R. v. Archer-Lyons, 2011 ONCJ 569

COURT FILE No.: Toronto Region Citation: R. v. Archer-Lyons , 2011 ONCJ 569 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M. Savage, ) for the Crown ) — AND — ) ) ) JAVAN ARCHER-LYONS, JEREMIAH JACKSON, CHANTELLE FREDERICK, RAY MOSES ) L. Pace, M. Bornfreund, C. Angelini, J.

Prince ) for the accused ) ) ) ) HEARD: August 19, 29, October 31, 2011 FELDMAN J.: [ 1 ] The defendants are charged as follows: Javan Archer-Lyons with 2 counts of Fraudulent Use of Credit Card; Jeremiah Jackson with 3 counts of Fraud under $5000 and one count of Fraudulent Use of Credit Card; Chanelle Frederick with 2 counts of Fraud under $5000 and one count of Fraudulent Use of Credit Card; Ray Moses with 2 counts of Fraud under $5000, one count of Fraudulent Use of Credit Card and another of Possession under $5000. [ 2 ] Their trial is set for 5 days on November 1, 2, 3, 7 and 8, 2011.

They have each brought an application under s. 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings on the basis that their s. 11(

b) rights to be tried within a reasonable time has been infringed. The Allegations [ 3 ] It is alleged that on May 13, 2010, Jeremiah Jackson, then a part-time casher at Wal Mart Canada, allowed others, including Chanelle Frederick and Ray Moses, to purchase gift cards and other merchandise with counterfeit credit card numbers as tender. [ 4 ] On May 13, Mr. Jackson allowed suspects to make four purchases of merchandise using fraudulent credit card numbers. [ 5 ] On May 15, Mr. Jackson permitted an unidentified suspect to attempt several transactions with counterfeit credit cards.

Only one transaction was successful. [ 6 ] Mr. Jackson was arrested on June 6 while at work. His blackberry indicated that unidentified persons, later determined to be Ms. Frederick and Mr. Lyons were on their way to the store. They entered Wal Mart and, unable to find Jackson, returned to their car and were arrested along with Mr. Moses who was inside the vehicle. At the time, Moses was in possession of an income tax refund cheque in the name of a person who lived in his apartment building this without her consent. Mr. Archer-Lyons had two fraudulent credit cards on his person, while Ms.

Frederick had one such card. [ 7 ] There are a significant number of documents and witnesses, as well as surveillance evidence that were compiled during an investigation that took some time. History of the Proceedings [ 8 ] The information was sworn on July 7, 2010. The defendants made their first appearance on July 8. In court, the Crown described the disclosure as large and asked for 2 weeks to organize it. On July 22, only counsel for Mr. Moses appeared and asked that the matter go to August 12.

There were no charge screening forms available to permit legal aid applications. [ 9 ] On August 12, substantial disclosure, including the charge screening forms, was provided to all accused. On September 9, the accused appeared through duty counsel. The defendant had obtained legal aid certificates, but not all of them had fully retained counsel. Surveillance DVDs were ready but could only be released to their lawyers. [ 10 ] The matter went to October 1 to allow for all accused to retain counsel and conduct Crown pre-trials. On that date counsel indicated that they were all retained. The DVDs were disclosed.

A judicial pre-trial [JPT] could not be set as three counsel had not yet conducted Crown pre-trials. On October 15 it was indicated that a JPT date of November 18 was the earliest date upon which counsel could agree. On that date, one counsel did not attend so that the proceeding was adjourned. On November 24, the JPT was conducted and the earlier noted trial dates were set. Additional disclosure was provided. Legal Principles [ 11 ]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable

time. The primary purpose of this

section is to protect the individual rights of those charged. This right contemplates security of theperson, as well as their liberty and fair trial interests. This

section also weighs in the balance society’s secondary interest in ensuring thataccused persons are tried promptly and fairly on the merits: R. v. Morin, 1992 Can LII 89 (SCC), [1992] 1 S.C.R. 771; R. v. Quershi, (ON CA), (2004), 190 C.C.C. (3d) 453 (Ont.

C.A.). [12] The principles to be applied in a stay application for delay are well known and are set out in Morin, supra, which directs thetrial court to consider four factors: length of delay, reasons for the delay, waiver of time periods and prejudice. [13] The reasonableness of any delay is determined by a balancing of these four factors, taking into account the totality ofcircumstances, including any explanations for delay. The burden of proof is on the Applicant to establish on a balance of probabilitiesthat his or her right to be tried within a reasonable time was infringed.

Analysis Operative Delay [14] The operative delay here from swearing of the Information until trial is approximately 16 months, warranting, as concededby the Crown, an inquiry into its reasonableness. Waiver [15] The defence concedes waiver of one week between the two JPT dates, a negligible period of time. Inherent Time Requirements [16] The intake period is considered neutral time, except for any portion that is unnecessarily prolonged.

