R. v. Soltani, 2010 ONCJ 770

Citation: R. v. Soltani , 2010 ONCJ 770 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MANOURCHEHR SOLTANI Before Justice Finnestad Heard on October 29 and November 23, 2010 Reasons for Judgment released on December 6, 2010 P. Kelly ...................................................................................................................... for the Crown M.

Webb .............................................................................. for the accused Manourchehr Soltani FINNESTAD J.: [ 1 ] Manourchehr Soltani is charged with eight offences including assaults, weapons possession and use, and death threats. The alleged victim is his wife. [ 2 ] Mr. Soltani has brought an application for a stay of proceedings on the basis of a violation of his right to trial within a reasonable time, as guaranteed by

section 11(

b) of the Canadian Charter of Rights and Freedoms . [ 3 ] The information was sworn on August 7, 2009. His trial is set for January 24, 2011, some 17 months later. Clearly this passage of time calls for scrutiny. This history of the matter is as follows. [ 4 ] The information was sworn August 7, 2009. Mr. Soltani’s first appearance after his bail hearing was on September 24, 2009. He was given paper disclosure and through Duty Counsel requested a one-month adjournment. No reason was given. On the second appearance on October 13, 2009 he was advised that a DVD was available in the Crown brief.

Duty Counsel conveyed Mr. Soltani’s request for an adjournment of another month. Again, no reason was given for the adjournment. On the third appearance on November 9, 2009, Duty Counsel advised that Mr. Soltani was trying to gather funds for a private retainer and requested a further three- week adjournment. On the fourth appearance on November 30, 2009 Duty Counsel advised that Mr. Soltani had just been approved for Legal Aid and had already spoken to several lawyers. He believed that if given three weeks he could have counsel retained.

The Crown Attorney protested the passage of time and any further delays, and suggested that the matter return in one week. The justice of the Peace adjourned the matter for two weeks. [ 5 ] On the fifth appearance on December 14, 2009, over four months since the swearing of the Information, Mr. Soltani was represented by counsel. Ms. Webb advised that she had been retained only a few days prior and was still in the process of reviewing disclosure.

Additionally she had just received that day the DVD that had been sitting in the Crown brief since October 13, 2009, and obviously needed to review that before conducting a Crown pre-trial. She requested two weeks. [ 6 ] On the sixth appearance on December 29, 2009 Ms. Webb made the same representations that she had just been retained and was reviewing the disclosure. She asked for a further two-week remand. [ 7 ] On the seventh appearance on January 12, 2010, Ms. Webb advised that she had hoped to have a Crown pre-trial on that day, but the Crown brief could not be located.

She requested a further two-week adjournment in order to conduct a pre-trial on that date. [ 8 ] On the eighth appearance on January 26, 2010, counsel conducted a Crown pre-trial and set the date scheduled by the trial co-ordinator for judicial pre-trial, on February 16, 2010. On that date an in-court judicial pre-trial was held. Given that the matter would involve the calling of four to five Crown witnesses, one possible defence witness, and involve a

section 8 voir dire and submissions relating thereto, the matter was scheduled for one full day. The date provided by the trial co-ordinator was January 24, 2011, some eleven months and one week later [ 9 ] In consideration of the argument for a stay of proceedings advanced, it is necessary to evaluate the time periods involved in light of the factors set out by the Supreme Court of Canada in R. v Morin (1992), 1992 CanLII 89 (SCC) , 71 C.C.C. (3d) 1. Length of the Delay

[ 10 ] The total time period from swearing of the information to trial is almost 17 ¾ months. It is clear that from the last set date appearance to the pending trial there are 11 months and 1 week of institutional delay. What is less clear is the apportionment of time to be made of the six months and nine days between the swearing of the information and the setting of the trial date. Waiver of Time Periods [ 11 ] There is no waiver alleged or demonstrated. Reasons for the Delay (

a) Inherent Time Requirements [ 12 ] The Crown had met its initial disclosure obligations by October 13, 2009, when the DVD was in the brief and waiting to be received by counsel for Mr. Soltani. Some further items of disclosure were requested once counsel was retained but they are not of a nature that would delay the setting of the trial date, and counsel quite properly set the trial date without insisting on provision of those items first. The “intake” period in this case ran from August 7, 2009 to January 26, 2010 when the parties were ready and a judicial pre- trial had to be scheduled.

