CITATION: Ching. v. Her Majesty, 2016 ONSC 7533
COURT FILE NO.: CR-16-90000062
DATE: 20161202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDY CHING
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
Kim Schofield, for the Applicant
Bari Crackower, Faiyaz Alibhai for the Crown Respondent
HEARD: November 28, 29 and December 1, 2016
DUCHARME J.
REASONS FOR DECISION
INTRODUCTION
[1] This is a s. 11(b) Charter of Rights application brought by the Applicant, Andy Ching, alleging violation of his right to be tried within a reasonable time. He is charged with one count of trafficking methamphetamine. The pre-trial motions have started in front of me on November 29, 2016 and it is estimated that the trial will finish by December 9, 2016.
The Case Against the Applicant
[2] In the spring of 2013, Toronto Police engaged in an initiative entitled ‘Project Infinity’ targeting importation of drugs into Canada. On March 25, 2013, the Toronto Police Service Drug Squad conducted surveillance on Faiz Faihz as part of Project Infinity. During the course of surveillance, an unknown male described as Asian, 30’s, thin build, wearing a black hoody and blue jeans, was observed entering the front seat of Faihz’s car, carrying a green Roots bag. When the unknown male exited the car, it is alleged that he no longer had the bag. When Faihz was arrested shortly thereafter, a search of his car found a green Roots bag containing two containers of crystal meth.
[3] Further investigation by the Toronto Police Service Drug squad lead to the belief that the unknown Asian Male observed on March 25, 2013 was Andy Ching. On September 25, 2013, Andy Ching was arrested and charged with a single count of Trafficking Crystal Methamphetamine contrary to section 5(3)(a) of the Controlled Drugs and Substances Act (hereinafter the “CDSA”).
[4] Mr. Ching was not charged with Mr. Faihz or Mr. Vallegas, the persons involved with the car. Instead the Crown chose to prosecute Mr. Ching along with five other accused charged pursuant to the Project Infinity investigation. The charges against Mr. Faihz and Mr. Vallegas were later stayed at the request of the Crown. The Crown concedes that the vast majority of the disclosure relating to the other co-accused was not relevant to Mr. Ching.
POSITION OF THE PARTIES
[5] The applicant argues that he should never have been prosecuted with the other individuals in the larger case and that this has greatly increased the delay in this case which exceeds both the Morin and the Jordan guidelines. As such the Crown cannot justify their failure to try Mr. Ching in a reasonable time.
[6] The respondent concedes that the delay in this case exceeds both the Morin and the Jordan guidelines but they point out that the institutional delay only marginally exceeds the Morin guidelines. The Crown points out that Mr. Ching never brought an application to sever his trial and in fact never did anything to indicate any concern with the progress of the case. In this regard, they note that the first mention of section 11(b) by the applicant’s former counsel was in an email dated October 9, 2016. The Crown submits that Mr. Ching actively contributed to the delay and took no steps to mitigate the alleged prejudice. They also argue that the Crown continually made efforts to move the matter along expeditiously.
THE CASELAW WITH RESPECT TO SECTION 11(B) OF THE CHARTER
[7] Prior to July 2016, the leading case on unreasonable delay was the decision of the Supreme Court of Canada in R. v. Morin, [1992] S.C.J. No. 25. Under Morin there were four basic criteria employed to answer the question of whether the delay in a given case was, in fact, unreasonable:
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; and
- prejudice to the accused.
The starting point was to determine the length of the overall delay, less any inherent, defence, or neutral delay. What remains is typically composed of institutional and Crown delay. It was this remaining period that was the focus of the s. 11(b) inquiry, and for which the Supreme Court of Canada had set a guideline of 8 to 10 months for Provincial Court and 6 to 8 additional months for matters that went to the Superior Court. Importantly, under Morin, the guideline was a sliding scale, and deviations of several months in either direction could be justified by the presence or absence of prejudice.
[8] On July 8, 2016, the Supreme Court released their decisions in R. v. Jordan, 2016 SCC 27, and R. v. Williamson, 2016 SCC 28. In Jordan the Supreme Court overturned Morin and replaced the four-factor test set out in that decision with a new framework for deciding section 11(b) cases. A summary of the new approach was set out in paragraph 105 of Jordan:
• There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the Provincial Court, and 30 months for cases in the Superior Court (or cases tried in the Provincial Court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.
• Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.
• Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.
• For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.
The Presumptive Ceiling in Jordan
[9] The most important feature of the Jordan approach is a presumptive ceiling of 18 months for cases going to trial in the Ontario Court of Justice and 30 months for those in the Superior Court of Justice, starting from the charge until to the actual or anticipated end of trial. This does not include defence-waived or defence-caused delay.
[10] All other factors contributing to the delay, such as inherent time requirements or intake periods, which under the Morin-analysis might have been central to the analysis, are included under this new ceiling. In addition, in the Jordan framework prejudice is irrelevant to whether a stay is granted or not, as is the seriousness of the charge. Once the ceiling is breached, the delay presumptively becomes unreasonable and a stay will follow, unless the Crown can establish the presence of exceptional circumstances.
Defence-Caused Delay
[11] Application of the Jordan framework begins by calculating the total delay from the charge to the actual or anticipated end of trial. Once that is determined, the court will subtract any periods of delay caused by the defence. Defence-caused delay includes (1) clear and unequivocal waiver of section 11(b); and (2) delay where the accused’s actions directly caused the delay or can be shown to be deliberate and calculated tactics aimed at causing delay, such as frivolous applications or requests.[^1]
[12] Defence-caused delay also occurs when the court and the Crown are ready to proceed but the defence is not. It does not include the unavailability of defence counsel if the Court or Crown are also not available. It does not include defence requests or applications that are not frivolous.[^2]
[13] However the Court in Jordan added this important qualification in their discussion of defence delay at para 65:
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence.
Rebutting the Presumptive Ceiling
[14] The Crown can rebut the presumptive unreasonableness of a delay that exceeds the ceiling if it can demonstrate the presence of exceptional circumstances. An exceptional circumstance is one that is (1) reasonably unforeseen or unavoidable and (2) cannot be remedied by Crown counsel or the justice system. In general, this falls into two categories: discrete events and particularly complex cases. A discrete event may be a medical or family emergency or an unexpectedly recanting witness. Any portion of an exceptional circumstance that the Crown or the system could not have reasonably mitigated will be subtracted from the overall period of delay from charge to the end of trial.[^3] The Crown concedes that there are no such exceptional circumstances in this regard and made no submissions in this regard.
[15] Jordan also mentioned a second category of exceptional circumstances where the case is particularly complex. The majority at paragraph 77 stated:
Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.
The Crown concedes that this is not a particularly complex case and made no submission in this regard.
Transitional Exceptional Circumstances
[16] The Jordan framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications or transitional exceptional circumstances. The first is where the Crown satisfies the court that delay is justified based on the parties’ reasonable reliance on the law as it previously existed under the Morin guidelines and its progeny. For example, under the previous framework, a longer delay may have been tolerated by the system when an accused appeared to suffer no prejudice, or where the charges were extremely serious. Secondly, a moderately complex case may exceed the ceiling in a jurisdiction with significant institutional delay problems.
THE DELAY IN THIS CASE
[17] There is not a lot of disagreement between the parties as to the nature of the delay in this case. I will set out my analysis of the delay in chart form and then make a few comments in footnotes to explain how I came to the conclusions I did.
Time Period & Explanation
Institutional Delay
Crown Delay
Defence Delay
Neutral/ Intake/ Inherent
ONTARIO COURT OF JUSTICE September 24, 2013 – January 14, 2014 This is the period from the date of arrest until the 1st court appearance after disclosure was provided.
112 days
January 14, 2013 – January 23, 2014 Despite letter from Crown expressing eagerness to set a judicial pre-trial date, counsel for the co-accused do not attend court and/or send dates. Matter is remanded to January 23, 2014 to set a date for judicial pre-trial.
9 days
January 23, 2014 – March 5, 2014 First judicial pre-trial scheduled for March 5, 2014.
41 days
March 5, 2014 – March 12, 2014 Applicant’s counsel, Mr. Christie, does not attend the first JPT. Applicant is remanded to March 12, 2014 to set date for second judicial pre-trial.
7 days
March 12, 2014 – May 12, 2014 Second judicial pre-trial scheduled for May 12, 2014. Agent for applicant’s counsel attends. Due to various unresolved issues a continuing judicial pre-trial is scheduled for June 26, 2014.
