R. v. Si, 2011 ONCJ 355

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Citation: R. v. Si , 2011 ONCJ 355 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JI HUA SI Before Justice H. Borenstein Heard on February 25, 28 and April 11, 2009 Reasons for Judgment released on June 27, 2011 Ms. R. Koehl .............................................................................................................. for the Crown Messrs. Juriansz and Lachmansingh ......................................................... for the accused Ji Hua Si BORENSTEIN J.:

OVERVIEW [ 1 ] Ji Hua SI is charged with one count of sexual assault alleging occurring on May 16, 2009. The information was sworn on September 11, 2009. The Crown has proceeded summarily. Mr. Si seeks a stay of proceedings alleging unreasonable delay. [ 2 ] Mr. Si’s three day trial began on February 25, 2011, 17 ½ months after the information was sworn. [ 3 ] The framework for analysis is well known. The Court looks first at the length of time it has taken to bring a case to trial.

If long enough to cause concern, the court must examine the reasons for the delay, any prejudice caused by the delay as well as whether there was any waiver or other action by the accused that contributed to the delay or is otherwise relevant. All of these factors must be considered in light of the interests that

section 11(

b) is meant to protect and the societal interest that those charged with criminal offences have their guilt or innocence determined on the merits. If a delay is unreasonable, a stay of proceedings must be ordered. The Supreme Court has held that a delay of eight to ten months for a case to reach trial in the Provincial Courts would not be unreasonable. Those are important guidelines, but they are guidelines not fixed limitation periods. [ 4 ] The length of time between the swearing of the information in this case and the commencement of the trial on February 25 th is long enough to warrant an inquiry.

PRELIMINARY MATTERS [ 5 ] There is one preliminary matter to be raised. It is the practice in Scarborough that

section 11(

b) applications be heard at least three months before the scheduled trial. That practice is well known to counsel. The rationale for this practice includes saving court time should the application succeed, lessening the prejudice to an accused and lessening the inconvenience to witnesses should the application be granted. As is clear from this case, there are other benefits to this practice as well such as reducing the chances that trials themselves will have to be adjourned due to a failure to properly perfect a

section 11(

b) application. [ 6 ] Defence counsel served a voluminous

section 11(

b) application the night before trial. The Crown could not prepare a response before trial. Further, a similar-act witness was present from China to testify. The Crown moved that the

section 11(

b) application be dismissed summarily for failure to comply with the Rules of the Court. I dismissed the Crown’s motion and ruled that Mr. Si could argue his 11(

b) application but that the Crown would be given an opportunity to prepare a response. However, to not inconvenience the witness from China, and on consent, the trial began. That witness testified with the assistance of a Mandarin interpreter. Following that witness, the case was adjourned to enable the Crown to prepare its response to the 11(

b) application. The witness’s evidence took one day. A further day was then set for the evidence and argument on the 11(

b) and four days have been scheduled in July for the completion of the trial should the 11(

b) be denied. That would be approximately 23 months after the swearing of the information. The defenc e argues that the delay between February and July ought to attributable to the Crown or to institutional delay. CHRONOLOGY [ 7 ] I will review in detail the chronology leading up to the beginning of this trial. [ 8 ] Mr. Si was training to become a pastor. He was studying at the Toronto campus of the American Chinese Evangelical Seminary. In the course of his pastoral training, he worked at a Church in Toronto. [ 9 ] On May 16, 2009, it is alleged that he sexually assaulted a member of that church, Ms.

Z., while providing her pastoral guidance. Ms. Z. told her Pastor. Mr. Si was told to leave the church. The Church notified the Seminary. He was suspended from the Seminary and told he could re-apply once the charges were concluded. [ 10 ] The police were eventually notified and, on September 11, 2009, an information charging Mr. Si with the sexual assault of Ms. Z. was sworn. Mr. Si was arrested and brought to Court that same day where he was released on bail. [ 11 ] The Crown at the bail hearing advised the Court that they were aware of another similar incident involving Mr. Si that allegedly occurred in 2007.