This period of five months and 19 days is very long for an intake period and I do not view all of this as being due to the inherent time requirements of the case. (

b) Actions of the Accused [ 13 ] Mr. Soltani took a very long time to retain counsel, who made her first appearance on December 14, over four months after the Information was sworn. Twice he requested a full month’s adjournment with no reasons given and no indication of any progress having been made in any efforts to retain counsel. Once he had been granted a Legal Aid certificate he asked for a further three weeks to find a lawyer. Given the Crown protests at how the matter was being delayed, he was given only two weeks for that purpose. There is nothing Mr.

Soltani did in that time period that showed any desire to move the matter forward expeditiously. A reasonable intake period in this situation would have been three months. That should have allowed for disclosure, retainer of counsel, counsel’s review of disclosure and Crown pre-trial. Additionally there was a second two-week remand counsel requested on December 29, for the same reasons she had requested one on the earlier appearance on December 14. That which the matter had been adjourned for the defence to accomplish, had not been done in the interim. This led to a two-week period that was essentially wasted.

While I do not treat the time period in excess of the three months that would constitute a reasonable intake period in this case as “defence delay”, I do treat it as an elongation of the neutral intake period at the request of, and for the benefit of, the defendant. While this does not constitute waiver, it will be relevant ultimately to the question of prejudice. (

c) Actions of the Crown [ 14 ] The Crown did not have a brief in court on January 12, 2010, and accordingly no Crown pre-trial could be held. Ms. Webb requested a two week adjournment in order to hold that Crown pre-trial, which was then held on that next court date. Clearly the Crown bears responsibility for the failure to have a pre-trial held on January 12, 2010. [ 15 ] Mr. Kelly took the position in submissions that this delay should be mitigated by the fact that counsel “only” waited 30 minutes for efforts to find the brief to be made.

However the Crown has an obligation to have its briefs in court ready to go at 10:00 a.m. and often does not. While, if counsel were desperate to move the matter as quickly as possible, she might have waited longer to see what other efforts could be made , there is no obligation on counsel to wait for hours for the Crown to do what it should have done by 10:00. This is by no means a delay attributable to the defence, nor is it a waiver and I do not view it as diminishing Crown responsibility for the adjournment. [ 16 ] Mr.

Kelly further submitted that if the defence had been ready to conduct a Crown pre-trial on Dec 29 , 2009, as was anticipated by the December 14 adjournment, this situation would not have arisen. Further, he argued that there was no need to adjourn the matter for a further two weeks simply to locate the brief. Unlike the Crown, defence counsel are not in this courthouse every day and cannot be expected to be immediately available on the earliest possible return dates. While I do not agree with all of Mr.

Kelly’s arguments concerning the approach to be taken to this period of delay, I am in agreement that there is sufficient merit to some of them that his proposed allocation of one week to the defence and one week to the Crown is a fair one. Each shares some responsibility for the Crown pre-trial not having been done before January 26, 2010. (

d) Lack of Institutional Resources [ 17 ] I am of the view that the delay between January 26, 2010 and the judicial pre-trial of February 16, 2010 is attributable to the lack of judicial resources to conduct such a meeting earlier. That period of institutional delay of three weeks is added to the 11 months and one week from set date to trial for a total institutional delay of 12 months.

