R. v. Howser, 2011 ONCJ 534

Citation: R. v. Howser , 2011 ONCJ 534 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ PETER HOWSER ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) O. Delgado For the Crown E. Rolfe For the Defendant/Applicant Heard: October 26, 2011 REASONS for RULING (Charter s. 11(b)) MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] As a result of a fracas with the police in the Toronto Òentertainment districtÓ on July 11, 2010, Peter Howser, the defendant, was charged with causing a disturbance, uttering threats to both cause damage and bodily harm, and assaulting a police officer with intent to resist arrest.

Mr. HowserÕs trial dates of October 26 and 27, 2011 were fixed on January 27, 2011, some 15½ months after he was initially charged. [ 2 ] In view of this cumulative delay, Mr. Howser submits that his right to be tried within a reasonable time, as protected by s. 11(

b) of the Charter, has been violated. Mr. Howser (hereafter, the applicant) further submits that in view of this infringement, if found, the appropriate and just constitutional remedy, pursuant to s. 24(1) of the Charter, is that all charges against him be ordered stayed. [ 3 ] While opposing the application, Crown counsel agrees that the duration of the proceedings to date is such as to warrant

Charter scrutiny. In very brief compass, that scrutiny and a complimentary analysis follow. B. THE

SECTION 11(

b) ANALYTICAL FRAMEWORK [4]

Section 11(

b) of the Charter guarantees every person charged with an offence the right to be tried within a reasonable time. The primary interests protected by this provision are those of the defendant: security of the person, liberty and fair trial rights. Societalinterests (including that criminal charges, particularly serious ones, are tried on their merits and ensuring that those charged with criminaltransgressions are not only brought to trial but quickly and fairly) are also of concern: R. v. Askov (1990), (SCC), 59C.C.C. (3d) 449, at 474 (S.C.C.); R. v. Qureshi (2005), 128 C.C.C. (3d) 453, at 458 (Ont.

C.A.) and R. v. Godin (2009), 2009 SCC 26, 245 C.C.C. (3d) 271, at para. 40. [5] The factors that inform the calculus of s. 11(

b) analysis have been settled since R. v. Morin (1992), (SCC), 71C.C.C. (3d) 1: 1. 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 defendant; (

c) actions of the Crown; (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the defendant. As said by McLachlin J. (as she then was) in her concurring opinion in Morin, supra, at p. 30, ÒWhat is important is how those factorsinteract and what weight is to be accorded to eachÓ. [6] A s. 11(

b) analysis requires a judicial ÒbalancingÓ of the length of the delay as assessed in light of these factors and theinterests protected by s. 11(b). As summarized by The Supreme Court in R. v. Godin, supra, at para. 18: Whether delay has been unreasonable is assessed by looking at the [total] length of the delay, less any periods that have beenwaived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s.11(

b) seeks to protect. Unsurprisingly, adjudication of s. 11(

b) claims often turns, as here, on the legal characterization and allocation by factor of particularperiods of delay. [7] As with all assertions of a Charter breach, the applicant bears the burden of establishing a violation of his s. 11(

b) rights. Nomathematical formula determines the reasonableness of pre-trial delay. Some assistance, however, may be found in the administrativeguidelines first articulated by the Supreme Court in Morin. As set out in that case, the standard for permissible institutional or systemicdelay in the case, as here, of a provincial court trial is eight to ten months. (See R. v. G.(C.R.), (2005), (ON CA), 77O.R.(3d) 308 (C.A.), at 315.) This metric must not be confused with a fixed limitation period; its dimensions have a certain elastic qualityand depend on a variety of factors.

That said, the normative inclination in the nearly two decades since Morin is in the direction ofreduced tolerance for institutional delay. As said by Molly J. in R. v. Stephens, [2007] O.J. No. 3500 (S.C.J.), at para. 67, Òindetermining when delay can be said to be ÔunreasonableÕ, courts are increasingly looking to the bottom of the Morin guidelines, ratherthan to the extreme upper limitsÓ. (See also: R. v. Sharma (1992), 71 C.C.C. (3d) 186 (S.C.C.) at 194; R. v. Meisner, [2003] O.J. No.1948 (S.C.J.); R. v. Osei, [2007] O.J.

No. 768 (S.C.J.) at paras 39-40.) [8] Finally, by way of introduction to the governing legal principles, I note that the Court of Appeal in R. v. Thomson, 2009ONCA 771, at paras. 9- 10, re-affirmed that a stay of proceedings is the only appropriate remedy once the s. 11(

b) hurdle ofÒunreasonable delayÓ is crested. Unlike other claims for such relief, the standard of Òclearest of casesÓ has no application, nor needprejudice to a defendantÕs right to a fair trial or right to make full answer and defence be established to attract the constitutional remedyhere sought. C. APPLYING THE ANALYTICAL FRAMEWORK [9] The total length of the impugned delay is 15½ months. The applicant at no time waived his right to be tried within areasonable time. Nor is any of the delay, in my view, materially attributable to the conduct of the Crown. Accordingly, the focus of theinstant s. 11(

b) analysis is the reasons for the delay and the cognizable prejudice suffered by the applicant, as assessed in light of theinterests s. 11(

b) protects. This analysis, as I view it, can be conducted in

summary fashion without any great detailing of the events thattranspired on and between each court appearance. [10] The applicant was charged with two others. He was released on bail after two days in custody and had completed a ÒpartialÓ

Crown pre-trial by September 14, 2010. A co-accused was then prepared to fix a judicial pre-trial (JPT) without benefit of meeting withthe Crown, but the trial co-ordinatorÕs office advised that Òby direction of the administrative judge no JPT can be set without Crownpre-trials having been conducted for all partiesÓ. Accordingly, I attribute the two-week interval until the next appearance to institutionalfactors. On the return date, September 28, 2010, an agent appearing for the applicant sought a six-week adjournment, detracting from any claim of urgency on his part.