For a relativelyuncomplicated case, it is the experience in this jurisdiction that a time frame of 2-3 months to complete disclosure and conduct a judicialpre-trial is acceptable and is deducted from the total length of the delay: R. v. McCourt, [2005] O.J. No. 6023 (Ont. C.J.); R. v. Wilson,[2005] O.J. No. 152 (Ont. C.J.). [17] The collection of evidence here, including surveillance evidence, and interviewing of civilian witnesses in this case tookseveral days. The disclosure was described as voluminous. This prosecution is dependent on direct and circumstantial evidence. It ispossible identity is at issue.

This multi-accused case is neither uncomplicated, nor straightforward, as indicated in the setting aside of 5consecutive days for trial, in this court’s experience, difficult to provide in one of the busiest criminal jurisdictions in the province. [18] The charge screening forms were available on August 12. The surveillance DVDs were ready for pick up on September 9,but not all counsel were on the record until October 1. A date for a JPT could not be set until Crown pre-trials were held.

All counselwere unable to co-ordinate the conduct of a JPT until November 18. [19] In these circumstances, given the size and nature of this case, an intake period of 4 months is, in my view, reasonable andshould be considered neutral time. Limits on Institutional Resources [20] The period of institutional delay runs from the time both parties are ready for trial, but the system cannot accommodatethem. In this case, the trial date was fixed 11 ½ months after the parties were ready for trial. An additional approximate ½ month ofinstitutional delay was taken up in the setting of a JPT.

This falls outside the 8 to 10 month guideline recommended in Morin. [21] It is significant that in Morin, the court noted the government’s constitutional obligation to commit sufficient resources toprevent unreasonable delay and asserted that there was a point in time at which the court would no longer tolerate delay based on theplea of inadequate resources. [22] Rosenberg J.A. found no reason to depart from the guidelines in R. v. Kovacs-Tatar, (ON CA), [2004]O.J. No. 4756 (Ont. C.A.), but went on to caution that the Morin guidelines should not be given the force of “a judicially developedlimitation period”.

In Kovacs-Tatar, there was 12 months of institutional delay. The court found this delay did not greatly exceed thejudicial guidelines for matters in provincial court, and concluded it was not unreasonable in the circumstances. [23] The Supreme Court has recently confirmed the judicial guideline of 8 to 10 months for this court in R. v. Godin, 2009 SCC26 , [2009] S.C.J. No. 26.

It also recognized that these guidelines were not limitation periods and that “deviations of severalmonths in either direction can be justified by the presence or absence of prejudice”: see also Morin, at p. 28. [24] The institutional delay in this case is approximately 12 months. In light of the guideline, this is close to the line ofunreasonable delay. In this regard, the Ontario Court of Appeal said in R. v. Campagnaro, [2005] O.J. No. 4880: “Where the institutional delay is on the edge of the constitutionally tolerable, the issue of prejudice will be central to the outcome of thes. 11(

b) analysis. Prejudice can only be assessed on a case-by-case basis. We stress the need for evidentiary support for allegations ofprejudice made by the applicant.” Prejudice [25] The relevant prejudice in an s. 11(

b) analysis is, “that which is due to the delay in the proceedings, not that caused by beingcharged with a criminal offence.”: R. v. Kovacs-Tatar. [26] Prejudice can be inferred from the length of the delay or be specific to the applicants, if established by the evidence:R.v.Campagnaro. The longer an accused must wait for trial, the greater the likelihood prejudice will be inferred and shape the use of the

administrative guideline in the balancing of the Morin factors. It is by the presence or absence of prejudice that the application of theguideline will then be influenced in either direction: R. v. Morin; R. v. Tricker, [2008] O.J. No. 4147 (Ont. C.J.). [27] The defendants have asserted prejudice to their security interests.

In Morin, Sopinka J. said that: “Prejudice to the accused’s security interest can be shown by evidence of ongoing stress or damage to reputation as a result of overlongexposure to the vexations and vicissitudes of a pending criminal accusation.” [28] In concurring reasons, McLachlin J., as she then was, wrote that: “Where the accused has suffered clear prejudice, which cannot otherwise be remedied, the balance may tip in the accused’s favour, andjustice may require a stay.” [29] Prejudice in relation to security interests contemplates, as well, overlong subjection to the stress and anxiety arising fromdisruption of work, in addition to financial and legal costs: R. v.

Kovacs-Tatar;, R. v. Rahey (1987), (SCC), 33 C.C.C.(3d) 289 (S.C.C.). Evidence of Prejudice Javan Archer-Lyons [30] Mr. Archer-Lyons is in a common law relationship with Chanelle Frederick with whom he has two children under the ageof 5. He is on a release requiring him to remain within the province. He deposed in an affidavit that being required by his bail terms notto attend Wal Mart, his costs for family essentials has increased. This and the fact he and his wife cannot leave the province has, he sayscaused friction between them.

