R. v. Pierre, 2011 ONCJ 254

Citation: R. v. Pierre , 2011 ONCJ 254 Ontario Court of Justice Provincial Offences Court Her Majesty the Queen v. Raphael Pierre (Applicant) 11B Charter Motion Decision Justice of the Peace G. Manno May 13, 2011 at Mississauga, Ontario Provincial Offences Court Appearances: R. Craig Counsel for the Prosecution M. Tchavoshi Agent for Defendant Raphael Pierre [ 1 ] This is an application under s. 11(

b) of the Charter for a stay of proceedings. [ 2 ]

Section 11(

b) of the Charter seeks to protect both the rights of the accused and the rights of society.

[3] It protects three rights of the individual:

i) the accused’s right to security of the person by minimizing the anxiety and stigma of criminal proceedings, ii) the accused’s right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions, and iii) the accused’s right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. [4]

Section 11(

b) also seeks to protect two societal interests:

i) the public’s interest in having our laws enforced by having those who break the law tried quickly, and ii) the public’s interest in having those accused of crime dealt with fairly. [5] To decide whether there has been an infringement of s. 11(b), the court must balance the individual and society goals, in the contextof the length and causes of the delay. [6] Although the court is to consider both individual and societal interests, the primary purpose of s 11(

b) of the Charter is the protectionof the interests of the individual. [7] In R. v. Morin (19920, (SCC), 71 C.C.C. (3d) 1 (S.C.C.), the Supreme Court of Canada set out a framework for thisjudicial balancing. Four factors must be considered: 1) the length of the delay; 2) waiver of time periods; 3) 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; 4) prejudice to the accused Case Background and Time Periods: (1) [8] On December 30th, 2008 the Defendant Mr. Raphael Pierre was charged under 142(2) of the Highway Traffic Act, a

Part I

offence, whose short form reads start from stop position – not in safety. Mr. Pierre is a 62 year old gentleman (who will reach 63 yearsof age on June 17th of this year), if convicted, faces a fine of $85.00 or $110 after costs and will be levied 2 points by the Ministry ofTransportation. He works as a mechanic but indicated that he was taking night school courses in financial management/planning in abuilding near the accident scene. [9] On January 9th, 2009 the Defendant completed the Notice of Intention to Appear to defend against the charge and asked for that trialto be scheduled in the English language.

On that same date, the Defendant was handed the Notice of Trial that indicated a scheduled trial date of November 5th, 2009. [10] On October 22, 2009, the Agent requested Disclosure from the Prosecution [11] On November 5th, 2009 Disclosure was handed to the Agent and the Agent/Defendant requested and received an adjournment toFebruary 8, 2010 for the purposes of reviewing the disclosure and to prepare for trial. [12] On February 8th, 2010 the trial began but due to the length of the matter, time ran out and the trial was set to continue on June 16,2010. [13] The trial resumed on June 16, 2010 but again, did not complete and as a result was put over for continuation, this time to October15, 2010. [14] On October 15, 2010 the matter was put over to October 22, 2010 to find two full days dedicated to completion of this Trial.

TheDefendant filed an 11B motion but it did not properly adhere to the notice provisions and the matter was referred to the next continuationdate where the notice periods were to have been adhered to and satisfied. Additionally, the Court decided out of respect for the witness’sschedule it was more important to continue with the Trial evidence first and hear the motion at the end of the evidence submission toallow witnesses not to be inconvenienced any further.

All parties agreed with this approach. [15] The trial resumed on January 27th, 2011 and completed on January 28th, 2011 whereupon the Motion under 11B of the Charter ofRights and Freedoms was tendered to the Court as properly filed, for consideration. [16] In order to consider all of the 11B materials and arguments as well as consider the evidence and transcripts for the underlying Trial, the decision on all outstanding matters was scheduled for May 13th, 2011.

Position of the Defendant [17] The Defendant in Exhibit 2 took the position that the trial took a sum total of 25 months or 761 days to complete, counting from the Offence Date of December 30th, 2008 to January 28, 2011. The Defendant took the position that this length of delay was unreasonableand as a result asked for relief under the Charter of Rights and Freedoms, specifically relief provided by

section 11B – a stay of thecharge before the Court. [18] Furthermore, the Defendant had concluded that as a result of this unreasonable delay, they suffered prejudice. Specifically theyargued that they were required to have a ‘clean license’ in order to be employed as a mechanic. He argued that the stress he faced causedhim to have a ‘dulled’ memory and he was economically affected by the loss of employment, the costs of his Defence as well as theincidental costs including over $ 800 he had to pay to obtain court transcripts in order to file his Motion and defend against his charges.