The Crown consented to Mr. Si’s release on a $5,000.00 surety bail on condition that he not engage in “any work as a pastor or pastor in training”. At the bail hearing, the Crown indicated that he wanted to make that term as broad as possible. [ 12 ] Mr. Si’s first Court appearance following his release was on September 22, 2009. [ 13 ] Prior to that date, he had retained Mr. Juriansz. Mr. Juriansz wrote to the Crown indicating that he was retained and was seeking disclosure. [ 14 ] On September 22, 2009, a designation of counsel was filed.

The Crown asked that the matter be adjourned for three weeks to obtain disclosure. The matter was adjourned to October 15, 2009. [ 15 ] On October 15, 2009, the Crown advised the Court that there was a large amount of disclosure that had to be vetted and suggested adjourning to October 30, 2009. Defence counsel indicated that his client was “reserving” his 11(

b) rights. [ 16 ] On October 28, 2009, defence counsel wrote to the Crown again seeking disclosure. [ 17 ] By October 30, 2009, the Crown had provided the defence with substantial disclosure. They had disclosed the charge

screening form, the synopsis, CIPS material, copies of emails between Mr. Si and Ms. Du, witness statements from the Pastor, Ms. Du, Ms. Z. and Yau Li. Those materials were in Mandarin. The Crown provided English translations of some of those materials. The Crown also provided the police notes of a DVD interview with Yau Li. The Crown provided the notes of the officer in charge, as well as the notes of four other police witnesses.

The Crown provided the record of arrest and a police witness list including a brief synopsis of each officers’ involvement. [ 18 ] At the October 30, 2009 court appearance, defence counsel indicated that some DVD’s were outstanding. The parties agreed to an adjournment until November 27, 2009. [ 19 ] On November 27, 2009, the outstanding DVD’s were provided. A new information was placed before the Court charging Mr. Si with the 2007 sexual assault charge in addition to the 2009 charge. The notes of officers Tomlinson and Rose were also outstanding.

There was also an outstanding issue of whether the Crown would provide translations of certain documents that had been disclosed. [ 20 ] The case was adjourned until December 29, 2009. [ 21 ] According to the December 29 transcript, Mr. Juriansz indicated that disclosure was incomplete and that he wanted to speak to the Crown about severing the new charge. The Crown indicated that it had a large package of “duplicate” disclosure which it was providing to the defence.

Although it is not entirely clear, it appears that this disclosure consisted primarily of better photocopies of poorly copied disclosure previously provided. Defence counsel suggested that the case be adjourned to January 26, 2010 so that he could speak with the assigned Crown about severance. [ 22 ] On January 21, 2010, defence counsel wrote to the Crown advising that the notes of officers Tomlinson and Rose remained outstanding and that the notes of Officer Boyd were incomplete.

Defence indicated that they were still awaiting the translation into English of certain documents they had disclosed. [ 23 ] At the January 26, 2010 Court appearance, defence counsel advised the Court that he had conducted a pre-trial with a Crown several days earlier and was awaiting the Crown’s reply regarding the issue of severance. The Crown who conducted the pre-trial was not available so the case was adjourned until February 17, 2010.

Defence counsel alluded to “disclosure issues” and stated that he had to review recent disclosure to see if it was complete. [ 24 ] According to materials filed on this application, unbeknownst to defence counsel at the time he appeared in Court on January 26, 2010, Crown counsel had left him a voice mail message the night before stating that the Crown would not consent to severance. [ 25 ] According to the submissions of the Crown on this application, the disclosure provided on January 26 was quite minor. They disclosed the notes of the officer who worked the desk when Mr.

Si turned himself in and the notes of an officer who prepared an occurrence report. [ 26 ] On February 17, Mr. Juriansz advised the Court that he had just met with the Crown and the Crown and defence wanted the case adjourned to March 11. [ 27 ] According to Mr. Juriansz’s affidavit, on March 9, the Crown advised him that it would withdraw the 2007 charge but would seek to tender that evidence on a similar act application. On March 11, Mr.

