R. v. Yu, 2015 ONCJ 811

DATE: 2015·02·19 CITATION: R. v.

Yu , 2015 ONCJ 811 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — WANJUN YU Before Justice Carol Brewer Heard on November 28, 2014 Reasons for Judgment released on February 19, 2015 Anika Roberts ............................................................................................................ for the Crown Peter Lindsay .................................................................................... for the defendant, Wanjun Yu Brewer J.: Introduction [ 1 ] This is a ruling on an application pursuant to section 24(1) of the Charter seeking a stay of proceedings on the basis that there has been a violation of the applicant’s right to be tried within a reasonable time, as guaranteed by

section 11(

b) of the Charter . [ 2 ] On January 26, 2013 the applicant was arrested for operating a motor vehicle with a blood-alcohol level above the legal limit. The information setting out these charges was sworn on February 19, 2013. The applicant’s trial began on February 21, 2014. The case was to continue on May 15, 2014, but was adjourned when there was no suitable interpreter available. [ 3 ] This application was heard on November 28, 2014, when the trial was scheduled to resume. The Nature of the Allegations [ 4 ] This is a straightforward drinking and driving case.

It is alleged that on January 26, 2013 the defendant was speeding while travelling north on Yonge Street at Sheppard Avenue. After being stopped by Sgt. King, the defendant stated that he was tired and that he was coming from karaoke. Mr. Yu admitted having consumed alcohol. The sergeant demanded that the defendant provide a sample of his breath into a roadside screening device. The result of the test was a ‘fail’ reading. Mr. Yu was arrested and taken to a police station, where samples of his breath provided readings of 125 and 126 milligrams of alcohol in 100 millilitres of blood.

The Analytical Framework [ 5 ] It is well established that the applicant bears the burden of establishing a breach of his rights under the Charter on a balance of probabilities. The leading decision of the Supreme Court of Canada in R. v. Morin , [1992] S.C.J. № 25 provides that, in considering whether or not there has been a violation of

section 11(

b) of the Charter , the following factors must be taken into account: 1. the length of the delay 2. any waiver of time periods by the accused 3. the reasons for the delay, including (

a) the inherent time requirements of the case; (

b) the conduct of the accused or delays attributable to the accused;

(

c) the conduct of the Crown or delays attributable to the Crown; (

d) systemic or institutional delays; (

e) any other reasons for delay; and 4. prejudice to the accused. [ 6 ] After all of these factors have been considered, the final stage of the analysis involves a balancing of the individual and state interests that

section 11(

b) of the Charter is designed to protect, against the factual background of these factors. In essence, the court must balance the societal interest in seeing that persons charged with criminal offences are brought to trial against the interest of both the accused and society in the prompt adjudication of criminal charges. Before staying a charge the court must be satisfied that interests of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial: see R. v. Morin, supra at ¶32; R. v. Austin , [2009] O.J. № 1669 (C.A.) at ¶42-43; R. v.

Mahmood , [2012] O.J. № 5208 (S.C.J.) at ¶8-10, 104. The Chronology of the Case [ 7 ] On February 13, 2013 the information was sworn, charging the applicant with this offence. [ 8 ] On March 7, 2013, Ms. Mohamed, an agent for counsel, appeared and received initial disclosure. Two video DVDs were available for pick up.

Crown counsel said that the maintenance and calibration logs had been ordered. [ 9 ] On March 14, 2013, a Crown pre-trial was conducted and a judicial pre-trial was scheduled. [ 10 ] On April 9, 2013, a judicial pre-trial was held and the trial was scheduled for February 20 and 21, 2014. [ 11 ] On June 20, 2013, when defence counsel advised that there was outstanding disclosure, he was told that the materials he sought were ready for pick-up. [ 12 ] On February 20, 2014, the first day of trial, the case was not reached and was adjourned to the following day. [ 13 ] On February 21, 2014 the trial began at about 11:17 a.m.

Two witnesses for the Crown were called. A third witness had a family emergency. The final witness for the Crown was on leave and did not attend court. The case was adjourned at 3:20 p.m. On May 15, 2014 a fully accredited Cantonese interpreter was not available. A voir dire was held into the suitability of a conditionally accredited interpreter, who was found not to be qualified. The case was adjourned to November 28, 2014. Analysis A.

The Length of the Delay [ 14 ] The length of the delay that must be assessed is the total period of time from the date a person is charged with an offence until the date that the trial is finally completed: R. v. Allen , [1996] O.J. № 3175 (C.A.), aff’d [1997] S.C.J. № 91. The determination of whether the overall delay in a case becomes “unreasonable” within the meaning of

section 11(

b) is not simply a function of the passage of a specific period of time. Such a decision “is not to be made by the application of a mathematical or administrative formula, but by a judicial determination” involving a flexible and functional approach that balances many constitutionally relevant factors: R. v. Morin, supra at ¶31. [ 15 ] The total delay in this case is from February 13, 2013 to November 28, 2014, a period of 653 days, or 21 months and 15 days. The Crown has conceded, quite properly, that this amount of delay requires investigation. B.

