R. v. Stock, 2011 ONCJ 768

COURT FILE No.: Toronto Region - Scarborough DATE: 2011·06·02 Citation: R. v. Stock , 2011 ONCJ 768 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ERIC STOCK Before Justice M. Wong Heard on May 11, 2011 Reasons for Judgment released on June 2, 2011 Patrick Woods ........................................................................................................... for the Crown Robert Burke .......................................................................................... for the accused Eric Stock Wong, J.: [ 1 ] Eric Stock is charged with Operate Over 80. This is a ruling on a

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b) Application brought by Defence counsel prior to trial for a stay of proceedings based on unreasonable delay. [ 2 ] The Supreme Court of Canada in the decision of R. v. Morin [1] , outlined the factors that courts should consider in determining whether or not a delay in any given case is unreasonable. They are: (

a) the length of the delay; (

b) waiver of time periods; (

c) the reasons for the delay, including (

i) the inherent time requirements of the case; (ii) actions of the accused; (iii) actions of the Crown; and (iv) limits on institutional resources; and (

d) prejudice to the accused. [ 3 ] Mr. Stock was charged on April 25, 2009 and his trial is set for August 15, 2011. The information was sworn on May 5, 2009. The total period of delay is approximately 27.5 months. As such the Crown agrees this length of time warrants an inquiry. The Crown also acknowledges that the Defence has not waived any time periods. Reasons for the Delay : [ 4 ] The following is a brief history of Mr. Stock’s case as it proceeded through the court system: • Mr.

Stock was arrested and charged with Operate Over 80 on April 25, 2009, and released on a Promise to Appear • On May 5, 2009, the information was sworn. • On June 3, 2009, Mr. Stock made his first appearance in court and the Crown provided him with full disclosure including a copy of a DVD. • After June 3 rd , Mr. Stock made three additional court appearances until August 18 th , when the accused appeared in court and had a letter from counsel, Mr.

Burke indicating that he had been retained; and asking the matter be adjourned to September 17 th when counsel could personally attend to speak to the matter. • On September 17, 2009, Defence counsel attended and conducted a Crown pre-trial. It was estimated the trial would take 2-3 days. Rather than conducting a Judicial pre-trial on the same date, as is customary in Metro East court on Impaired/Over 80 cases, Mr. Burke requested the matter be adjourned to October 19 th in order to seek instructions. • On October 19 th , a judicial pre-trial was held before Justice Finnestad in courtroom 406.

Two to three days was estimated for the trial because Defence counsel anticipated bringing a constitutional challenge to the “Carter Defence” amendments to the Criminal Code . There was discussion on the record that the constitutional argument would be heard at the end of the trial. As such, both parties agreed to two dates for trial of July 21 and 22, 2010, when evidence would be called; and August 30, 2010, for the constitutional challenge.

• In a letter dated May 27, 2010, counsel Mr. Burke wrote the Crown’s office indicating his client was abandoning the anticipated constitutional challenge. In the same letter, Defence counsel indicated that he was not available on July 21 and 22 (the first two days for the trial) because he was away on vacation. Counsel wrote that he was confident the trial could be heard on one day and requested that Mr. Stock’s trial be adjourned to September 30 th . • On June 1, 2010, the matter was brought forward and spoken to in court.

Defence counsel formally abandoned the constitutional challenge and vacated the two trial dates in July; and August 30, 2010 was set for Mr. Stock’s trial. • On July 30th, Crown counsel brought a motion for an adjournment of the August 30 th trial date because the Crown’s witnesses were unavailable. On the

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b) application, Crown counsel Patrick Woods submits the Crown’s witnesses were available for the two July dates; however, the officers were never expected to be testifying on August 30 th , which had been set aside for the constitutional challenge, so their leave dates had not been considered when the August date was set. • On July 30 th , the Crown’s application for an adjournment was granted. Mr. Stock’s new trial date was December 2, 2010. • On December 2 nd , Defence counsel was ill and the trial could not proceed.

The matter was remanded to December 9 th because Defence counsel’s agent had not arrived with dates when Mr. Burke would be available for trial. • On December 9 th , a new trial date of August 15, 2011 was set. • This

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b) application was properly brought in advance of the August 15 th trial date. (a)Inherent Time Requirements of a Case: [ 5 ] The inherent time requirements of a case refers to the time required to retain counsel, process the charge, apply for bail and other pre-trial procedures. [2] All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. There are no set administrative guidelines for the intake period.