Through his Agent, the Defendant argued that he was unable to plan his family or employment with any degree of certainty as a result ofthis overhanging charge. The Defendant asked the Court to consider all of the inferred prejudice as well as the specific prejudice hehighlighted for the Court when he took the witness stand to give viva voce evidence. [19] The Defendant provided a number of cases to the Court for consideration to support its position. Those cases are: R.v. Conway (1989) (SCC), S.C.J. No. 70; Regina v. Pusic et al. (1996) (ON SC), O.J. No. 3329; R.v. Satkunananthan (2001) (ON CA), O.J.

No. 1019; R. v. Mastroianni,

(2000) O.J. No. 3227; R. v. Formosa (1998)O.J. No. 4674; R. v. Morin (1992) (SCC), S.C.J. No. 25; R. v. Rahey (1987) (SCC), 1 S.C.R. 588; R. v.Mills (1986) (SCC), S.C.J. No. 39; R. V. Askov (1990) (SCC), 2 S.C.R. 1199; R. v. KennethWilliamson, O.C.A. February 7, 8, 2000; R. v. Qureshi (2004) (ON CA), O.J. No. 4711. TheCourt has considered these cases but has also been careful to distinguish many of these cases from the case at hand. In brief, In otherwords many have to do with delay Motions arising from criminal Offences as opposed to Regulatory Offences.

Position of the Prosecution [20] The Prosecution did not take a significantly different view of the passage of time for this Trial. Using their calculation they told theCourt that 759 days had transpired as opposed to the 761 days as calculated by the Defendant (pg. 6 of January 28, 2011 Transcript). [21] The Prosecution however, disputed the reason for all of the delay and had issue with the Defendant’s submissions regardingprejudice.

In the Prosecution’s submissions the Notice of Trial was handed to the Defendant in an expeditious manner and a Trial date of November 5th, 2009 represented some 8 months following a normally accepted two month intake period. Though it is not a short period

of time, it is also not considered excessive according to the Prosecution for Mississauga. [22] Upon the scheduled Trial Date, the Defendant asked for the adjournment and that time period should not be the responsibility of theProsecution. [23] The Prosecution then argued that the continuation dates were the direct result of the Agent taking an excessive amount of time withhis questioning of witnesses. Ms.

Craig was somewhat perplexed as to why a relatively simple part one offence with three witnesses andno significant complex or contentious issues or expert testimony should require this amount of time to complete. The Prosecutor’sposition was that the Court should assign the responsibility for the time required to hear the matter to the Defendant’s side of the ledger.

She further argued that the Defendant did not hire the Agent during much of 2009 until a few weeks before the scheduled Trial and thatdelay should also be the fault of the Defendant and not the Prosecution. [24] On cross-examination, the Prosecutor established that the Defendant did not lose their job as a result of the collision nor did he haveany reported health conditions or ill effects as a result of the accident.

She argued that the missed work dates that the Defendant had tobear as a result of the Trial dates were well known in advance and that the Defendant could make adequate plans to be in Court if he sodesired. She also argued that although the Defendant complained of a ‘dulled’ memory, he appeared to have a distinct recollection of thedetails of the Offence and what happened on that fateful evening.

The Prosecution asked the Court to recall that the Defendant did notpreface any of his statements with the words “I do not recall” or “I don’t know” or “I do not remember” all possible indications of aperson with memory issues arising from the passage of time and/or some other cause not known to this Court. [25] The Prosecution also wished to remind the Court that Prejudice as contemplated by the Courts was not meant to cover or preventeconomic consequence. In other words, the Prosecution argued that the cost of transcripts and employment income were not and shouldnot be the prime concern of the Courts. Mdme.

Prosecutor reminded the Court that the Defendant did not lose his mechanics license orhis driver’s license in this instance and unlike a criminal charge, faced no societal prejudice or the stigma of incarceration or a criminalrecord. She argued that though the Court can infer prejudice, there was no indication of it throughout the trial, a trial that was madeexcessively long by the actions of the Defendant’s Agent and not the Prosecution. [26] The Prosecution reminded the Court that an 11B analysis should not focus on monetary gain or loss.

In other words the Defendantargues that he has faced economic loss as a result of the length of the Trial. She argued that under R. v. Morin, the prejudice is notestablished on economic grounds and the Criminal Code is largely silent on economic prejudice per se. As to the costs of transcripts, theProsecution submitted the argument that the Transcripts were ordered much earlier than the decision to proceed with an 11B Motion andthere was no requirement to order those transcripts.

If the decision to purchase the transcript was made by the Defendant, then that wasclearly their choice and not an imposition made by the Court or the Prosecution. Therefore, that cost should not be included in anyargument regarding prejudice. [27] Finally the Prosecution responded to the case authorities tendered by the Defendant in support its position. The cases are mostlyfrom the Criminal courts and not from the regulatory Courts. Mdme. Prosecutor implied that the Court should place little weight onthese cases. As stated in R.v.