60 days[^4]
May 12, 2014 – June 26, 2014 Applicant’s counsel does not attend the third judicial pre-trial and does not provide list of requested witnesses or participate in fashioning an accurate time estimate.
45 days
June 26, 2014 – September 8, 2015 Date from third and final judicial pre-trial to start of the preliminary hearing. The court and Crown had dates available as early as July 2015 but not all counsel were available.
409 days
30 days[^5]
September 8, 2015 – October 21, 2015 Date from first day of preliminary hearing to first assign- ment court appearance in the Superior Court of Justice.
44 days[^6]
SUPERIOR COURT OF JUSTICE October 21, 2015 to November 16, 2015 Date from first appearance in Superior Court of Justice to scheduled judicial pre-trial.
26 days
November 16, 2015 to December 10, 2015 Continuing judicial pre-trial scheduled for December 10, 2015 as applicant’s counsel – as well as others – has not served/filed judicial pre-trial form.
24 days
December 10, 2015 – November 28, 2016 Date from second judicial pre-trial to start of trial.
324 days
30 days[^7]
November 28, 2016 – December 9, 2016 Date from first day of trial to anticipated conclusion of trial.
11 days
Total delay of 1172 days or 38 months and 4 days.
733 days
0
117 days
322 days
Total Delay
1172 days or 38 months and 4 days
Institutional
733 days
Crown Delay
0 days
Defence Delay
136 days
Intake/Inherent/Neutral
303 days
Ontario Court of Justice
Total Delay
757 days or 24 months and 27 days
Institutional
409 days or 13 months and 1 day
Crown Delay
0 days
Defence Delay
112 days
Intake/Inherent/Neutral
236 days
Superior Court of Justice
Total Delay
415 days or 13 months and 8 days
Institutional
324 days or 10 months and 18 days
Crown Delay
0 days
Defence Delay
24 days
Intake/Inherent/Neutral
67 days
[18] From the foregoing it is obvious that the case has exceeded the Morin requirements by 3 months in the Court of Justice and by 2 ½ months in the Superior Court.
THE PREJUDICE IN THIS CASE
[19] Mr. Ching is also alleging prejudice in this case. He brought a bail variation and he is now living with his girlfriend and her family. Mr. Ching says that there has been a lot of stress and anxiety in his relationship with her and with his parents. The fact that he has been on a house arrest bail that requires a surety to accompany him if he is out of the house has left him feeling like he is a huge burden on his family. Mr. Ching also complains of having to pay lawyer bills which have prevented him from having money for a down payment on a home.
[20] The Crown submits that none of the prejudice suffered by Mr. Ching is the result of the delay but that it is instead the result of having been criminally charged. The Crown also points out that, while Mr. Ching did seek a bail variation to let him live with his girlfriend, he never sought a bail variation with respect to the strict nature of his bail.
[21] I agree with the Crown that some of the stress and anxiety suffered by Mr. Ching results from the fact that he has been arrested and charged, rather than from the delay in having this charge dealt with. But I also accept that this stress and anxiety has been exacerbated by the delay in this case. As for Mr. Ching’s failure to seek a bail variation to permit him a less onerous bail I would point out the following: (1) there is no indication that the Crown would have consented to such a variation; and (2) even without such an application being made, it cannot be said that such a restrictive bail release does not involve prejudice. It does involve a significant restriction of Mr. Ching’s liberty interests and it is a prejudice that is obvious to both the Crown and the Court. The fact that Mr. Ching did not make an effort to deal with his restrictive bail does not mean that this prejudice ceases to exist and this is not a “less apparent” prejudice that must be brought to the attention of the court by the accused as in R. v. Bennett [1991] O.J. No. 884 (C.A.), aff’d [1992] S.C.J. No. 58.
ANALYSIS
[22] I can appreciate the frustration of the Crown in this case. Mr. Christie, Mr. Ching’s previous counsel, did nothing to expedite matters or to indicate a concern with s. 11(b) until October 9, 2016. Indeed, he inexplicably failed to comply with some of the policies of the Court that are designed to minimize delay and promote organized and efficient litigation of cases. But that does not alter the fact that the delay in this case exceeds the guidelines in Morin and the presumptive ceilings in Jordan.
