brings this application seeking a stay of proceedings on grounds that his right to be tried within a reasonable time, guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (the Charter), has been infringed.

The Facts

[2] Mr. Manh stands charged with three counts that relate to allegations of sexual assault, touching for a sexual purpose and inciting a person under the age of 16. The assaults are alleged to have occurred between February 1, 2011 and December 31, 2011. Mr. Manh was arrested on March 28, 2014. His first appearance in the Ontario Court of Justice was on March 28, 2014. Between March 28, 2014 and his committal for trial in the Superior Court of Justice on August 10, 2015, Mr. Manh made 18 appearances in the Ontario Court of Justice. The total time in the Ontario Court of Justice was approximately 18 months.

[3] A judicial pre-trial in the Superior Court commenced on September 22, 2015, and was adjourned to October 21, 2015. At the judicial pre-trial on September 22, 2015, the following dates for trial were offered to the parties: September 28, 2015 through October 19, 2015; the weeks of October 19 and 26, 2015; November 30, 2015; and December 7, 2015. It is noted on the indictment that Crown counsel was available for the weeks of November 30, 2015 and December 7, 2015. Defence counsel was not available for any of the dates offered.

[4] When the matter next came before the Superior Court on October 21, 2015, the indictment is endorsed by RSJ Fuerst that the judicial pre-trial continued and the defence wished to review materials regarding a possible s. 11(b) application. The matter was adjourned to December 3, 2015 to speak to that issue and to set a trial date. The indictment is endorsed by RSJ Fuerst that 11(b) was waived for this interim period.

[5] The matter resumed on December 3, 2015, at which time RSJ Fuerst endorsed as follows:

Neither Ms. Fernandes (defence counsel) nor Mr. Manh appear as of 12:55 p.m., both paged. Mr. Tait attempted to contact Ms. Fernandes without success. Adjourned to January 6, 2016 at 9:30 a.m. to continue judicial pre-trial.

[6] When the matter returned on January 6, 2016 before RSJ Fuerst, the indictment was endorsed indicating that there would be no 11(b) application and that the matter would proceed on June 24, 2016, for a one day third party records application and the trial date itself was fixed for August 2, 2016 for two weeks.

[7] On March 23, 2016, the indictment reflects that the Crown was seeking an adjournment of the trial because “On February 2, 2016 the complainant booked a trip out of the country”. The matter was adjourned to April 13, 2016, to allow the Crown to have discussions with the complainant to ensure her availability for trial. On April 13, 2016, the Crown confirmed that the complainant would be available for the scheduled trial date and adjourned the matter to April 25, 2016, at which time the Crown’s application for an adjournment was abandoned and the previous dates of June 24, 2016 for the third party records application and the trial date of August 2, 2016 for two weeks were confirmed.

[8] The third party records application came before me on July 15, 2016. Unfortunately, the records which were the subject matter of the application were not available for the Court to review when the matter was called at 9:30 a.m. Arrangements were made, however, for those records to be provided to counsel for the complainant, so that counsel for the complainant could consider his position regarding disclosure. It was agreed that if counsel for the complainant was so instructed, he could release the records to the Crown and to defence counsel. If an issue concerning disclosure of those records remained, those issues were adjourned to be dealt with by me at the commencement of the trial scheduled for August 2, 2016. No issues were raised before me on August 2 relating to the third party records from which I infer the defence and Crown were content with the disclosure made.

[9] On August 2, 2016, the trial commenced with the arraignment of the accused and jury selection, which was completed on August 3, 2016. The jury had been informed at the commencement of the jury selection process that this matter would be a two week trial. The evidence commenced on August 4, 2016 and continued on August 5, 8 and 9, 2016. On August 10, 2016 defence counsel advised the Court of an issue with respect to one of the interpreters, who Mr. Manh suggested had not been properly interpreting. I will refer to this as the interpreter issue. This resulted in an application for a mistrial. A voir dire on this issue was conducted by the Court on August 11, 12, 15 and 22, 2016, ultimately resulting in my Reasons released on August 22, 2016 denying the mistrial motion.