He claims to be extremely embarrassed by these charges and says he is treated differently by his friendsbecause of them. He did not say in the affidavit what affect his criminal record had on his feelings or his relationships. [31] The Applicant also deposed that he and Ms. Frederick argue constantly because of the charges and he suffers frommigraines, sleep deprivation, stress, waves of depression, anxiety, back pains, joint pains, heart/muscle pains, loss of appetite andfrequent headaches, symptoms rarely suffered, he says, prior to being charged.

He has neither sought counselling nor taken medicationfor his purported multiple symptoms. There is no independent evidence to back up these countless assertions. I view this evidence asself-serving. [32] The Applicant also says he has been denied employment and his career plans have had to be put on hold, diminishing hisability to provide for his family. He made reference in his testimony to having passed an exam in June 2011 to obtain a provinciallicense to sell life insurance.

This, he says, will make him eligible to work at American Income Life which is willing to sponsor hislicense with the Financial Services Commission of Ontario in the event his charges are dropped, charges he chose not to disclose initiallyto either his sponsor or the Commission. He will be in a position next month to learn whether the Commission is inclined to grant him alicense, despite his troubling antecedents. Chanelle Frederick [33] Ms. Frederick is 24 years old and a stay-at-home mother.

She deposes that her stress, frustration and anxiety have beencompounded by delay that has held her back from becoming a licensed security guard, having passed a five-week program at the Centrefor Security and Management Inc., and that has limited other job possibilities. The security work is open once these charges are resolvedin her favour. She also says the stress has affected her marriage, restricted her ability to travel and affected her social life. Although shehas counsel, she claims not to have known about bail variations. Jeremiah Jackson [34] Mr. Jackson is 21 years old.

He testified that the stress of all this has made him lose 10 lbs., at least in part because hewakes up in the middle of the night thinking about the case. He also works out 3 times per week. [35] He would like to study psychology at George Brown College, but says these charges have kept him from doing so in theevent he is asked if he has ever been convicted. The defendant has no criminal record. He claims also not to have tried to obtainemployment for fear he would be rejected in light of these charges. He says he was told his charges would prevent him from beingaccepted into the army.

He has provided no support for any of his questionable assertions and I would not rely on his evidence. Ray Moses [36] Mr. Moses is 24 years old and has a lengthy and serious criminal record. He is presently employed. He deposed in anaffidavit that he was unable to be bonded as a debt collector because of his charges and claims his criminal antecedents were not anobstacle. This is doubtful.

He also complained that his bail restrictions prevented him from visiting his family in New York because hewas unable to apply for a bail variation in time. [37] This litany of complaints by the Applicants suffers from embellishment and lack of evidentiary support. They are rooted inthe defendants having been criminally charged. That is not to say that I do not weigh the inferred prejudice that is inherent in delay that,as here, is close to the constitutional line. [38] Mr. Archer-Lyons and Ms.

Frederick have potential employment opportunities available once these charges are resolved intheir favour, if that is to be the case. Mr. Jackson’s evidence is unworthy of credit. Mr. Moses is employed. His evidence wasunimpressive. Balancing of Interests

[39] In Morin, the court held that an accused’s interest in a trial within a reasonable time must be balanced against society’sinterests in law enforcement that by its nature is adverse to the interests of the accused: R. v.

Conway, (SCC), [1989] 1S.C.R. 1659. [40] It is clear that while the presence or absence of prejudice affects the strength of the applicant’s interest in a trial within areasonable time, the seriousness of the offence strengthens society’s interest in bringing the accused to trial. [41] The multiple charges in this case indicate collective planning and an inferred intent to continue the fraudulent conduct,interrupted by this investigation, rooted in a breach of trust. This misconduct is difficult to detect rendering the employer particularlyvulnerable. I view the offences as serious. [42] This is a close case.

This multi-accused prosecution has generated voluminous disclosure and requires significant courtresources, in my experience in this jurisdiction in relation to questions of institutional delay, distinguishing it from straightforward, singledefendant cases: R. v. Dines, [2009] O.J. No. 1368 (Ont.

C.J.), at para. 50. [43] In my view, the institutional delay occasioned as a result is in the circumstances here unfortunately, but not unacceptablyoutside the judicial guideline, particularly in light of the fact that the bulk of any inferred prejudice attaching to the Applicants isattributable to their having been charged.

I have, as well, weighed in the balance the nature and gravity of the charges and society’sinterest in having such matters resolved on their merits. [44] On the evidence, the Applicants have not satisfied me on a balance of probabilities that the delay here is unreasonable andthat their s. 11(

b) rights have been infringed warranting a stay of proceedings. The applications are dismissed. Released: October 31, 2011 Signed: “Justice L. Feldman”