Morin above, (page 41 of that case submission) the primary purpose of an 11B analysis is to protect anindividual accused’s rights to security, liberty, right to a fair trial. A secondary interest is to ensure the accused is treated fairly andhumanely etc. In this case the Defendant faced no criminal record, or loss of liberty either before the Trial or after upon conviction. There is no stigma to the charge or from a conviction. There has been no tainting of recollection by the Witness, the Officer or theDefendant; the only three witnesses in this part-one Trial.

The case for an 11B consideration here is based primarily on the total timetaken to deal with this matter. The stigma and consequences from most of the charges in criminal court are considered more damaging than those arising from mostconvictions in a regulatory Court. In His Honour Libman’s book, Libman on Regulatory Offences in Canada, Earlscourt Legal PressInc., 2002, pg. 10-2 a distinction is highlighted between the regulatory Courts and the criminal Courts. “In R. v.

Wholesale Travel Group Inc., Cory, J. explained that “the contextual approach requires that regulatory and criminal offencesbe treated differently for the purposes of Charter Review”. As a result, regulatory offences are subject to a lower standard of Charterscrutiny, given licensing and “vulnerability justifications” in this regard.” The Prosecution also tendered Sharma v. the Queen et al. (SCC), 71 CCC (3d) 184; R. v. Dumont OSCJ, 1999. Analysis of the Time Period [28] Using the Morin framework found in paragraph 7 above, let us now discuss the time periods as well as the delays encountered inthis Trial.

Length of Delay [29] A delay of 761 days using the Defendant’s count or even 759 days by the Prosecution’s reckoning on a Part one offence is certainlya delay that merits inquiry. Certainly each delay must be evaluated on a case by case basis and the Court must be careful whenemploying guidelines. Criminal case law in this jurisdiction for the longest time provided guidelines of 8 to 10 months in a standard

criminal matter before delay would be examined. Some years ago, judicial stays were granted frequently on the basis of time delay (and inferred prejudice) when there weren’t enough institutional and judicial resources. In general, resources improved, the delays thankfully became less frequent and shorter. There has been case law in the regulatory courts since (see R. v. Berbatiotis, Justice Andre,

(2007) O.J. No. 4683 where on appeal, the delay which exceeded the 10 month upper ceiling was deemed acceptable in the absence of a meaningful discussion of specific prejudice during that trial. The guideline is simply a guideline and not a limit for each and every case. This is especially true for a regulatory Court where the stakes and/or penalties are generally lower for a Defendant. Waiver of Time periods [30] There was no evidence that the Defendant or his Agent waived any of their 11B rights during any of the relevant time periods.

Reasons for the Delay Inherent time requirements of the Trial [31] Certainly in this jurisdiction, an intake period for processing of paperwork, establish a trial date, get disclosure prepared etc. would be considered neutral time and would take up to two months. Certainly in a Highway Traffic Matter, a part one offence with little complication that estimate can be lowered. A trial date of some 10 months later is provided to the Defendant. Using a one to two month period for the Intake neutral period, that would result in a wait of 8-9 months which is on the high side but not unreasonable in this jurisdiction.

Actions of the Defendant and Prosecution [32] It is here that the Court finds that there was abnormal delay. However, the Court attributes that delay to the Defendant. Once the trial date was selected the Defendant did nothing to order disclosure or contact the Prosecutor for almost 10 months.

Admittedly, the Defendant did not hire his representation until a few weeks before the scheduled Trial Date as well - some two weeks prior to the scheduled trial date of November 5, 2009, Disclosure was finally requested and the Defendant requested an adjournment to another date to review this disclosure and prepare for Trial. That Trial Date was February 8 th , 2010.

Though 90 days later, there was no indication on the transcripts that the Defendant objected to this delay and no attempts were made to secure an earlier date. [33] Following the start of the Trial on February 8 th , 2010, the Trial and the Defence took an unusual twist that was unanticipated by the Prosecutor or the Court. The Defendant’s questioning of the witnesses took an inordinate amount of time. (Through the Agent) Clearly the Agent/Defendant was within his rights to ask as many questions as he saw fit.

The Court would not be within its jurisdiction to truncate such an inquiry as it would be considered improper. It was clear from the Prosecution’s comments that the Prosecution was frustrated with the volume and the appropriateness of some of the questions. The Court had expressed some concerns at various points throughout the trial about the clarity of the questions asked by the Defence. It was unclear whether this excessive time was the result of the volume of questions on the part of the Defendant and/or whether the language barrier played a role in the delay.

The record makes note of the fact that the first witness spoke English but whose first language was Cantonese (or mandarin). The Agent’s first language was also not English and at various points it appeared that the witness and other parties had some difficulty understanding the questions posed. The Defendant himself spoke English but admitted later that his first language was or is French. He too spoke the English language in a broken manner.

