R. v. Cheung, 2011 ONCJ 585

Citation: R. v. Cheung , 2011 ONCJ 585 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ HELEN CHEUNG and QUYEN NGUYEN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) J. Mitschele For the Crown A. Ghosh For the Defendant Cheung J. Giuliana For the Defendant Nguyen Heard: October 19, 2011 REASONS for RULING (Re Charter S. 11(

b) Application) MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] The defendants Helen Cheung and Quyen Nguyen were charged with offences related to the production of marihuana on January 11, 2010, following the execution of a search warrant. They elected trial in the provincial court, the Ontario Court of Justice, and their trial is scheduled to begin on November 17, 2011, more than 22 months after they were first arrested and charged. [ 2 ] The defendants submit that approximately 18 months of this period is attributable to institutional factors and Crown delay.

As a result, they say, their Charter-protected right to be tried without unreasonable delay has been infringed and their charges should be stayed by way of constitutional remedy. The Crown agrees that the length of delay is such as to command Charter scrutiny.

However, it asserts that the systemic and Crown delay amount to only about 13 months, short of that which may be properly said to amount to a constitutional breach or afford a terminal remedy in view of the gravity of the offences charged, the absence of latches on the part of the Crown and the minimal prejudice suffered by the defendants. [ 3 ] I now turn to my review of the record that provokes these opposing arguments, my resolution of the core issue and the reasons for that determination.

B. THE

SECTION 11(

b) ANALYTICAL FRAMEWORK [4] What immediately follows is a general scaffolding of the Charter right to be tried without unreasonable delay. [5]

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) must also be considered: R. v. Askov (1990), (SCC),59 C.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. [6] The factors that inform the calculus of s. 11(

b) analysis have long been settled. As set out in R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1, they include: 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. [7]

Section 11(

b) analysis requires a judicial ÒbalancingÓ of the length of the delay as assessed in light of these factors and theinterests protected by the constitutional provision. In R. v. Godin, supra, at para. 18, the Supreme Court succinctly summarized thenature of this exercise: 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 of particular periods of delay. [8] The applicants, as with all assertions of Charter infringement, bear the burden of establishing a violation of their s. 11(b)rights. No arithmetical formula determines the reasonableness of pre-trial delay. However, the administrative guidelines articulated bythe Supreme Court in Morin afford considerable assistance. As there set out, the standard for permissible institutional or systemic delayin the case, as here, of a provincial court trial is eight to ten months. (See, also, 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 elasticquality and depend on a variety of factors, including the nature and extent of the prejudice suffered by accused persons as a result,importantly, not of the charges themselves but, rather, of the delay attending their prosecution. The normative inclination in the nearlytwo decades since Morin is in the direction of reduced tolerance for institutional delay. Molloy J. addressed this evolution in R. v.Stephens, [2007] O.J.

No. 3500 (S.C.), at para. 67, when she wrote, Òin determining when delay can be said to be ÔunreasonableÕ,courts are increasingly looking to the bottom of the Morin guidelines, rather than to the extreme upper limitsÓ. (See also: R. v. Sharma(1992), 71 C.C.C. (3d) 186 (S.C.C.) at 194; and R. v. Meisner, [2003] O.J. No. 1948 (S.C.); R. v. Osei, [2007] O.J. No. 768 (S.C.) atparas 39-40.) [9] As to the appropriate and just remedy once a breach is found, I note that the Court of Appeal in R. v. Thomson, 2009 ONCA771, at paras. 9-10, re-affirmed that a stay of proceedings is the only fit redress once the s. 11(

b) hurdle of Òunreasonable delayÓ iscrested. Unlike other claims for such relief, the standard of Òclearest of casesÓ has no application, nor need prejudice to a defendantÕsright to a fair trial or right to make full answer and defence be established to attract the constitutional remedy here sought. C. APPLYING THE ANALYTICAL FRAMEWORK [10] The two defendants were charged on January 11, 2010 with drug-related offences referable to a Ògrow opÓ enterprise. Thedefendant Cheung was arrested that day and her co-accused, Nguyen, a few days later.

