R. v. Lao, 2010 ONCJ 585

COURT FILE No.: TORONTO Citation: R. v. Lao , 2010 ONCJ 585 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CHONG LAO AND THI LUU Before Justice Paul H. Reinhardt Heard on 30 November 2010 Reasons for Ruling released on 1 December 2010 Donna Polgar ............................................................................................................ for the Crown Darren S.

Sederoff ................................................................................................... for the accused REINHARDT J.: [ 1 ] The defendants are charged that on or about 23 April 2009 in the City of Toronto in the Toronto Region they did unlawfully produce a controlled substance to wit: Cannabis Sativa, its preparations derivatives and similar synthetic preparations, namely Cannabis Marihuana, contrary to section 7(2) (

b) of the Controlled Drugs and Substances Act , and further that they did, and the same time and place unlawfully have in their possession a controlled substance for the purpose of trafficking, to wit, Cannabis Sativa, its preparations derivatives and similar synthetic substances namely Cannabis Marihuana contrary to Section 5(2) of the Controlled Drugs and Substances Act , thereby committing an offence under Section 5(3) (

a) of the said Act, and further that they did, at the same time and place unlawfully have in their possession a controlled substance for the purpose for trafficking, to wit: Cannabis Sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis Marihuana contrary to section 5(2) of the Controlled Drugs and Substances Act , thereby committing an offence under Section 5(4) of the said Act, and further that they did, at the same time and place, have in their possession proceeds of property to wit: four hundred and thirty five dollars in Canadian currency, of a value not exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly from the commission in Canada of the offence thereby committing an offence under s. 355 (

a) of the Criminal Code . [ 2 ] By Notice of Application dated 9 November 2010 the defendants are seeking a stay of proceedings based upon a breach of their Charter right under

Section 11(

b) to be tried within a reasonable time. [ 3 ] In the application alleges that the delay in this case from the date of arrest to today, the second trial date, should be calculated as approximately nineteen months. [ 4 ] Briefly, the relevant time periods are as follows: 1) 23 April – 10 June 2009 – Applicants are arrested, appear in bail court and are released on a surety bail. Mr. Lao’s bail includes a curfew from 10:00 pm to 6:00 am, seven days a week.

Disclosure is vetted, processed and available to be provided to the Applicants. 2) 10 June – 8 July 2009 – No steps taken by the Applicants. 3) 8 July – 13 July 2009 – Delay between appearance in 114 Court and request for Crown Pre-Trial. 4) 13 July – 13 August 2009 – No steps taken by Applicants, 5) 13 August – 2 September 2009 – During this period Crown Pre-Trial held on 17 August and matter returns to court on 2 September. 6) 2 September – 7 October 2009 – Defence obtains adjournment to seek instructions on settlement offer from Crown. 7) 7 October – 5 November 2009 – Defence obtains adjournment to seek to join federal and municipal charges in federal set date court. 8) 5 November – 26 November 2009 - Further adjournment obtained by the defence.

9) 26 November – 14 January 2010 – Further adjournment for Judicial Pre-Trial (“JPT”) scheduled for 14 January 2010. 10) 14 January – 21 January 2010 – Defence counsel does not attend JPT and JPT adjourned to 21 January for Counsel to attend. 11) 21 January – 11 February 2010 – Defence counsel does not attend on 21 January, JPT further adjourned to 11 February 2010. 12) 11 February – 29 November 2010 – On 11 February a three day trial is set following the JPT with an interim appearance on 24 March to confirm trial dates. [ 5 ] The Applicants each filed affidavits dated 30 November 2010 describing “actual prejudice” in terms of their respective worry and anxiety regarding the charges. [ 6 ] The Applicants submission is that because of the passage of time, their anxiety has increased and that this is beyond the time frames for a trial to be commenced in this jurisdiction, and that these factors, taken as a whole, should result in a stay. [ 7 ] The respondent Crown submission is that much of the delay can be attributed to the actions of the Applicants, and when the overall time of the delay is reviewed in light of the case law, approximately eleven months and 6 days of the total can be attributed to institutional and Crown delay. [ 8 ] The Crown further submits that the Applicant’s affidavits reveal no actual prejudice to the two accused, save and except the limited prejudice for Mr.