It was challenging at times for the parties to communicate clearly and effectively however, despite the Court’s invitation to appoint an Interpreter, the parties had decided that an Interpreter would not be required. It was clear that additional Court time was required to gain clarity in the questions asked. These factors may have contributed to the delay in the Trial which took another day on October 5 th , 2010 and yet another two full days in January 27 and 28 th , in 2011 to complete.

The Court would attribute most of this delay as a result of the Agent’s volume of questions for the witnesses and in this search for clarity in questions posed. In most part-one offence trials where there are two witnesses, one being the charging officer, one full tier would have been more than adequate to complete the matter and there would be no need for written reasons. This is clearly not the case here.

As a result, the Court would attribute the delay from November 5 th , 2009 to January 27 th and 28 th , 2011 to be the responsibility of the Defendant and could not be attributed to the actions of the Prosecution or due to the scheduling efforts of the Courts Administration. Even if the Court were to include the time from the initial trial date of November 5 th , 2009 to the first Trial date set of February 8, 2010 and attribute that to the Prosecution, the total time to Trial would have been a little over 13 months. After a two month intake period of neutral time, that leaves a remainder of 11 months.

Still, it would be difficult to attribute that 90 day period between November and February 8 th , 2010 to the Prosecution since it was at the request of the Defendant. The 11 months or so may seem long but would not be considered excessive or abusive in the jurisdiction – it would simply form the basis for the appropriate investigation into whether or not prejudice has been created as a result of the delay.

That analysis appears below. [34] For the Prosecution’s part, the Court could attribute a matter of days if not a few weeks to the Prosecution for delay at providing some of the Disclosure to the Defendant’s Agent upon request as argued during the Motion. However, within the framework of this analysis, the statistical effect of a few weeks will not be a determining factor where the length of delay exceeds 761 or 759 days (latter

being the Prosecutorial estimate of delay). Limits on Institutional Resources [35] Certainly the total time this matter took to conclude would be of concern to most parties considering the complexity of the matterand the fact that it is a part one offence under the highway traffic act. Were there limits on institutional resources? The obvious answeris that there are always limits on resources in any area in any Court.

In this particular instance due to the fact that this matter wouldrequire the dedication of two full days to complete when combined with the fact that part one matters are scheduled in many tiers formany months ahead, one can quickly come to the conclusion that to find two full days on any docket is a challenge. This is in part why the matter had to be scheduled from October 15, 2010 to January 27th and 28th in 2011. That delay was necessary in order to secure twofull free days to complete the trial.

Still, there is no logical reason why this matter should have required two full days on top of what wasalready spent on the trial to that point. The Court concludes that once again the requirement stems from the actions of the Defendant andAgent and not as a result of improper scheduling or as a result of a delay that emanated from the Court or the Prosecutor. However, thisdelay occurred and should be examined in the context of whether or not it led to any prejudice; inferred or actual as called by theDefence. Prejudice [36] In the case of R. v.

Jayasekera, 2009 ONCJ 244, Justice Robertson says Prejudice to the accused can be either:

i) inferred as a result of the length of the delay or ii) actual, based on evidence called by the defence or dispelled by evidence called by the Crown. The prejudice that is of concern in a

section 11(

b) analysis is not prejudice associated with the laying of criminal charges, but theprejudice arising from the “delay” in processing or disposing of the charges; Rahey v. the Queen, (SCC), [1987]1S.C.R. 588 at 624. The focus is prejudice emanating from a situation “prolonged”, as opposed to the situation itself. See also Hill, J. inRegina v. Silveira [1998] O.J. No. 1622 (O.C.J. (General Division)). [37] The defence submitted that prejudice to the accused should be inferred from the length of the delay in this matter.

The longer thedelay, the more likely that inference should or could be drawn. [38] Balancing all of the arguments this Court does not find any significant inferred prejudice to have been suffered by the Defendant inthis case. In terms of actual prejudice, he has neither lost his freedom during the period, been subject to any restrictive conditions norlosing any license or job as a result of the length of the delay.

Certainly he was represented by a competent Agent who could haveappeared on many of the Court visits on his behalf and was not required to take the stand during the trial by either the Court or theProsecutor. The Court saw no evidence of a failed memory or inability to recall salient details or the events of that evening when he wascharged. In R. v. Jayaskera, the defendant faced a criminal charge in a Trial that was delayed by 17.5 months. Justice Robertson toofound that the prejudice was limited to an economic one as is the case here.

Of course the Defendant has significant trial costs in theform of duplication of Transcripts and payment to the Agent for representation as well as time to attend Court. [39] However, considering the reasons for the delays outlined above and in balancing the interests of society and the rights of theindividual to be heard on the merits of the case, combined with the absence of any significant prejudice, the application for a stay ofproceedings under 11B of the Charter is hereby denied. This Motion is dismissed. Gerry Manno Justice of the Peace Released May 13, 2011