Their trial is scheduled to commence onNovember 17, 2011, more than 22 months after the commencement of their prosecution. There is no suggestion that the defence waivedany of this delay. Nor does their conduct evince a tactical exploitation of the delay, any trial avoidance or, with one relatively minorexception, any conduct for which the defendants can fairly be held responsible in the calculation of delay. The defendants promptlyretained counsel, took the initiative in seeking the release of a sealed Information to Obtain a Search Warrant (the ÒITOÓ), agreed to the

earliest dates proffered by the court for mandatory hearings, elected a one-stage trial in the Ontario Court of Justice, and never applied to adjourn their hearing dates. The analysis that follows necessarily focuses on the reasons for the 22 months of delay and whether, in view of any prejudice suffered by the defendantsÕ and the interests protected by s. 11(b), that lengthy delay is constitutionally tolerable. [ 11 ] The police investigation was effectively complete on the day a search warrant was executed at the defendantsÕ premises.

Following their arrest, both defendants were quickly released on substantial but not particularly onerous recognizances. Initial and almost complete disclosure (but for the ITO) was provided at their first subsequent hearing, on February 24, 2010, thereby attesting to the relative simplicity of the prosecution. The matter was then remanded to March 10 th to permit counsel to review these materials. On doing so, it became readily apparent the CrownÕs case largely rested on the execution of a search warrant, the ITO for which remained sealed.

The now routine procedure in this courthouse, at least with respect to search warrants that generate drug-related charges, is that, on a defence request, the federal Crown applies for an order unsealing the ITO for release to its office for purposes of vetting and, if necessary, redaction before disclosing it to the defence.

Somewhat unusually, defence counsel, on the March 10 th appearance, indicated that the defence would bring the necessary unsealing application itself. [ 12 ] The defence unsealing application had not been brought by the next return date (April 7, 2010) but defence counsel reiterated its intention to promptly do so. But for the ITO and some relatively inconsequential additional material, all of the disclosure had by then been provided and Crown counsel pressed the defence to fix a Crown pre-trial.

The defendants demurred, effectively taking the position that, given the potential criticality of the ITO, the defence should have an opportunity to review it before there could be any meaningful conversation with the Crown. [ 13 ] I have considerable sympathy for the defence position. In my view, an ITO in a prosecution dependent on the fruits of a judicially authorized search is not within the category of Òevery last bit of evidenceÓ, the delayed disclosure of which cannot be relied on by the defence to justify its refusal to take preliminary steps such as attending pre-trials. (See R. v.

Richards , 2010 ONSC 6202 , at para. 22 .) A functional analysis, focused on the purpose of such pre-trials, is essential. [ 14 ] In most prosecutions involving a search warrant it is difficult to imagine how, absent disclosure of an ITO, an informed discussion, either at a Crown or judicial pre-trial, can occur respecting a possible resolution or identification of the issues that a case raises or the resources that need be dedicated to their adjudication.

Without the ITO the defence cannot be expected to assess whether any Crown resolution offer is realistic, nor the nature of its election, nor whether a s. 8 Charter application will be brought, nor whether that application will be preceded by one directed at an examination of the ITO affiant. Nor, accordingly, will the parties be able to confidently estimate the number of witnesses that may be required to conduct a preliminary inquiry or trial, or the time and court resources needed to accommodate their evidence, or the time that should fairly be devoted to submissions in support of the opposing arguments.

Given these realities, Crown counselÕs insistence that the defence set a date for a pre-trial hearing is little more than an exercise in record-building rhetoric, of no greater moment in the calculus of unreasonable delay than defence counsel baldly asserting his or her clientÕs s. 11(

b) rights. Although not critical to this assessment, some concrete measure of the importance of the disclosure of the ITO in the instant case may be gleaned from defence counselsÕ very timely filing of a constitutionally-grounded challenge to the search conducted at their clientsÕ premises. [ 15 ] All of that said, no liability may here be properly ascribed to the Crown for failing to promptly initiate a motion to unseal the ITO. Defence counselÕs March 10 th announcement of its intention to do so relieved the Crown of this obligation.

Responsibility for the unexplained failure to take any action over the course of the month between March 10 th and April 7 th can thus be assigned to the defence. However, as unsealing applications require some preparation and scheduling, I am of the view that only two weeks of this one- month adjournment is properly borne by the defence in the s. 11(

b) accounting. In any event, the defence did succeed in having the ITO unsealed, for purposes of release to the Crown, well in advance of the next return date, April 29, 2010. The matter was then remanded to May 20 th to permit Crown vetting and, if necessary, redaction of the ITO. [ 16 ] While the defence initiative respecting the ITO unsealing order spared the Crown having to perform this threshold step, any inordinate delay in the subsequent vetting and redaction process falls to the Crown to explain.

