R. v. Beharry, 2011 ONCJ 86

COURT FILE No.: Toronto Region Citation: R. v. Beharry, 2011 ONCJ 86ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M. Medeiros, ) for the Crown ) — AND — ) ) ) MICHAEL BEHARRY ) S. Yeghoyan, ) for the accused ) ) ) ) HEARD: January 10, February 17, 2011 FELDMAN J.: Introduction [1] Michael Beharry is charged with Operation Over 80. An Information alleging this offence was sworn on January 25,2010. On May 19, a trial date was set for April 18, 2011. The Applicant says it has taken too long to reach trial and is seeking a stay ofproceedings under s. 11(

b) of the Charter of Rights and Freedoms on account of unreasonable delay. [2] In reviewing the chronology of steps taken by the parties in arriving at a trial date, I must consider the inherent timerequirements of the case, any institutional or systemic delay and the overall operative delay in the context of a legal framework balancingindividual and societal rights in determining whether there has been a constitutional violation of the accused’s s. 11(

b) rights. [3] The initial intake period, or inherent time requirements, contemplates the time taken up in processing the charge,retaining and instructing counsel, applying for bail and other pre-trial procedures and prosecution compliance with disclosureobligations. The more complicated the case, the longer this “neutral” time will be extended: R. v. Morin (1992), (SCC),71 C.C.C. (3d) 1 (S.C.C.).

Although the Crown anticipates calling a civilian witness, this is not a complicated matter. [4] The intake period here is just under 4 months, a little too long for this kind of case, although it is unclear the defence wasas efficient as it might have been in moving it forward. The period of time from which the parties were ready to proceed until the systemwas able to accommodate a trial date, referred to in the authorities as institutional delay, is just under 11 months which is outside the timeframe set down by the Supreme Court.

The amount of time required to get this case to trial from the swearing of the Information, or theoperative delay, is just under 15 months warranting, as conceded by the Crown, an inquiry into the reasonableness of the delay. History of the Proceedings [5] Mr. Beharry was arrested and charged on January 23, 2010. At his first appearance on March 18, the Applicant wasrepresented by counsel. He was provided with complete paper disclosure. Counsel asked to return on April 8 in order to review thematerials with his client.

On that date, counsel conducted a Crown pre-trial and requested an additional attendance on May 7 to await disclosure of a DVD. It is unclear why a full month delay was necessary. While there is no May 7th transcript available, it would appearthat the DVD was provided to the defence. An in-court judicial pre-trial was held on May 19, after which a trial date of April 18, 2011was set. This application has been brought, as required, 3 months in advance of trial. The Legal Framework [6]

Section 11(

b) seeks to protect the individual rights to security of the person, to liberty and to a fair trial. There is asecondary societal interest in ensuring the fair treatment of the accused, as well as the prompt conduct of trials: R. v. Morin, at para. 27and 28. The judicial guideline in the Ontario Court of Justice for adults is 8 to 10 months of institutional delay: see R. v. Morin, at para.55. The court in Morin, at para 47, adds the following caution: “It must not be forgotten that systemic or administrative delay guidelines must not be applied as a ceiling threshold or limitationperiod.

The required balancing of the Askov factors must be undertaken in every case.” [7] Cromwell J. in R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26, at para 18, succinctly summarizes the legalframework for an s. 11(

b) analysis, as follows: The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessedby looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasonsfor the delay, the prejudice to the accused and the interest that s. 11(

b) seeks to protect…This often and inevitably leads to minuteexamination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however,not to lose sight of the forest for the trees while engaging in this detailed analysis.

As Sopinka J. noted at p. 787, the general approach is not by the application of a mathematical or administrative formula, but rather bya judicial determination, balancing the interests which s. 11(

b) is designed to protect against factors which either inevitably lead to delayor are otherwise the cause of delay. The length of the delay encompasses the period of time from the date the Information was sworn to the date the trial is scheduled to becompleted: R. v. Morin, at para 32. An assessment of the reasons for the delay requires an inquiry into these factors: 1) The length of the delay; 2) Waiver of the 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;

e) Other reasons for delay; 4) Prejudice to the accused Operational Delay [8] The length of delay here is 14 months and 25 days. There is nothing in Mr. Beharry’s conduct of the case that wouldsuggest he waived any portion of this time frame. Inherent Time Requirements [9] The intake period is considered neutral time, except for any portion that is unnecessarily prolonged.

It is the experiencein this busy jurisdiction that for a relatively uncomplicated case, such as this one, a period of two to three months to complete disclosureand conduct a judicial pre-trial is sufficient 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.). [10] I would consider 3 months to set a date for trial on this charge to be reasonable. The additional time taken up is relativelyminor in the circumstances here. The defence might have chosen to have returned for disclosure earlier than it did.

Nonetheless, I amprepared to attribute 2 weeks delay to the prosecution. Actions of the Crown and Defence [11] Any delay that may have been caused by either of the parties is insignificant. Limits on Institutional Resources [12] 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 months after the parties were ready for trial. This falls outside the 8 to 10 month guidelinerecommended in Morin.

In addition, it is significant that in Morin, the court noted the government’s constitutional obligation to commitsufficient resources to prevent unreasonable delay and asserted that there was a point in time at which the court would no longer toleratedelay based on the plea of inadequate resources. [13] Rosenberg J. 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”. [14] In Kovacs-Tatar, there was 12 months of institutional delay.