Lao of his bail condition of a curfew. [ 9 ] I have concluded that the Crown argument in this case should prevail, and I therefore am dismissing this application. These are my reasons. The Case Law [ 10 ] In R. v. W. B. 2000 CanLII 5750 (ON CA) , [2000] O.J. No. 2186 (O.C.A.), at paragraph 55 , Justice Mark Rosenberg summarized the factors to be considered in evaluating whether an applicant’s right to a trial within a reasonable time under s. 11(

b) of the Charter, has been breached: 55 In R. v. Morin , 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771 at 788, Sopinka J. held that the determination of whether the accused's right to a trial within a reasonable time had been infringed could not be made by the application of a mathematical formula. Rather, the court is required to balance the interests the

section is designed to protect against the factors that either inevitably lead to delay or are otherwise the cause of the delay. The balancing "requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable." Sopinka J. held that the court should consider the following factors: 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 delay, and 4. prejudice to the accused. [ 11 ] In R. v. Morin 1992 CanLII 89 (SCC) , [1992] S.C.J. No. 25 (S.C.C.), Justice John Sopinka concluded that the tolerable delay in Durham Region was between eight and ten months. In R. v. Meisner [2003] O.J. No. 1948 (S.C.J.) , Justice Casey Hill did an extensive study of the delays at Old City Hall and Peel Region, and concluded that the tolerable delay in Peel Region should be between eight and nine months. [ 12 ] In R. v. Lima [2006] O.J.

No. 1746 (O.C.J.), at paragraphs 10 to 12 , Justice Rebecca Shamai reviewed the analysis in Meisner and with statistical data current to February of 2006 in Toronto concluded that the appropriate delay in the Toronto region for an out-of-custody trial of less than one day was six months. [ 13 ] As well as the inherent prejudice caused by delay, the courts have found that in any particular case, there may be actual prejudice that attributes to the unreasonableness of the delay. [ 14 ] In R. v.

Mills , [1986], Chief Justice Antonio Lamer states at paragraph 146: 146 Additionally, under s. 11(b), the security of the person is to be safeguarded as jealously as the liberty of the individual. In this

context, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" (A. Amsterdam, loc. cit., at p. 533). These include [page920] stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.

These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of delay. [ 15 ] In R. v. Brown, [2005], at paragraph 43, Justice Ian MacDonnell concluded, as well, that prejudice caused by the charge itself cannot be ignored when considering the actual prejudice that arises where the trial date is delayed: 43 I recognize that there is a distinction between prejudice caused by the fact of being charged and prejudice caused by delay after being charged.

The stigmatization of which the applicant complains is the product of being charged, and would have occurred even if the trial had been conducted expeditiously. Accordingly, it is not 'prejudice' for the purposes of s. 11(b). However, the fact that a negative consequence arises from being charged rather than from delay does not necessarily make it irrelevant for s. 11(

b) purposes. The stress and anxiety that flow from stigmatization, for example, can create an ongoing burden, and the longer that the burden must be borne, the greater the toll on an accused's security of the person: see R. v. Kporwodu and Veno (April 15, 2005) (Ont. C.A.), at paragraphs 162, and 177-178. [ 16 ] In R. v. Godin 2009 SCC 26 (CanLII) , [2009] S.C.J.

No. 26, Justice Thomas Cromwell of the Supreme Court of Canada made it clear that the initial prejudice that attaches to the fact of the charges themselves, are extenuated as the time to trial gets longer: 29 The Court of Appeal disagreed with the trial judge's analysis of prejudice and found that any prejudice to the accused's interest in a fair trial was too speculative to be considered. Partly on this basis, the Court of Appeal found that the delay was not unreasonable. I respectfully disagree.

In light of the length of the delay, of the Crown's failure to explain the multiple delays adequately, and of the prejudice to the accused's liberty and security interests - if not also to his interest in a fair trial - the delay in this case was unreasonable. 30 Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin , at pp. 801-3. 31 The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin , at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn". Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. 32 This approach was reflected in the trial judge's reasons, where he wrote that the delay in this case was "well beyond any reasonable

interpretation of the [ Morin ] guidelines" ( 2007 CarswellOnt 5364, at para. 20) and that the appellant had suffered prejudice as a result. The judge referred specifically to the fact that the charges had been hanging over the appellant's head for a long time and that he was subject to "fairly strict" bail conditions (para. 22). [ 17 ] More recently, Justice Michael Code of the Superior Court, in R. v. Richards 2010 ONSC 6202 (CanLII) , [2010] O.J.

No. 4958, emphasized at paragraph 32 of his judgment: 32 Sopinka J. made it clear in Morin , supra at pp. 19-20, that the "guidelines" for systemic delay are "neither a limitation period nor a fixed ceiling" and they are not to be applied "in a purely mechanical fashion". Indeed, the "guidelines" for systemic delay are really more in the nature of a sliding scale as they can move up or down, depending on the presence or absence of actual prejudice. As Sopinka J. put it in Morin , supra at pp. 21, 24-5 and 28: The application of a guideline will also be influenced by the presence or absence of prejudice.