[10] At the time that I denied the motion for the mistrial I canvassed with counsel available trial dates that the Court made available, and ultimately this matter was adjourned to November 14, 2016 to resume the trial; a date that was most convenient for the members of the jury, counsel and the Court.

[11] At the point in time when the defence motion for a mistrial was heard, the complainant was in the middle of cross-examination. With the denial of the defence mistrial motion the Crown then sought a mistrial by way of an application dated September 30, 2016, largely on the basis that the postponement of the trial had impacted on the overall fairness of the trial process because of the long pause in the complainant’s evidence. The defence consented to the Crown’s mistrial application and, as such, I granted the mistrial and adjourned this case to November 14, 2016 to pick a new jury and start the trial afresh.

[12] Initially defence counsel indicated that Mr. Manh wanted another judge to conduct the trial and as such a judicial pre-trial was conducted by RSJ Fuerst, at which point in time it was agreed that I would hear both the 11(b) application and the trial. The trial would commence on November 14, 2016 if the 11(b) application was not granted and would continue for an estimated two to three weeks. The trial will therefore be complete, based on this trial estimate, by no later than December 9, 2016 (which includes a one week adjournment necessitated to accommodate Crown counsel’s ongoing trial commitment before another judge of this Court). From the time of his arrest on March 28, 2014 until the projected completion of the trial on December 9, 2016 the total delay will be 32 months, 13 days. The delay in the Ontario Court of Justice until Mr. Manh’s committal for trial was 16 months and 13 days. The delay in the Superior Court of Justice will be 16 months.

The Issue

[13] The recently released decision in R. v. Jordan, 2016 SCC 27, establishes a new framework to be applied on an 11(b) motion for a stay of proceedings. Jordan establishes a presumptive ceiling of 18 months for cases going to trial in the Provincial Court and 30 months for cases proceeding in the Superior Court. As such, with the projected trial completion date of December 9, 2016, this case will exceed the presumptive ceiling by two months and thirteen days. The issue I have to decide on this motion is whether there is any defence delay that would reduce the total delay to something less than a total of 30 months.

Position of the Crown

[14] Ms. Gleitman argues that there are two periods of time in the Superior Court that the Court can look to in establishing defence delay. The first period of time occurs between September 22, 2015 and January 6, 2016, a period of approximately 3.5 months during which it is argued the record establishes that the Crown and the Court were prepared to set trial dates. Defence counsel was not available for the dates that were available to the Court and the Crown, and as such Ms. Gleitman argues that this is a period of defence delay. The second period of time is between August 10, 2016 and November 14, 2016 when the Court was considering - and ultimately refusing, the defence mistrial motion relating to the interpreter issue and the fixing of the new trial date. This delay is a period of approximately three months.

[15] If Ms. Gleitman is correct that both of the aforesaid periods of delay can be ascribed to the defence then the total delay from Mr. Manh’s arrest is a delay of approximately 26 months, which falls below the ceiling established in Jordan.

[16] Ms. Gleitman also argues that the Court must apply a contextual approach in applying the Jordan criteria, as the parties could not have anticipated the imposition of a new 11(b) regime. It is argued that the reasonableness of the delay in this case was amply demonstrated, both under the Morin framework and the Jordan framework.

[17] In response to the arguments asserted on behalf of Mr. Manh as it relates to the question of delay, Ms. Gleitman notes that when the trial of this matter began in August 2016 at a point in time when Jordan had been released by the Supreme Court of Canada on July 8, 2016, no 11(b) application was before the Court. By inference, therefore, it is suggested if there was no 11(b) application in August 2016 the defence must have acknowledged that any delay to that point in time did not warrant an application or stay of proceedings.

[18] As to the issue of prejudice asserted by Mr. Manh in his evidence and affidavit, Ms. Gleitman argues that any prejudice is grossly overstated and that there is no evidence to suggest that any of the delay has actually prejudiced Mr. Manh, especially in the context of Mr. Manh’s evidence that he has “no worries” about the charges.