Juriansz advised the Court of that fact and a judicial pre-trial was then set for April 7. [ 28 ] At the Court appearance that immediately followed the April 7 judicial pre-trial, the 2007 charge was withdrawn and February 25, 28 and March 1 were set for trial which was the time counsel believed was required for trial. Nothing was said about whether counsel or the Court had earlier dates. According to Mr. Juriansz’s 20-page affidavit filed on this application, his trial estimate was based upon his assumption that the similar act application would not proceed and that the Crown would not call the Pastor.

His affidavit states that he had earlier dates for trial but the Court did not [ 29 ] That is the chronology leading to the setting of the trial date in this case. PREJUDICE [ 30 ] Mr. Si swore a lengthy affidavit and testified on this application. Most of his affidavit details the history of disclosure in this case. However, he swears and has testified that he has been under considerable pressure over the year and a half as a result of the pending trial.

He has suffered and continues to suffer emotional, psychological and physical stress which he believes is due to the fact that he has been facing serious charges and was enduring that stress for a year and a half. The case had put financial pressure on him and he believes his reputation has been damaged by the outstanding allegations remaining unresolved. [ 31 ] His studies and his career as a pastor have been put on hold as a result of his bail conditions which prohibit him from engaging in work as a pastor or pastor in training. [ 32 ] His anxiety leaves him short of breath. He cannot eat or sleep well.

He has difficulty concentrating. He has nightmares. He has suffered depression as a result of these allegations and that depression has gotten worse over time. He saw his doctor as part of his annual physical. He told his doctor of some of the symptoms but not others. His doctor told him to try to relax. [ 33 ] At the time the allegations were made in May 2009, he was only three or four courses away from graduating from the Seminary.

[ 34 ] Upon learning of the allegations in May, the Pastor told Mr. Si that he was no longer welcome at the Church and wrote to the Seminary advising it of these allegations. The Seminary suspended Mr. Si advising him that, depending on the outcome, he could re- apply once the case was over. Since that time, the Seminary closed its Toronto branch. [ 35 ] Mr. Si testified that he was concerned that his memory has faded over time.

In cross-examination, however, he stated that he gave statements to the Pastor at the time of the allegations and those statements would refresh his memory. [ 36 ] Legal fees have been a financial burden. At this trial, there have been one and often two lawyers and a paralegal present at every appearance. [ 37 ] I accept Mr. Si’s credibility and evidence concerning the stress, anxiety and depression he has been suffering. While his stress was undoubtedly caused by the fact that he was charged, he has been living under that pressure throughout. It has not abated. If anything, it has increased.

I also accept that his pastoral studies and career have been put on hold while these charges remain outstanding. POSITION OF THE CROWN AND DEFENCE [ 38 ] The defence submits that all of the delay in this case is attributable to either the Crown or to institutional delay. At the front end, there were delays in disclosure and there were further delays caused by the laying and then withdrawing of the 2007 charge. Mr. Si never waived his right to be tried within a reasonable time. On the contrary, he retained counsel immediately and proceeded with diligence.

He has suffered prejudice. [ 39 ] The defence submits that the delay between the first day of trial, February 25 th until the end of the trial, should be attributable to the Crown or to institutional delay. The three days scheduled were not sufficient and would not have been even if the defence had brought the

section 11(

b) application on an earlier date. The defence submits that, when it estimated that three days were required for trial, it did not expect the similar act application to proceed as counsel did not believe the witness would attend from China. Further, the defence did not think the Pastor would be called. The defence also argued that the similar act witness from China did not need an interpreter and that that slowed the proceedings. [ 40 ] The Crown submits that the period to December 29 th should be considered neutral intake for disclosure.

The period between December 29 th and April 7 th should be attributable to the defence as there was no reason to delay the setting of the judicial pre- trial. The delay was the result of defence counsel wanting to persuade the Crown to agree to severance. Finally, the Crown submits that the prejudice was not caused by the delay but caused by decisions of the Church and the Seminary.

ANALYSIS AND FINDINGS [ 41 ] I apportion the time it has taken this case to reach trial as follows: September 11 to December 29 th – neutral intake ( 3 ½ months) Three and a half months is a reasonable intake period given the nature of this case, the addition of a new charge on November 27 th , assembling and reviewing disclosure and the translation issues. The Crown ought to have been in a position to advise the defence whether it was proceeding with that charge. By that time, almost all of the disclosure was provided and what remained ought not to have delayed the setting of a judicial pre-trial.