Including May 20 th , the defence attended court on six occasions between that date and August 9 th for purposes of securing disclosure of the ITO and then fixing a pre-trial conference. On each occasion the Crown advised the court that this crucial disclosure was not available. On at least two occasions the defence indicated that it was prepared to collect the ITO between court appearances and endeavour to have a Crown pre-trial before the subsequent return date.

The ITO was finally delivered to the defence, by courier, on August 10, 2010, some four months after it was judicially ordered unsealed for release to the Crown. By the next scheduled appearance, August 25, 2010, the defence had digested the ITO, set and held a Crown pre-trial and was prepared to fix a judicial pre-trial (JPT) despite some still outstanding, if far less significant, disclosure (such as a videotape of the alleged grow-op). [ 17 ] The four-month period between the unsealing of the ITO and its ultimate disclosure to the defence attracts more granular scrutiny for purposes of s. 11(

b) analysis. First, I note that Crown counsel here advises that in the ordinary course it takes approximately two weeks for ÒCourt SupportÓ (the court office that maintains custody of sealed ITOs) to deliver them to the designated Crown office once they are ordered unsealed. For some reason this process occupied four weeks in the case at bar. Frankly, I have some difficulty understanding why the Crown recipient of the unsealing order cannot simply attend at Court Support with the formal order on the day the order is issued (or, at latest, the next) and collect the sealed ITO.

Further, no explanation has been tendered as to why the mere passage of a document from one office to another required a month in this case, or why the Crown did not press for earlier release of the ITO once the conventional wait period had been exceeded. In my view, and based on the absence of any explanatory record, the transfer of the ITO from court custodian to Crown ought to have taken no more than one week.

The further three weeks consumed by this process is properly attributable to institutional factors. [ 18 ] This still begs the question of why it took the Crown a further three months (from May 12 th , when it received the ITO, to August 10 th , when it finally provided a vetted copy to the defendantsÕ counsel) to make disclosure of this document. Understandably, the vetting process requires a Crown meeting with the ITO affiant to scrupulously ensure that the final editing in no way reveals the identity or otherwise jeopardizes the security of a confidential informant.

However, beyond this commonplace if honourable justification

I, again, have been afforded no explanation as to why this process here absorbed some three months. Indeed, I am advised that the affiant, inexplicably, did not even attend for a meeting with the Crown to review the ITO until August 5th, almost three months after theITO was in the CrownÕs possession. Once the affiant finally appeared, the entire vetting, redaction and disclosure process consumedonly five days. [19] The police and the Crown are indivisible for purposes of the timeliness of s. 11(

b) disclosure analysis. In my view, in theabsence of an evidentiary foundation to infer otherwise, and consistent with the position I have earlier taken (see R. v. Morris, [2010]O.J. No. 1406 (C.J.), at para. 52), the ITO vetting, redacting and disclosure exercise should not have taken longer than four weeks. Accordingly, the two additional months are properly attributable to the Crown in the s. 11(

b) calculus. [20] On August 25, 2010 the case was remanded to October 18th, with a mandatory JPT scheduled to immediately precede thatappearance. The JPT was adjourned due to a scheduling conflict involving one of the defendantsÕ counsel who was then engaged in a murder trial. It was finally held on the next scheduled date of December 22nd. Defence counsel sought an opportunity to meet with theirclients and obtain instructions following this JPT conference, and trial dates were finally fixed on January 12, 2011, more than a yearafter the two defendants were first charged.

The trial was then scheduled to commence on November 17, 2011 Ð some 10¼ months laterand more than 22 months after the defendantsÕ arrests. A preliminary s. 11(

b) motion was set down for, and argued, on October 19,2011. [21] Counsel for all parties agree that the period from October 18, 2010 to January 12, 2011 should be treated as neutral in the s.11(

b) assessment and, further, that the interval between the date on which the trial was fixed (January 12, 2011) and the scheduled trialdate (November 17, 2011) is properly categorized as institutional delay.

While I may have parsed these stages somewhat differently, Isee no pressing reason to disturb the net result of counselsÕ shared legal characterizations of these periods. [22] As for the interval between August 25th and October 18th, 2010 (the date fixed for the first scheduled JPT), Crown counselsubmits that the delay consumed by this span should be evenly divided between institutional delay and the inherent time requirements ofthe case. The defence, on the other hand, urges that the entire 54 days be allocated to institutional or systemic factors. Support for thelatter proposition may be found in R. v.