Position of the Applicant, Mr. Manh

[19] Ms. Fernandes argues that not all of the delay between September 22, 2015 and January 6, 2016 should be ascribed to the defence. It is acknowledged that she did not attend on December 3, 2015 due to a scheduling error, and the matter was therefore remanded to January 6, 2016. While not specifically acknowledged in her factum nor in oral arguments as being a period of delay that should be ascribed to the defence, it would be very difficult to suggest that where there is a delay of one month due to the non-attendance of defence counsel because of a scheduling error in her calendar, that that period of time should not be ascribed to the defence.

[20] With respect to the period of time between September 22, 2015 and December 9, 2016, Ms. Fernandes argues that this was a period of time that was set aside to allow the defence to consider its position with respect to whether or not there would be an 11(b) application. Ms. Fernandes argues that essentially this is preparation time and not a period of time during which the Court should find any delay on the part of Mr. Manh.

[21] With respect to the delay related to the interpreter issue Ms. Fernandes argues that the motion was not a frivolous motion, and therefore the delay between August 10, 2016 and the resumption of the new trial on November 14, 2016 should also not be ascribed to the defence. Ms. Fernandes further notes that while there were earlier dates offered by both the defence and the Crown, the proposed date for the resumption of the trial was a date that was the most convenient for the members of the jury (this assumed that the mistrial had not been granted).

Prejudice

[22] In support of the 11(b) motion, Mr. Manh filed an affidavit. He was cross-examined on his affidavit as part of the 11(b) motion. Mr. Manh testified to the impact that the charges have had on him since he was arrested. Not surprisingly, Mr. Manh in his affidavit and evidence testified to how waiting for his trial has been very stressful. Mr. Manh is a hair stylist and according to his evidence earns approximately $22,000 annually. He testified to the impact that the time he has had to take away from work has had on him both emotionally and financially.

[23] Since he was arrested Mr. Manh has married Priscilla Lin. They were married on October 29, 2015. Ms. Lin had been treated for colorectal cancer a few years prior to their wedding. The cancer is in remission. Ms. Lin has no status in Canada, and as such she is not covered under OHIP and cannot afford to be seen by a doctor for annual checkups. Mr. Manh testified that because of his charges he has not been able to put into place “a plan” that he and Ms. Lin have to have a family.

[24] Mr. Manh was arrested and released on bail on March 28, 2014. I was not made aware of the bail conditions, but from his evidence he has been able to continue with his employment as a hair stylist.

[25] In cross-examination, Mr. Manh acknowledged that Ms. Lin had returned to Taiwan on at least one occasion for medical follow-up. In response to a question put to him in cross-examination that Ms. Lin’s lack of medical coverage was in no way connected with Mr. Manh’s charges, he stated that there is a big connection between the charges and his wife’s medical status because he cannot apply for that medical status because of this case. He went further to suggest that this case should have been over “two to three years ago”.

[26] In cross-examination Mr. Manh was questioned on whether the charges are a constant source of worry, to which he indicated that the charges themselves are not the source of worry, but rather the “dragging on of this matter” is the source of worry. He was then asked a question as to whether he was worried when he was charged, to which Mr. Manh stated “I have never been worried about this thing”.

Analysis

The Crown Available for Trial/the Defence Not Available for Trial

[27] When this matter came before the Ontario Court of Justice on October 15, 2014, counsel for Mr. Manh stated….“I would ask for this, just because my office is located in Toronto, and unfortunately we don’t have a lot of days, and I don’t want too much time to pass for this matter. I would like to move it along as expeditiously as possible”. In Mr. Manh’s cross-examination on this 11(b) application he emphasized on more than one occasion how long this matter had dragged on for.