[23] In my view, the central problem was the Crown’s inexplicable decision to prosecute Mr. Ching with the other accused in the Project Infinity investigation. I asked Ms. Crackower about why this was done and all she could say was that all of the charges were the result of the same investigation. That is not a viable excuse. The case against Mr. Ching was readily severable as was demonstrated by the separate prosecution of Mr. Faihz or Mr. Vallegas. Yet the severance of Mr. Ching was not done until after the preliminary inquiry more than a year after Mr. Ching’s arrest.
[24] More seriously, unlike the case against some of Mr. Ching’s former co-accused, the case against Mr. Ching was extremely simple. The Crown need only call the surveillance officers who saw Mr. Ching put the bag in the car and then lead evidence about the contents of the bag, specifically that it contained methamphetamine. That is the entirety of the Crown’s case against Mr. Ching. None of the rest of the evidence the Crown was leading against the other co-accused is relevant to this discrete transaction. The range of defences available to Mr. Ching is limited. But more importantly they are not related to the other evidence being led against his former co-accused. Ms. Crackower, in her fair submissions, conceded that post-Jordan the Crown would not likely proceed in this way. The fact that the Crown did so in this case is an indication of the complacency about s. 11(b) that the Jordan majority were critical of.
[25] I also reject the submission that the Crown “continually made efforts to move the matter along expeditiously.” Ms. Crackower concedes that the Crown did nothing to try and bring the matter forward to an earlier date. The record before me does not support this contention. While on June 26, 2014, Mr. Alibhai for the Crown mentioned the possibility of moving the matter forward or of severing accused, this was apparently not followed up by either the Crown or Defence. This is not consistent with the Crown’s duty to ensure that an accused’s s. 11(b) rights are respected.
[26] Under the approach in Morin I would find Mr. Ching’s rights under s. 11(b) were violated especially given the restrictive terms of his judicial interim release. Thus, under Jordan, I would conclude that the Crown has failed to satisfy the Court that delay is justified based on the parties’ reasonable reliance on the law as it previously existed under the Morin guidelines. The Crown also argued that this was a moderately complex case but I did not understand Ms. Crackower to argue that the delay was acceptable as ours is a jurisdiction with significant institutional delay problems. In any event, I reject the contention that this was a moderately complex case. The case against Mr. Ching was extremely simple and should not have been included in the larger prosecution. Moreover, no evidence was led suggesting that this jurisdiction has significant institutional delay problems and I would not be prepared to take judicial notice of that fact.
[27] In the result, I would find that Mr. Ching’s rights under s. 11(b) are violated by the delay in this case and I would direct a stay of proceedings.
Ducharme J.
Released: December 2, 2016
CITATION: Ching. v. Her Majesty, 2016 ONSC 7533
COURT FILE NO.: CR-16-90000062
DATE: 20161202
ONTARIO
SUPERIOR COURT OF JUSTICE
ANDY CHING
-and -
HER MAJESTY THE QUEEN
REASONS FOR DECISION
Ducharme J.
Released: December 2, 2016
[^1]: R. v. Jordan at paras 61 to 63
[^2]: R. v. Jordan supra, at paras 64 to 65
[^3]: R. v. Jordan, supra, at paras. 69-75
[^4]: This delay is necessitated by Mr. Ching’s lawyer’s failure to show up at the first pre-trial.
[^5]: The Crown had asked that this be considered 319 days for institutional delay and 120 days for neutral time. 60 days were for preparation and 60 days were for the unavailability of co-accused. I have put in 30 days for preparation given the narrow and straightforward case against Mr. Ching. As for the unavailability of the co-accused, in this case I do not consider it appropriate to ignore the impact on Mr. Ching’s s. 11(b) rights by treating that delay as neutral.
[^6]: The defence argued that this delay, for the length of the preliminary inquiry, should count against the Crown as Mr. Ching should not have been required to participate in the preliminary inquiry with the other co-accused. While I have considerable sympathy for this view, on the record before me I cannot determine how much of this time should be neutral. Thus, I have left this as neutral time.
[^7]: The Crown had asked that this be considered 264 days for institutional delay and 90 days for neutral time. I have put in 30 days for preparation given the narrow and straightforward case against Mr. Ching, the rest of the time is institutional delay.