If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. ... As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated.

The application of any guideline will be influenced by this factor. ... While I have suggested that a guideline of eight to ten months be used by courts to assess institutional delay in Provincial Courts, deviations of several months in either direction can be justified by the presence or absence of prejudice. [Emphasis added] 33 The Morin case itself illustrates the flexibility of the "guideline" as there were twelve months of systemic delay in that case, some two months over the top end of the "guideline", but there was no evidence of actual prejudice.

In these circumstances, it was held that there was no violation of s. 11(b). Analysis [ 18 ] In this hearing, I accept the approach articulated by Justice Code in Richards , above, with respect to how I must treat the “guideline”, in this case. In this case, the two accused were arrested on 23 April 2009, and the trial date was set on 11 February 2010 for 29 November 2010. Thus the overall delay has been 19 months and 6 days. This delay, by the case law, requires scrutiny.

[ 19 ] I have concluded that the Crown analysis of the reasons for the delay, as set out in the Crown Factum, paragraphs 20 and 21, is essentially correct. I therefore conclude that the delay that can be attributed to institutional and Crown delay in this case is approximately eleven and one-half months. [ 20 ] I now will turn to the issue of prejudice to the accused. [ 21 ] The parties before me disagree as to whether there is evidence of actual prejudice to the applicants, and as to the extent of that prejudice.

To reach a conclusion on this point, I will again turn to the recent decision by Justice Code, at paragraph 35 and following: Prejudice 35 The final factor is prejudice to those interests of the accused that s. 11(

b) seeks to protect, namely, liberty, security of the person and fair trial. This prejudice can be inferred from "a very long and unreasonable delay", in other words, from delay that is "substantially longer than can be justified on any acceptable basis". Alternatively, in a case where the delay is "closer to the line", the accused may lead evidence on the Motion to show "that there has been unusual prejudice by reason of special circumstances". The inference of prejudice from unduly long delays applies, in particular, to security of the person interests including stress and anxiety while awaiting trial.

See: Askov , supra at pp. 474 and 482-4; Morin , supra at pp. 23-4; R. v. Smith (1989), 1989 CanLII 12 (SCC) , 52 C.C.C. (3d) 97 at p. 111 (S.C.C.). [ 22 ] In this case the applicant Chong Lao has been under a bail condition of a curfew for the entire nineteen months. The applicant Thi Luu has, with Crown consent, had her bail varied to permit her to live with her family. [ 23 ] The two affidavits filed on behalf of the applicants do not suggest any particular additional prejudice, other than the stress from the passage of time.

This is clearly a form of prejudice, as stated above in Mills , Brown , Lima and Godin but I have concluded that this not the “unusual” prejudice referred to above by Code in paragraph 35 of his judgment. [ 24 ] In my view, the affidavits essentially set out the stress that can be attributed to the fact of the initiation of these proceedings, and there are not additional personal factors that have affected the liberty or security interest of these two defendants.

There was no medical or other evidence of actual prejudice to the applicants. [ 25 ] I agree with the applicants that an inference of some prejudice can be inferred from the delay of eleven and one-half months. However, the curfew for Mr.

Lao was not referred to in his affidavit and does not appear to have prejudiced him in his daily affairs. [ 26 ] There is no assertion here that “fair trial” interests have been prejudiced. [ 27 ] On a review of the materials in the Application Record, I can find no clear indication on the record that these applicants were in any particular way prejudiced or desirous of the matter proceeding with more dispatch. [ 28 ] I also weighed as a factor and appreciate that society has an interest in having this serious set of allegations being tried on their merits. [ 29 ] For provincial court, in Durham Region, in the early 90’s the guideline for tolerable delay according to Morin is suggested as 8 to 10 months.

In Meisner it is suggested that in Toronto and Peel the guideline is 8 to 9 months in 2003. In Lima, Justice Shamai suggests that the guideline in Toronto in 2006 is 2006 for a trial of less than one day. [ 30 ] Here, we have a three day out of custody matter that has a delay of approximately eleven and one-half months. [ 31 ] I have concluded that the guideline in this case should be considered as 8 to 10 months, due to its complexity and estimated time needed for the trial, and that deviation from the guideline is justified because of the absence of actual prejudice to the 11(

b) rights of the two applicants. [ 32 ] In the result, the application is dismissed. Released: 1 December 2010 Signed: “Justice Paul H. Reinhardt”