G. (C.R.), supra, at para. 30 and R. v. Rego (2005), (ON CA), 204 O.A.C.281, at para. 4, where the Court of Appeal held that the Òdelay from the time when the parties were ready for trial É and the judicial pre-trial is part of the systemic delayÓ. Soon after, in R. v. M. (N.N.) (2006), (ON CA), 209 C.C.C. (3d) 436, at para.33, the same Court, referencing G. (C.R.), explained that Òthe delay needed to

schedule the judicial pre-trial is properly considered to beinstitutional delay [but] the time that the parties require to prepare for and conduct the pre-trial is inherent timeÓ. The Court of Appealaffirmed this refinement in R. v. Cranston (2008), 2008 ONCA 751 , 244 O.A.C. 328, at para. 46 and, more recently, in R. v.Khan (2011), 2011 ONCA 173 , 270 C.CC. (3d) 1, at para. 53. With all due respect, this appellate fine-tuning of G. (C.R.) doesnot unambiguously resolve the question of the proper characterization for s. 11(

b) purposes of the period preceding and encompassing aJPT. Indeed, one knowledgeable commentator, on canvassing this very same jurisprudence, concluded his recent review by expresslywelcoming Òfurther guidance on the Ôinherent time requirementsÕ vs. Ôinstitutional delayÕ issueÓ: S. Latimer, ÒDefining JPT time for

section 11(

b) purposesÓ, (2011), 84 C.R. (6th) 244. In the end, and as proposed by Crown counsel, I am persuaded that, in the factualcircumstances of this case, the equal division of these 54 days between these two s. 11(

b) analytical heads appropriately reflects theinterests and equities identified by the Court of Appeal. [23] The global delay from charge to scheduled trial date is 675 days, or nearly 22½ months. Relying on the preceding factoralallocations, I have concluded that two months of this period is properly characterized as delay attributable to actions of the Crown and, inaggregate, a further 12 months are properly assigned to institutional or systemic considerations.

In total, then, some 14 months of acumulative delay of almost 22½ months have nothing to do with the intake process or other inherent time requirements of the case orwith the conduct of the defence but, instead, can fairly be ascribed to various facets of state conduct or management that, in the end, havesignificantly impeded the defendantsÕ securement of a trial conducted within a reasonable time, at least as measured by the Moringuidelines for a one-stage trial. [24] However, and as earlier noted, the Morin guideline of eight to ten months for a trial conducted in provincial court contemplatessome prejudice-contingent elasticity.

Code J., in Richards, supra, at para. 32, referred to the guideline as Òreally more in the nature of asliding scaleÓ dependent on the demonstration of prejudice. And, in Morin, at para. 28, the Supreme Court observed that, Òdeviationsof several months in either direction can be justified by the presence or absence of prejudiceÓ. While the evidence of specific or actualprejudice is relatively scant, I am satisfied, given the overall delay, that an inference of cognizable prejudice is virtually irrefutable in thecase before me. As the Supreme Court commented in R. v.

Godin, supra, at para. 31, The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, even in theabsence of specific evidence of prejudice, Òprejudice may be inferred from the length of the delay. The longer the delay the more likelythat such an inference will be drawn.Ó Here [as in the instant case], the delay exceeded the ordinary guidelines by a year or more, eventhough the case was straightforward. [Emphasis added.] (See, also, R. v. Pusic (1996), (ON SC), 30 O.R. (3d) 692 (G.D.), at para. 173.) [25] In

summary, I find that the length of the overall delay in the case at bar, particularly when considered in light of both thedefendantsÕ repeated efforts to move their trial forward and the state-attributable delay that extended that objective significantly beyondthe Morin guidelines, well establishes the prejudice to security interests against which s. 11(

b) is intended to protect. [26] The ultimate balancing of the length of the delay in view of the interests protected by s. 11(

b) commands consideration ofsocietal interests as well as those of the defendants. There can be no doubt that commercial marihuana cultivation is a matter of persistentconcern. Still, one must bear in mind that such offences attract no minimum penalty and that, in this courthouse, a sentence served in thecommunity is a fairly common disposition upon conviction, at least for first offenders of unblemished antecedents. Further, and unlikesome similar charges, the allegations in this case do not include such aggravating factors as hydro bypasses, the presence of children orweapons, or the occasion of violence.

In the end, I am satisfied that the defendantsÕ trial has been unreasonably delayed and,

accordingly, a stay of proceedings must follow. D. CONCLUSION [ 27 ] For the reasons here set out and pursuant to s. 24(1) of the Charter, I order the charges against both defendants stayed. Released on November 10, 2011 __________________________ Justice Melvyn Green