Waiver by the Accused [ 16 ] In the present case there is no suggestion that the applicant waived any portion of the delay. C. The Reasons for Delay 1. Inherent Time Requirements (

a) The Neutral Intake Period [ 17 ] As the Supreme Court of Canada noted in R. v. Morin, supra ¶42, all cases have intake requirements, which consist of activities required to prepare and process the matter, including retaining counsel, dealing with bail applications, providing disclosure, and conducting meetings between Crown and defence counsel to discuss resolution. These preliminary intake matters consume time. Accordingly, the courts have recognized that these preliminary matters are part of the inherent time requirements of any criminal case and, for the purposes of a

section 11(

b) Charter analysis, should be viewed as neutral, in that they are not attributed to either party. [ 18 ] The usual intake period in a routine drinking and driving case is two months: R.v. Morin, supra at ¶41-42, 70; R. v.

Meisner , [2003] O.J. № 1948 (S.C.J.) at ¶30-32, aff’d [2004] O.J. № 3812 (C.A.); R. v Lahiry , [2011] O.J. № 5071 (S.C.J.) at ¶19, 22. [ 19 ] The Court of Appeal for Ontario has held that judicial pre-trials are also to be dealt with as part of the inherent time requirements of a case, as they are a reasonable and necessary case management tool in busy judicial centres that are designed to ensure the overall timeliness of the system, thereby protecting the Charter rights of accused generally in the presentation of their cases: R. v.

Tran , [2012] O.J. № 83 (C.A.) at ¶34; R. v. Khan , [2011] O.J. № 937 (C.A.) at ¶44-45, 53-55. [ 20 ] Here, both parties are agreed that the time from February 13 to April 9, 2013, a period of 55 days, or 1 month and 27 days, should be attributed to the intake period and viewed as neutral. 2. Delays Attributable to the Parties [ 21 ] In assessing the actions of the accused and the Crown under

section 11(

b) of the Charter , the court is not attempting to assign blame to one of the parties for any period of delay. Instead, the court is trying to accurately assess the factual causes for the delays in the particular case. In this analysis the court takes in account all of the actions voluntarily undertaken by the accused or the Crown which, in fact, caused delay in the proceedings.

If the conduct of a particular party has caused a specific delay, that delay is allocated to, or counted against, that party. [ 22 ] In this case, the case could not proceed on May 15, 2014 due to the absence of a properly qualified interpreter. Both parties agree that it is the responsibility of the state to ensure that an appropriate interpreter is available: see, for example, R. v. Hakimzadah , [2004] O.J. № 3973 (C.J.). The time from May 15 to November 28, 2014, a period of 197 days or 6 months and 13 days, is attributed to the Crown. [ 23 ] No delay is attributable to the defence. 3.

Limits on Institutional Resources [ 24 ] Systemic or institutional delay is properly defined as the period of delay that commences when the parties are ready for trial, but the system cannot accommodate them: R. v. Morin, supra at ¶47; R. v. Lahiry et al , [2011] O.J. № 5071 (S.C.J.) at ¶2. In R. v. Morin, supra at ¶55, the Supreme Court of Canada set an 8 to 10 month guideline for institutional delay in a case being tried in a provincial court, such as the Ontario Court of Justice. The court emphasized that this guideline is neither a limitation period, nor a fixed ceiling on delay.

Deviations of several months in either direction can be justified by the presence or absence of prejudice. Indeed, the Supreme Court of Canada endorsed such a deviation in Morin itself, where 12 months of institutional delay in a total delay of 14 ½ months was held not to constitute a violation of

section 11(b). More recently, in R. v. Godin , [2009] S.C.J. № 26 at ¶5, the Supreme Court of Canada made it clear that, even where the guideline has been “substantially exceeded”, that is but one factor that must be considered in determining whether an accused person has established a violation of

section 11(b). [ 25 ] In addition, parties should not been deemed to automatically be ready to conduct a hearing as of the date a trial is set. Counsel require time to clear their schedules so they can be available for the hearing, as well as time to prepare for the hearing. These times frames are part of the inherent time requirements of the case: see R. v. Ignagni, [2013] O.J. № 3531 (S.C.J.) at ¶56. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them: R. v.

Tran, supra at ¶ 32. [ 26 ] With respect to the time period from April 9, 2013 to the initial trial date of February 20, 2014, Mr. Lindsay took the position that he was available to conduct a trial as of the end of April. Ms. Roberts submitted that the Crown could have been in a position to subpoena its witness and respond to the defence’s Charter application in one month. Therefore, I will allocate one month to the inherent time requirements of the case and the remaining 9 months and 11 days to institutional delay. [ 27 ] On the first day of trial, the case was not reached and was adjourned to the following day.