[28] This matter first came before this Court on September 22, 2015. The Court offered the parties’ trial dates in September, October and November, 2015. The Crown was available during the weeks of November 30, 2015 and December 7, 2015. Defence counsel advised the Court she was not available for those dates, nor any of the other dates that were offered during September or October 2015.

[29] In argument, Ms. Fernandes suggested that the time between September 22, 2015 and December 7, 2015 should not be considered as defence delay, as it was a period of time that should be looked upon as legitimate defence “preparation time” and a period of time when the defence was properly considering whether to bring an 11(b) application. These arguments need to be considered in the context of this being a period of time when the Court and the Crown were available to try this case.

[30] While it may be argued the defence would not have had available the transcripts of the 14 appearances in the Ontario Court of Justice, either Ms. Fernandes or someone else on her behalf appeared in the Ontario Court of Justice. As such if delay was an issue in the Ontario Court of Justice, Ms. Fernandes would have been in a position to know what the basis may have been for an 11(b) application when she appeared in this Court on September 22, 2015. There is no evidence that transcripts were ordered during the time period between September 22, 2015 and December 7, 2015, and as such it is - in my view, fair to infer that an 11(b) application was never a matter for serious consideration at that point in time. The real reason the defence did not avail itself of the proposed trial dates between September 22, 2015 and December 7, 2015 (and specifically the dates the Crown was available), was because defence counsel was not available due to other trial commitments.

[31] Mr. Manh is entitled, within reason, to his counsel of choice. Mr. Manh, however, cannot complain about his case dragging on and not having his case tried within a reasonable period of time, when earlier trial dates are offered and they are not found to be acceptable because his lawyer is not available. I do not fault Ms. Fernandes, nor do I fault Mr. Manh for this situation. Lawyers are busy people who have many other commitments for a multitude of clients in many different Courts. That said, however, in the new post-Jordan world in which the criminal justice system must now work, defence counsel must appreciate that if they cannot accommodate dates offered by the Court which would result in an earlier trial, they can expect that this period of time will be considered as defence delay which will be deducted from the 30 month framework established by Jordan.

The Interpreter Issue and Attribution of Delay

[32] In my Reasons denying the defence mistrial motion, I anticipated the question of delay and how that delay should be dealt with in the event the Court was confronted with an 11(b) motion. In that regard, I stated:

“The delay in bringing to the Court’s attention the concerns K.M. had with Mr. To is very concerning. This is particularly so, given K.M.’s evidence that the trial was all about him and he needed to know everything that was going on in the trial. While the delay may, in some circumstances be explained by the cultural differences suggested by K.M., I do not accept that someone who is on trial – facing a potentially significant period of incarceration, would stand by and say nothing if they had issues with an interpreter. If an accused or his counsel has concerns that an interpreter is not meeting the standards laid down by the Supreme Court of Canada in Tran, supra, there is an onus on the accused to raise this issue immediately with the Court so as to avoid the possibility of a mistrial. To delay raising the issue calls into question the bona fides of the purpose of a mistrial application, such as the one before the Court. If either or both counsel seek a mistrial because of the delay and the impact this may have on trial fairness as it relates to the evidence of the complainant being severely truncated, the Court would consider such a request as this issue has already been raised as a possible option. If a mistrial was granted for that reason alone, this Court wants to make it abundantly clear that if the defence then pursues a challenge under s. 11(b) of the Charter, that the delay between August 10, 2016 and when a new trial can be accommodated by the Court (likely the week of November 14, 2016, such delay was caused by the defence and not the Crown.”

[33] While the delay from August 10, 2016 through November 15, 2016 may be properly ascribed to the defence, there still remains the question of whether that delay can be described as frivolous; this because the Supreme Court in Jordan stated...“Defence applications and requests that are not frivolous will also generally not count against the defence.” (See Jordan at para. 65)

[34] In deciding whether the defence mistrial motion was frivolous, I need to decide if the defence motion was legitimately undertaken to respond to the charges as part of Mr. Manh’s right to make full answer and defence. There can be little doubt that an accused has not only the right to be present during his or her trial, but equally as important an accused has the right to be able to hear and understand the evidence as it is given in a trial. An accused like Mr. Manh who does not speak fluent English has the right to an interpreter. If the interpreter is not fulfilling his or her oath to properly interpret from English to Cantonese effectively, such failure effectively deprives an accused of his right to be present at his or her trial.