When the Crown delay attributable to the missing brief is added in, the total period of operative delay is 12 months and one week. [ 18 ] This total time period exceeds by two months and a week, the outer limits suggested in the Morin guidelines for trial within a reasonable time. In determining whether this excess is such that

section 11 (

b) is violated and the remedy of a stay is called for, it is necessary to consider the question of prejudice and ultimately to balance the interests of the defendant to trial within a reasonable time with society’s interest in trial on the merits.

[ 19 ] Mr. Soltani filed an affidavit, and was cross-examined on it. Since his release on these charges he has been prohibited from having contact with his wife. His time with his 3- or 4-year-old child over more than a year has been only that which third parties have been able to facilitate for him. He has been dependant in this regard on the kindness of family members. He has been required to live with his surety, an uncle, and to take treatment or counselling as directed by his surety.

Clearly these are actual prejudices he has suffered while waiting for this matter to come to trial. [ 20 ] On the other hand, cross-examination made clear a number of things. Mr. Soltani had been unemployed since 2007. He is still not gainfully employed but since living with his uncle he began working unpaid at his hair salon. From there he has moved to working unpaid in a salon in Fairview Mall. Since his training 20 years ago was in this area, he seems to be making progress towards employment for the first time in at least three years. [ 21 ] Further, Mr.

Soltani has been addicted to prescription painkillers since 8 – 12 months prior to his arrest. While he testified that taking drug rehabilitation was not part of his bail order, in fact a review of that order shows one condition to be to “seek and maintain treatment, counselling as required by your surety”. Within two to four weeks of his release on bail he commenced drug rehabilitation with a doctor, and began taking methadone. There is no doubt that compliance with these two conditions of his release has led to a significant improvement in Mr. Soltani’s life. [ 22 ] Mr.

Soltani testified that he has within the past month or so been experiencing nightmares. Concerns that he could not take any medication to deal with these anxieties because of his history of drug abuse were laid to rest the week that this application was heard, when his doctor found a prescription that he could safely be given. At the time of his testifying, he did not know whether it would prove helpful in the long term or not. There was no evidence to suggest the nightmares were attributable any more to the wait for trial than they were to the history of substance abuse, or any other factors. [ 23 ] Mr.

Soltani’s bail conditions have been both a burden and a blessing to him, making it difficult to assess their value as a “prejudice”. There is no doubt that for a father to be removed from his child for a time is a hardship to him, even when visits are facilitated, and the longer that period of time is, the greater the hardship. However, the evidence is that for the year preceding his arrest Mr. Soltani was addicted to painkillers. The time he has spent on bail undergoing rehabilitative treatment has doubtless made him a better father and allowed him to enjoy more fully the time that he does spend with this child.

He has sacrified quantity for quality. His wife’s comments to the Crown about not fearing him and being willing to have him home seem to be tied to the treatment he has undergone over this period of bail. [ 24 ] Mr. Soltani’s right to trial within a reasonable time has to be balanced with society’s interest in having a matter tried on the merits. As prejudice caused by delay increases with the passage of time, so does society’s interest in trial increase with the seriousness of the charges. Here Mr.

Soltani is charged with eight different offences occurring over two separate time periods, involving the use of two different weapons, physical assault and threats of death. The alleged victim is his wife. The Criminal Code provides that it is an aggravating factor on sentence that a victim of an offence is a domestic partner. This is an indication of the seriousness with which our society views allegations of domestic violence. [ 25 ] A balancing of society’s interests and Mr.

Soltani’s rights requires me to weigh the length of time he delayed in retaining counsel (with an intake period twice the normal length derived from his repeated requests for lengthy adjournments), the long-term benefits to him of his conditions of bail and society’s interest in having these serious charges tried on the merits, against the fact that he has been separated from his wife and to some extent his child for over a year, and that the operative delay in this case exceeds the upper guidelines of Morin by just over two months.

After careful contemplation I am not persuaded that the end result is an unreasonable period of time such that there is a violation of Mr. Soltani’s rights that would mandate a stay of proceedings. The application is dismissed. Released: December 6, 2010 Signed: “Justice Finnestad”