December 29 to March 11 th (2 ½ months) That period of time was largely pre-occupied by the issue of the 2007 charge and some minor disclosure issues. Defence wanted to persuade the Crown to agree to severance. The defence would not set a judicial pre-trial until it had the Crown’s response. Ultimately, on March 11 th , the Crown decided that it would withdraw the 2007 charge and use those allegations to support a similar act application. There was no reason to delay setting a judicial pre-trial until the Crown provided a definitive answer.

This was not the setting of a trial date but a judicial pre-trial where these kinds of issues can be discussed. The defence submits that, had the Crown made its decision more quickly, a judicial pre-trial could have been set earlier. The Crown submits there was no need to delay the setting of the judicial pre-trial. Had one been set, that would have forced the Crown to make a decision. Both positions are accurate and have some merit. Both the Crown and defence could have proceeded more efficiently with respect to these issues.

In the result, both bear some responsibility and I consider this period neutral for the purposes of

section 11(

b) assessment, except it adds to the overall length of time it has taken this case to reach trial. March 11 to April 7 th and April 7 th to February 25 th – institutional (11 ½ months). That is the length of time it took for the Court to be able to provide a judicial pre-trial and a three day trial. I accept that the defence had earlier dates but the Court did not.

February 25 to the new trial date of July 25 and thereafter. This delay was caused by the defence or is at best neutral. The late filing of the

section 11(

b) application derailed this trial and most of the delay was caused by that fact. Had the 11(

b) been filed in advance, the Crown would have had time to respond and the trial and the application would have been heard before trial. There would have been no need for a Crown motion to dismiss the 11(b). The other motions heard on the first date, did not take up much time.

If the original time estimate was indeed inadequate, and if that underestimation was caused by the defence mistaken assumption that the similar act application would not proceed, that was the fault of the defence as assuming that a similar act application would not proceed when told by the Crown that it intended to bring the application is not a reasonable basis to estimate the time required for trial.

For these reasons, the delay subsequent to February 25 th is mostly the result of the action of the defence. [ 42 ] Accordingly, the operative delay in this case is 11 ½ months, in the context of an overall period of 18 months between the swearing of the information and the beginning of the trial. That period is beyond the Morin guidelines suggested by the Supreme Court of Canada. [ 43 ] The 8-10 month period referred to in Morin was never intended as a judicially created limitation period beyond which charges could not proceed. As the Supreme Court recently stated in R. v.

Godin , [2009] the mere fact that guidelines have been exceeded in a particular case does not, on its own, make the delay unreasonable. It is a guideline. [ 44 ] The guidelines set by the Supreme Court of Canada may be expanded or contracted depending on all the circumstances. The Court must bear in mind the interests

section 11(

b) seeks to protect. Further, waiver, conduct short of waiver, and the presence or absence of prejudice, must be considered in assessing whether the delay has resulted in a violation of the right be tried within a reasonable time. [ 45 ] The right to be tried within a reasonable time seeks to minimize the prejudice to an accused that can be caused by delays in a criminal case reaching trial.

That prejudice can relate to the ability to defend oneself or have a fair trial (fair trial interests), to ongoing restrictions on one’s liberty pending a trial (liberty interests) or to prolonged stress and anxiety while awaiting trial (security of the person). Prejudice can be inferred by delay or specifically proven. [ 46 ] In this case, I am satisfied that there has been no prejudice to Mr. Si’s ability to make full answer and defence. As the evidence unfolded, he has not established any impairment to his ability to make full answer and defence. [ 47 ] With respect to restrictions on Mr.

Si’s liberty interests, there is a dispute between the Crown and defence as to whether it was Mr. Si’s bail or the Church and Seminary that prevented him from doing pastoral work or training. In my view, it was both and they are both connected to the charge. Even if Mr. Si is acquitted of the charge, the Seminary and the Church may choose to prevent him from studying any further. What is clear is that the bail does prevent Mr. Si from doing any pastoral training and he was suspended from the Seminary and told not to re-apply until his charges were concluded.