The Court permitted only four weeks and, on October 26th, the same agent sought a further four-weekadjournment to fix a JPT on the basis that the three defendants had Òto all move togetherÓ. Some of the interim delay to this point wasattributable to outstanding disclosure requests respecting possible CCTV footage (the type of issue that is routinely addressed at JPTs)and some to a co-accusedÕs difficulties securing a Legal Aid certificate.

In this latter regard, I note that the Court of Appeal, in R. v.Whylie (2006), (ON CA), 207 C.C.C. (3d) 97, at para. 24, held that, Òordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(

b) analysisÓ. (See also: R. v. Sapara, 2001 ABCA 59 , [2001] A.J. No. 256 (C.A.), atparas. 57-58, leave to appeal refÕd, [2001] S.C.C.A. No. 237; R. v. Farrell, [2010] O.J. No. 4430 (S.C.J.), at paras. 47-48.) [11] A JPT to be held on January 6, 2011 was finally fixed on the return appearance, November 23rd. Although unexplained by therecord, Crown counsel fairly concedes that an interval of this length to

schedule a JPT is not atypical in this court, particularly given theintervention of Christmas and New Years holidays. Accordingly, I treat this period as one of institutional delay: R. v. G. (C.R.), supra;R. v. Cranston, 2008 ONCA 751 , [2008] O.J. No. 4414 (C.A.), at para. 46.

The matter was then adjourned until to January 27th for potential resolution, a delay the applicant rightly concedes is attributable to the defence under the rubric of Òactions of thedefendantÓ. [12] The applicantÕs two co-accused ultimately disposed of their charges by way of a withdrawal in one case and a plea to a single count in the other. The applicant elected to proceed to trial and set his trial dates of October 26th and 27th on January 27th.

TheapplicantÕs counsel suggests that this was the first available trial date and, accordingly, this entire nine-month gap is properlyattributable to institutional delay. I note, however, that, again, the record is silent in this regard Ð and with respect to when either thedefence or the Crown was available and prepared to proceed to trial. Code J., in addressing a similar situation in two-stage proceedingsin R. v. Richards, 2010 ONSC 6202 , [2010] O.J.

No. 4958 (S.C.J.), reasoned that, Systemic or institutional delay is Òthe period that starts to run when the parties are ready for trial but the system cannot accommodatethemÓ. See: R. v. Morin, supra, at pp. 18 and 26-7. In the case at bar, as in Morin itself, the parties did not always indicate when theywould be available or ready for the preliminary inquiry or for the trial to commence. They simply sought the earliest available date.

Itcan be inferred that counsel with other commitments would not be immediately available and that some additional time would also beneeded to prepare for the preliminary inquiry and for the trial. These considerations would lengthen the period of neutral or inherentdelay and would shorten the period of institutional or systemic delay. Courts should insist that this information is put on the record as itis important to the proper calculation of institutional delay, as that term is understood in the s. 11(

b) jurisprudence. See: R. v. M. (N.N).[(2006), (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.)], at paras. 28, 29 and 70; R. v. Schertzer et al [(2009), 2009ONCA 742 , 248 C.C.C. (3d) 270 (Ont. C.A.)], at paras. 91-4 and 110-112. On both appearances in the Superior Court, when setting a date for trial, [defence counsel] indicated that he was available within aboutthree months. This would also be a reasonable period of time to prepare for a trial or preliminary inquiry of this nature.

I wouldtherefore reduce the period of systemic delay by six months (three months in the Ontario Court and three months in the Superior Court)and increase the period of neutral or inherent delay by six months.

As Crown counsel takes no issue with the applicantÕs position that, in the circumstances before me, approximately two monthswould have sufficed for him to secure available and adequately prepared counsel in the firm he retained, I allocate some seven of thenine months between the date on which the trial date was fixed and that date scheduled for the conclusion of the trial to institutionaldelay. [13] Viewed globally, I am of the view that but for the two-week interruption occasioned by the local administrative judgeÕs policydirective, the entire interval between the applicantÕs arrest on July 11 and November 23, 2010, when the JPT was finally set, is ofneutral value in the s. 11(

b) calculus as it is attributable to necessary intake proceedings or other inherent requirements of the case. Thesix weeks between the latter date and January 6, 2011 are properly characterized as institutional delay, as is some seven months of theperiod between the date the applicantÕs trial was set (January 27, 2011) and the date scheduled for its conclusion (October 27, 2011).

Accordingly, approximately nine months in total may be properly characterized as institutional delay. [14] Although not at the lowest end of the range, a delay of nine months is the median point of the guidelines bracket suggested bythe Supreme Court in Morin. Nor do I find the prejudice suffered by the applicant to be especially grave as measured by those standardsconventionally employed in such calculus. There is no suggestion of prejudice to the applicantÕs fair trial rights. His recognizancerestricted his mobility through a condition imposing a curfew.

However, at the applicantÕs request this condition was deleted, on Crownconsent, within approximately a month of his release from custody. The applicant never proposed any further relaxation of his bailconditions, nor did he apply in Superior Court for a review of those conditions. As an employed man without prior criminal antecedents,I have no doubt as to the sincerity of his expressions of anxiety and their amplification as the trial delay progressed.

However, thisprejudice, whether characterized as actual or inferred, is not such, when balanced against the reasons for the delay and the societalinterests embedded in s. 11(b), as to render the resulting or overall delay constitutionally unreasonable. D. CONCLUSION [15] In the result, I do not find there has been a breach of the applicantÕs s. 11(

b) rights and, accordingly, dismiss his application tostay the proceedings on this basis. Released on October 27, 2011.

__________________________ Justice Melvyn Green