The Courts recognize there may be significant variation between the categories of offences and different jurisdictions. [ 6 ] In general, I tend to consider 2-3 months as a general time line after the information is sworn when both parties ought to be ready to move the case forward and set a trial date. In this case, the Crown appears to have been ready to proceed on Mr. Stock’s first appearance in court when they provided the defendant with full disclosure including a copy of the DVD. Frankly, this is the way disclosure ought to provided and well within any court’s guideline. [ 7 ] Mr.

Stock needed more time to get prepared to set a trial date. By September 17, 2009, Mr. Stock’s fourth subsequent appearance, counsel Mr. Burke was present and conducted a judicial pre-trial. [ 8 ] In this case, while the Crown was ready to set a trial date on June 3 rd , Mr. Stock required a longer period of time extending the inherent time requirements in this case to September 17 th . [ 9 ] Hence, four and a half months was required to get both parties ready to set a trial date because Mr. Stock and his counsel needed the extra time. (

b) Actions of the Accused: [ 10 ] Defence counsel materials are silent regarding whether any of the delay in this case is attributable to the Applicant and his counsel. However, the Crown submit actions of the accused caused significant delay in at least three aspects. [ 11 ] First, the Crown argues that when the Applicant vacated the two trial dates of July 21 and 22 in favour of August 30, the defendant chose the latter date. As such, one month of the delay ought to be considered as Defence caused delay. [ 12 ] Secondly, after counsel had conducted a Crown pre-trial on September 17 th , Mr.

Burke requested to adjourn the case for a judicial pre-trial. As the record reflects, at the time it was estimated that 2-3 days was required for the trial and the constitutional challenge. As Mr. Burke stated on the record, he needed to “tell his client the facts of life” relating to retainer, likelihood of success and so on. In other words, he needed to receive instructions. Crown counsel correctly points out that in Metro East court, in court judicial pre-trials can be heard on the same date as the Crown pre-trial.

On charges of Over 80/Impaired/Refuse Sample cases in Scarborough, there is seldom institutional delay of having to remand a case for a judicial pre-trial. We conduct judicial pre-trials on the record as part of our intake court which operates daily. [ 13 ] Finally, the Crown submits the trial scheduled for December 2, 2010, was adjourned because Mr. Burke was ill – as such, from December 2, 2010 to August 15, 2011is Defence delay. [ 14 ] In court, Mr. Burke acknowledges that when the Crown sought to adjourn Mr.

Stock’s August 30 th trial date, he could have asked for July 21 or 22 nd , but it turned out his family had planned a vacation. With respect to the time in between completing the Crown pre-trial and setting the judicial pre-trial, counsel also acknowledges in hindsight he could have conducted the JPT sooner. Finally, although his illness was unpredicted, Mr. Burke acknowledges it was a Defence request for an adjournment of the December 2 nd trial date. Again, in hindsight, Mr. Burke opines the situation may have been different if a

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b) motion had been brought and heard on December 2 nd .

[ 15 ] As such, I find that 9.5 months of the delay in this case is attributable to the Defence. (

c) Actions of the Crown: [ 16 ] Mr. Burke submits the delay caused by the Crown bringing a motion to adjourn the first trial ought to be considered Crown delay because the Crown’s witnesses were unavailable. [ 17 ] The Crown submits the first two July dates were always intended for the trial and the August date reserved for legal argument.

As such, the Crown submits the delay caused by the adjournment of August 30 th ought to be considered either defence or neutral delay. [ 18 ] Defence counsel submits that even though it was the Defence who opted for the August 30 th as the trial date, had the matter proceeded on the July 21 and 22 trial dates – even though it turned out he was on vacation, he would have found other counsel to conduct the trial to preserve Mr.

Stock’s rights to be tried in a reasonable time, and the Crown ought to have had their witnesses available for both the July and August trial dates. [ 19 ] The transcript of October 19, 2009, wherein the judicial pre-trial was held before Justice Finnestad, at page 13, reveals that counsel expected the constitutional argument would only be heard after the evidence on the trial was completed.