The court found this delay did not greatly exceed the judicialguidelines for matters in provincial court, and concluded it was not unreasonable in the circumstances. [15] The Supreme Court has recently confirmed the judicial guideline of 8 to 10 months for this court in Godin. It alsorecognized that these guidelines were not limitation periods and that “deviations of several months in either direction can be justified bythe presence or absence of prejudice”: see also Morin, at p. 28. [16] The institutional delay in this case is approximately 11 ½ 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 ofthe s. 11(

b) analysis. Prejudice can only be assessed on a case-by-case basis. We stress the need for evidentiary support for allegationsof prejudice made by the applicant.” Prejudice

[17] 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. [18] Prejudice can be inferred from the length of the delay or be specific to the applicant 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 theadministrative 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.). [19] Mr. Beharry has asserted prejudice to his 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.” [20] In concurring reasons, McLachlin J. (as she then was) wrote that: “Where the accused has suffered clear prejudice, which cannot be otherwise remedied, the balance may tip in the accused’s favour, andjustice may require a stay.” [21] Prejudice in relation to security interests contemplates overlong subjection to the stress and anxiety arising from disruptionof work, as well as 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 [22] Mr. Beharry testified that as a result of being charged he lost his driving license for 3 months and had to retain counsel. Ofsignificance, he was no longer able to maintain his employment with his company as a driver, but was fortunate to be moved inside as ashipper and receiver. He was subsequently laid off as were others due to a lack of work. In addition, all drivers were placed on part-timestatus and some were also let go. [23] Mr.

Beharry says he suffered stress and depression from these developments but did not see a doctor for relief nor did hebring an application in court to obtain an earlier trial date in order to deal with his purported anxiety. He is looking for work and nowsays he would prefer to remain inside as a shipper and receiver because driving would be too stressful for him. [24] In my view, Mr.

Beharry suffered a only minimal degree of economic prejudice in losing his status at work as a driver, as hewas able to maintain his employment until the economic downturn unfortunately reduced the employment prospects for him and othersof his co-workers, including drivers. [25] There is no independent or objective evidence of the nature and degree of anxiety the Applicant claims to have suffered, norhas he been pro-active in moving up his trial. In R. v. Bennett, (ON CA), [1991] O.J. No. 884 (Ont.

C.A.), the courtindicated that the Applicant must bear responsibility for taking the initiative in alleviating the prejudice by bringing his or her plight tothe attention of the prosecuting authorities and the courts. In addition, it is open to the court to find that the Applicant’s failure to raisehealth concerns at any time before the s. 11(

b) motion tends to diminish the force of the prejudice claimed: R. v. Vertlib, [2008] O.J. No.1223 (Ont. C.A.). [26] A review of some more recent authorities in this court is instructive in how prejudice impacts the judicial guideline. In R.v. Jesuthansan, unreported, September 21, 2009, OCJ, Nakatsuru J. ruled that almost 13 months of operative delay did not amount to a s.11(

b) breach in an Operation Impaired case where no significant prejudice could be inferred. In R. v. Nichols, unreported, January 22, 2010, an Operation Impaired and Over 80 case in which there was some evidence of actual prejudice to the accused, Marin J. found that10 ½ months did not amount to unreasonable delay. In R. v. Soullier, unreported, February 23, 2010, OCJ, I dismissed an application tostay threatening death and carry concealed weapon charges where institutional delay totalled 12 ½ months and some prejudice to theaccused’s ability to work was found to exist.

Balancing of Interests [27] In Morin, at para 30, the court held that an accused’s interest in a trial within a reasonable time must be balanced againstsociety’s interest that by its nature is adverse to the interests of the accused. The court noted that in Conway, [R. v. Conway, (SCC), [1989]1 S.C.R. 1659] the majority recognized that the interests of the accused must be balanced by the interests ofsociety in law enforcement. It also made reference to Askov [R. v.

Askov (1990), (SCC), 59 C.C.C. (3d) 449], whereCory J. spoke of a “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to thelaw”.

Importantly, as the seriousness of the offence increases, so does the societal demand that the accused be brought to trial. [28] 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 an accused to trial. [29] Drinking and driving charges are viewed seriously by the court. In R. v.

Bernshaw (1995), (SCC), 95C.C.C. (3d) 193 (S.C.C.), Cory J. spoke of the “terrible trail of death, injury, heartbreak and destruction” left by drunk driving inCanadian society. The empirical evidence indicates that in terms of deaths and serious injuries resulting in hospitalization, it is the crimewhich causes the most significant social loss to the country.

Importantly, the learned justice notes that the personal loss suffered by thevictims of this crime through the death and injury of their loved ones is even more devastating. [30] As indicated in Kovacs-Tatar and other authorities referred to earlier, the institutional delay in the circumstances of thiscase is unfortunately, but not unacceptably, outside the judicial guideline, particularly so given that I find on this evidence that much ofthe Applicant’s stress is attributable to having been charged. Fortunately, Mr. Beharry was able to maintain his employment, albeit in adifferent position that he now prefers.

To his credit he has made effort to find other work when his employer released him for business

reasons. As well, I weigh in the balance, the nature of the charge, considered in the jurisprudence and in the community to be serious, and the fact that there is a societal interest in having such matters resolved on their merits. [ 31 ] On the evidence, the Applicant has not satisfied me on a balance of probabilities that the delay here is unreasonable and that his s. 11 (

b) rights have been violated warranting a stay of proceedings. The application is dismissed. Released: February 17, 2011 Signed: “Justice L. Feldman”