This should be seen as institutional delay. [ 28 ] On February 21, 2014, the case was started later in the morning and ended early due to the failure of one witness to attend court and a family emergency involving another witness. The family emergency made an adjournment of the case inevitable. This was one of those unforeseen and unanticipated events that arise, for which no one can be faulted, and which should be viewed as neutral in the

section 11(

b) calculation: see R. v. Meisner , [2004] O.J. № 3812 (C.A.). The system had dates available as early as February 27, 2014 to resume the trial. However, despite days being offered in April and May, 2014, the earliest date that both parties were available was May 15, 2014. In my opinion, this entire period of should be seen as neutral from a delay perspective. [ 29 ] The period of institutional delay in this case is 9 months and 12 days. D. Prejudice 1. The Principles [ 30 ] Although there is a recognized societal interest underlying the operation of

section 11(b), the primary purpose of the provision is protection of the individual rights of accused persons, namely (1) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal charges; (2) the right to liberty, which is protected by trying to minimize restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, which is protected by attempting to ensure that trials occur while evidence is available and fresh: see R. v. Morin, supra at ¶27-28; R. v.

Godin, supra at ¶30. [ 31 ] Prejudice can take two forms. First, the court may infer prejudice from long periods of delay that are unreasonable and unjustified. The longer the period of delay, the more likely it is that such an inference will be drawn. Secondly, a defendant may lead evidence to show actual prejudice to his or her liberty, security interests or the ability to have a fair trial. [ 32 ] In considering the impact of prejudice, appellate authorities have made it clear that it is prejudice arising from the delay, not the charge itself, which is germane to the analysis: see R. v.

Kovacs-Tator , [2004] O.J. № 4756 at ¶32-34. However, it must be recognized that what may initially be prejudice attributable to the charge, may become prejudice arising from the delay as its duration becomes unduly prolonged.

[ 33 ] Further, in evaluating prejudice, the court is entitled to consider action or non-action by the accused which is inconsistent with the desire for a timely trial. For example, a failure on the part of the accused to put the court and the Crown on notice of the particular prejudice that he or she is suffering may undermine that claim: see R. v. Kovacs-Tator , supra at ¶37-39; R. v. Vertlib , [2006] O.J. № 660 (S.C.J.) at ¶27-28 and 41, aff’d [2008] O.J. № 1223 (C.A.). 2. The Evidence [ 34 ] Wanjun Yu, who is 25 years old age, came to Canada from China as a permanent resident in 2004.

Since his arrival in Canada, the applicant has attended high school and college, as well as working at various jobs. He returned to China from Canada on numerous occasions, spending 20 to 30 months in China between 2004 and 2011. Mr. Yu became eligible for Canadian citizenship in June 2013, but was provided with information stating that he should await the completion of his trial before applying for citizenship. [ 35 ] Mr. Yu asserts that the delay in these proceeding with the trial has caused him on-going anxiety, psychological pressure and insomnia.

Indeed, he has chosen not to drive after his driver’s licence was returned because the insomnia has affected his energy and concentration to the point where he does not feel safe to drive. The applicant has not sought medical attention for the insomnia. [ 36 ] Mr. Yu is concerned about the implications of this charge, such as the possibility of having a criminal record, the potential loss of his driver’s licence and increased insurance rates.

These worries have increased with the passage of time. [ 37 ] The applicant is also concerned that the delay has affected his ability to recall some of the details of this incident. 3. Analysis [ 38 ] This is a case where the parties were mindful of the applicant’s rights under

section 11(b). Mr. Yu swiftly retained counsel, prior to the first appearance. Disclosure was promptly pursued. After the May 15, 2014 adjournment, both Crown and defence counsel made substantial efforts to bring the case forward to an earlier date. [ 39 ] In this case, I find inferred prejudice, as the delays were “substantially longer than can be justified”: see R. v. Lahiry, supra at ¶16. [ 40 ] As regards actual prejudice, I accept that Mr. Yu suffered financial anxiety, stress and sleeplessness as a direct result of the delay in proceedings with this case.

His concerns, which included the fading of his memory for details regarding this incident, were not challenged in cross-examination. E. Balancing [ 41 ] By my calculations, the delay in this case should be allocated as follows: neutral Crown Defence institutional 168 197 0 288 Therefore the amount of delay that is the responsibility of the Crown is 485 days or 15 months and 28 days. [ 42 ] I recognize that drinking and driving offences are viewed very seriously in Canadian society: R. v. Lahiry, supra at ¶89.

However, this is a case where both the overall delay and the delay attributable to the state was substantially beyond both the institutional guidelines and the actual period of delay dealt with by the Supreme Court of Canada in R. v. Morin, supra . There is inferred prejudice to the applicant. In addition, Mr. Yu has suffered actual prejudice to his right to security of the person and his fair trial interests. In this context, I am satisfied that the degree of prejudice suffered by Mr.

Yu was of such significance as to outweigh the public interest in proceeding with a trial. [ 43 ] In conclusion, I am satisfied that Mr. Yu has established a breach of his rights under

section 11(

b) of the Charter . Released: February 19, 2015 Signed: “Justice Carol Brewer”