However, no specific mention of witnesses was mentioned on the record. [ 20 ] As such, to be fair, I am of the view that the Crown when setting trial dates that unless specifically waived, all Crown witnesses ought to have been available. As such I find the 3 months delay from the first trial date to the second as Crown delay. (

d) Institutional Delay [ 21 ] I find limits on institutional resources resulted in 10.5 months from October 19, 2009 to August 30, 2010 –the 1 st trial date – as constituting institutional delay when the court could not accommodate Mr. Stock’s trial and both parties were ready to proceed. (

e) Total Operative Delay [ 22 ] I find the total operative delay in Mr. Stock’s case is 13.5 months due to both institutional delay and delay cause by the actions of the Crown.

Prejudice to the accused : [ 23 ] Prejudice in this context is concerned with the three interests of the accused: • Liberty, as regards to pre-trial custody or bail conditions; • Security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and • The right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross- examine witnesses or otherwise to raise a defence [3] [ 24 ] The focus of the prejudice assessment 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. However, that the delay to trial beyond the guidelines prolongs an accused’s shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines. The Courts have also held that there is inherent prejudice whenever an individual is charged with a criminal offence.

The question whether there was actual prejudice demonstrated by the Applicant must be decided on a case-by-case basis. [ 25 ] The only prong of the prejudice analysis argued in Mr. Stock’s case is the security of his person. [ 26 ] Eric Stock is 55 years old. He is married with two university age children, for whom he is struggling to finance their years in university. He works as a security software designer and has no criminal record. In his affidavit and in court, Mr. Stock describes the huge financial burden the trial and the various delays have cost him. Mr.

Stock says he has always been fiscally responsible and has saved continually for his children’s university costs. However, with the two adjournments of his trial, Mr. Stock testified he has incurred greater legal costs, which in turn, has resulted in him and his wife arguing over money – something they never fought about before he was charged. His 16 year old son has delayed getting his G2 license because the cost of insurance will sky rocket if Mr. Stock is found guilty after his trial. [ 27 ] Since being charged, Mr. Stock says he has many sleepless nights and takes an off-the-shelf sleep medication.

He constantly worries of his elderly mother finding out about the charges because she would be mortified and he would be humiliated. [ 28 ] In his affidavit and in court, Mr. Stock described himself as a very nervous person. My limited observation of Mr. Stock during his testimony is consistent with his self-assessment. Mr. Stock was polite, articulate but highly emotional when questioned by the lawyers. I accept his reaction and comments as sincere and genuine. [ 29 ] I find Mr. Stock has suffered actual prejudice from the delay in this case.

Conclusion : [ 30 ] While 13.5 months is outside the guidelines set out by the various courts for a

summary conviction matter to come to

trial, I have to consider the totality of the delay and the reasons for it. [ 31 ] In this case, I find much of the overall delay – a total of 27.5 months – which has resulted in prejudice to Mr. Stock’s security interests, was in large part Defence driven. From Mr. Stock’s very first appearance in court, the Crown was ready to move the matter forward. Mr. Stock needed an extra three and a half months and 3 additional court appearances before counsel attended.

Once the Crown pre-trial was held on September 17 th , instead of completing the judicial pre-trial on the same date, the matter was adjourned at the request of Defence for an extra month. Once the trial dates were fixed, then Defence brought the matter forward but chose the latter of the 3 selected dates, which suited him because he was on vacation in July. [ 32 ] I have already discussed and analyzed the reasons for the adjournment of the two trial dates – one at the Crown request and one at the behest of the Defence. All of these considerations must considered in a

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b) analysis. [ 33 ] Certainly, the Court is not faulting counsel Mr. Burke, for his conduct in this case. Mr. Burke quite properly notified the Crown and the court of his client abandoning the constitutional challenge well in advance of the trial. The early notice allowed the administration of justice to reallocate the July trial dates for another case. As well, Defence counsel unavailability to proceed with the trial on December 2, 2010, because he was sick was unforeseen and unavoidable. [ 34 ] However, in view of the totality of the delay and the reasons for the delay, I do not find Mr. Stock’s

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b) rights to have a trial within a reasonable time have been breached even though I have found actual prejudice. [ 35 ] The application is dismissed and the matter shall proceed to trial on August 15, 2011. Released: June 2, 2011 Justice M. Wong