In my view, irrespective of the actions of the Church and Seminary, his bail imposed restrictions on Mr. Si and the delay in this case has prevented him from re-applying to the American Chinese Evangelical Seminary or any other Seminary. So, while those restrictions arose prior to these allegations, their resolution awaits the outcome of this trial. If he is found not guilty, he can then apply to resume his studies. It may be that he will or will not be permitted to return to his studies. The restrictions have been lengthened by these proceedings. That is a form of prejudice.

If one presumes his innocence, then that prejudice – prolonged throughout these proceedings, becomes even more apparent. In my view, he has suffered considerable prejudice. [ 48 ] In addition, it prejudice in the form of stress and anxiety that is alleged. [ 49 ] For many people charged with a criminal offence, they suffer stress and anxiety as a result of the uncertainty associated with outstanding criminal charges. In a very real sense, they put their lives and future plans on hold.

While that stress and anxiety is caused by the fact that they have been charged, the longer the delay in reaching trial, the longer they suffer. [ 50 ] That is obviously not true for everyone. Some people, by their words or conduct, demonstrate that they are not interested in having their case heard quickly. For those people, it can be inferred that they are not suffering the prejudice associated with the delay in their case reaching trial. [ 51 ] Where a court concludes that there is an absence of prejudice to any of the interests

section 11(

b) is meant to protect, that largely undermines the basis of the right. The absence of prejudice can be inferred from conduct. [ 52 ] It is clear that Mr. Si proceeded with considerable diligence retaining counsel and seeking disclosure prior to his first appearance. It is also true that the manner in which he brought the

section 11(

b) application virtually assured further delay in this case. That raises the question whether he was concerned about the delay in this case or was suffering prejudice as he now claims. [ 53 ] Ultimately, I do not find that the manner in which the 11(

b) was brought demonstrates a desire on Mr. Si part to delay the trial or that it reveals an absence of prejudice. I view that as the approach taken by counsel and not any attempt by Mr. Si to cause delay. In short, I accept his evidence about the stress he has been suffering awaiting the outcome of this case. I do not infer that he sought to delay the matter by filing a late 11(

b) application. [ 54 ] While there is much to criticize about the manner in which this 11(

b) was brought, in the end, I am not considering the time beyond the February 25 commencement of the trial but it does not cause me to infer that he wanted to delay the proceedings or was not prejudiced by the delay, [ 55 ] Eleven and a half months of operative delay is outside the upper end of the guidelines. The only reason for a delay was the inability of the court to provide a three-day trial any earlier. [ 56 ] I accept Mr. Si’s evidence concerning the stress and anxiety he has suffered. While his evidence in this regard is similar to the prejudice that is often inferred, it is even greater.

I do believe that, not only has his potential vocation been placed on hold, I find that he has been depressed if not in anguish throughout the last 18 months. I did not find that he was embellishing his evidence.

[ 57 ] His stress and anxiety while awaiting trial must be balanced with the societal interest in having his guilt or innocence determined on their merits. Society also has an interest that those charged, and who are presumed innocent, are prosecuted within a reasonable time as is their constitutional right. It is in society’s interest to minimize the prejudice accused persons face while awaiting their criminal trial. A trial within a reasonable time benefits the accused and the public by ensuring that

summary trials are heard quickly, when witnesses’ memories are fresh. [ 58 ] In 2005, the Ontario Court of Appeal in R. v.

Rego upheld a stay of proceedings in a case where the operative delay was just over 12 months stating: “This twelve months is well outside the eight to nine month guideline for a straightforward case in Peel Region Ontario Court of Justice”. [ 59 ] Balancing the above factors, including his having retained counsel prior to his first appearance, as well as the fact that he has suffered prejudice to his liberty interests and to his security of the person in the forms discussed, the 11½ month delay in took to provide Mr. Si with his trial violated his right to be tried within a reasonable time.

The charges will be stayed. Released: June 27, 2011 Signed: “Justice H. Borenstein”