[35] In my Reasons denying the defence mistrial motion I made it clear that I did not call into question the bona fides of defence counsel in pursuing the motion - after all defence counsel does not speak Cantonese, and as such she can only be guided by her client in terms of whether an interpreter was in fact properly interpreting the evidence. I do not, however, accept that Mr. Manh was motivated by reasons of ensuring his right to make full answer and defence.

[36] Mr. Manh, as evidenced in his police statement, understands English. He does not however, have enough of a comprehension of the English language to understand the nuances of a criminal trial. As such he legitimately needs the assistance of an interpreter. Nonetheless, with his demonstrated understanding of English, as revealed during the course of his police video statement, Mr. Manh had no basis to question the services of the interpreter which resulted in the voir dire and ensuing delay in dealing with the interpreter issue. As such, I am satisfied that the mistrial motion was in fact frivolous, and the delay between August 10, 2016 and November 15, 2016 must be ascribed to the defence and therefore deducted from the total period of delay

Conclusion

[37] Mr. Manh asserts in his evidence that he has been prejudiced by the delay in these proceedings. Where the delay is under 30 months the defence must establish that the delay was nonetheless unreasonable. In that regard the defence must show that it “took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have.” (see Jordan para 82)

[38] I note that the prejudice asserted by Mr. Manh relates for the most part to his marriage to Ms. Lin approximately 18 months after his arrest. With the charges still looming over his head Mr. Manh says he and his wife have not been able to plan for a family. Ms. Lin it is argued has been prejudiced because she does not have status in Canada which has precluded her getting medical care for her cancer condition.

[39] I do not accept that the delay in these proceedings has caused prejudice specific to Mr. Manh. He has been able to work. He chose to marry Ms. Lin when he did knowing that the charges against him were still pending. Ms. Lin’s lack of Canadian status and the impact this has had on her medical status, while regrettable, can not be directly ascribed to the delay.

[40] In dealing with whether Mr. Manh has suffered prejudice I have taken into account Mr. Manh’s assertion that these proceedings have “dragged on” for far too long. I also have considered that when this matter was in the early days in the lower court Mr. Manh’s counsel asserted she wanted to move this matter along “as expeditiously as possible”.

[41] There was no evidence filed on this application that the defence took any steps to expedite these proceedings. If anything when dates were offered for a trial in late November 2015 it could be argued the defence thwarted the ability of the Court to accommodate an early trial date. I also have no evidence to suggest that in the pre Jordan era a sexual assault trial in the Superior Court of Justice would have typically taken something less than the delay experienced by Mr. Manh. Prejudice to Mr. Manh is therefore not an issue that will affect the outcome of this application.

[42] Having considered whether there was any defence delay in this matter, I am satisfied that there were three periods of time that must be deducted from the 32 months of total delay in this case. The first period of time was between November 30, 2015 and December 7, 2015, when the Court had available trial dates that the Crown could accommodate but the defence could not. The second period of time was between December 3, 2015 and January 6, 2016 when the matter was in abeyance due to the nonattendance of defence counsel on December 3, 2015. The third period of time was between August 10, 2016 and November 14, 2016 caused by the defence mistrial application arising out of the interpreter issue. The total of these three periods comes to just over four months. When these four months are deducted from the total delay of approximately 32 months, the delay is within the established framework established by the Supreme Court of Canada in Jordan. As such, the defence application for a stay of proceedings is dismissed

Justice M.L. Edwards

Released: November 30, 2016

CITATION: R. v. Manh, 2016 ONSC 6970

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KEN MANH

REASONS FOR 11(B) RULING

Justice M.L. Edwards

Released: November 30, 2016