R. v. Liang, 2011 ONCJ 458

COURT FILE No.: Central East - Newmarket 4911-998-11-06118-00 DATE: 2011·08·24 Citation: R. v. Liang , 2011 ONCJ 458 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — HUI DONG LIANG Before Justice K.P. Wright Heard on July 7, 2011 Reasons for Judgment on Charter Application released on August 24, 2011 Ms. J. Rodopoulos ...................................................................................................... for the Crown Ms. D.

Pledge .................................................................................. for the accused Hui Dong Liang WRIGHT J.: Overview [ 1 ] On September 28, 2010, the applicant, Hui Dong Liang appeared before this court for his trial on one count of impaired driving and one count of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. On July 7 th , 2011, Mr.

Liang brought an application pursuant to s. 24(1) of the Canadian Charter of Right and Freedoms for a stay of proceedings on the basis that his right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter had been infringed. Chronology and Relevant Time Lines October 28, 2009 Mr. Liang was charged with impaired driving and over 80. The information was sworn on November 12, 2009. December 18, 2009 First appearance / Mr. Liang does not attend, a designation is filed / disclosure and charge screening / Defence request January 22 for Crown pre-trial and file review January 22, 2010 Set judicial pre-trial (no transcript provided) February 8, 2010 Trial date of September 28, 2010 / Mandarin interpreter ordered September 28, 2010 First trial date – matter does not finish – the continuation date of December 15, 2010 is set in accordance with the Mandarin interpreter’s

schedule – December 6 was available to counsel but the interpreter was not available on that date December 15, 2010 Second day of trial – matter does not complete and is put over to February 3, 2011 – interpreter was ordered and confirmed February 3, 2011 Third trial date – all parties informed that the accredited interpreter had lost her standing. A non-accredited interpreter attended – a voir dire was held and he was found not acceptable. Matter was put over to February 4, 2011 to find a date that an accredited interpreter could attend.

February 4, 2011 Matter was put over to February 11, 2011 - still seeking a date that an accredited interpreter could attend. February 11, 2011 Continuing trial date of July 7, 2011 was set in accordance with the accredited interpreter’s

schedule July 7, 2011 Fourth trial date – 11(

b) application

Legal Principles [2]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within areasonable time. The primary purpose of s. 11(

b) is to protect the individual rights of the accused. This protection encompasses securityof the person, liberty and fair trial interests. It also recognizes that society has an interest in ensuring that persons are tried promptly andfairly on the merits. See R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.) and R. v. Qureshi et al (2004), (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.). [3] The principles that govern an application to stay proceedings by reason of delay are well known and werecomprehensively set out by the Supreme Court of Canada in R. v. Morin, supra.

A court considering such an application is required tolook at four factors: length of delay, reason for delay, waivers of any time periods and prejudice. [4] While delay is to be analyzed in accordance with these four factors, the determination of reasonableness is not amathematical one. Rather, a balancing must take place and the totality of the circumstances, including explanations for delay, must betaken into account. [5] The burden of proof is upon the applicant to establish on a balance of probabilities that his right to be tried within areasonable time was violated.

Analysis [6] The total length of delay in this case from the time the information was sworn until the July 7th, 2011 trial date is 19months and 25 days. [7] The Crown concedes that this length of time warrants an inquiry. [8] The Crown concedes that there were no expressed waivers by the applicant of his Charter rights. [9] There is no dispute that the intake period from the time the information was sworn until the judicial pre-trial dateshould be considered neutral.

This time period runs from November 7, 2009 until January 22, 2010 and accounts for two months and 10days of the overall delay. [10] There is also no dispute that from January 22, 2010, the judicial pre-trial date, until the first trial date of September 28,2010 amounts to eight months and seven days of institutional delay. [11] There is also no dispute that from the third trial date of February 3, 2011 until the fourth trial date of July 7th, 2011should be considered institutional delay.

The trial did not continue on February 3, 2011 as scheduled because the accredited Mandarininterpreter, who had assisted on the first two trial dates, lost her standing. As such, a non-accredited interpreter attended and a voir direwas held to determine competency. The interpreter was deemed not competent and as a result the trial could not continue. At this stageit became abundantly clear that setting a continuing trial date was dependent on the availability of an accredited Mandarin interpreter. The earliest date that could be confirmed was July 7th, 2011.

Given that s. 14 of the Charter guarantees the right of the accused to theassistance of an interpreter, and it is the responsibility of the Ministry of the Attorney General to provide a competent interpreter, thelack of an interpreter for Mr.

Liang amounts to five months and four days of institutional delay. [12] The main areas of controversy in the application concern the time from September 28, 2010 to February 3, 2011. [13] The Crown argues that because the initial time estimate was not accurate and the matter took longer than anticipated, thetwo months and 17 days between the first and second trial date should be considered neutral. I agree, except for the 10-day periodbetween December 6 and December 15. It is clear from the record that but for the scheduling of the interpreter the second trial datewould have commenced on December 6, 2010.

That 10-day period is wholly attributable to the shortage of accredited Mandarininterpreters and should therefore be considered institutional. [14] The second area of controversy covers the time frame between the second and third trial date, December 15, 2010 toFebruary 3, 2011. Although it is clear that the interpreter’s

schedule played a role in securing the date, the record is unclear as to thedegree it played in securing a date. As such, I find that one month and 19 days to be a neutral time period. [15] I am satisfied that the 13 months and 21 days of delay was due to a shortage of accredited Mandarin interpreters and assuch must be categorized as institutional delay. Prejudice [16] As stated earlier, the primary purpose of s. 11(

b) is to protect the right of the accused to security of the person, liberty anda fair trial. [17] Mr. Liang’s claim of prejudice falls into two of those three categories. [18] Firstly, Mr. Liang asserts that the delay has compromised his security of the person. He claims that he has suffered real

prejudice in the form of stress, depression and sleeplessness. There is no reference in the applicant’s materials as to the onset of these conditions. I am unable to discern whether these conditions stem from the criminal charges or are directly attributable to the delay. I do however accept that stress can be cumulative and that the delay can continue to have an impact on already established stress. I am prepared to infer that Mr. Liang has continued to suffer prejudice as a result of the delay and I do not find that the Crown has successfully negated that inference. [ 19 ] Secondly, Mr.

Liang asserts that his right to a fair trial has been infringed by the delay in the proceedings. On July 7, 2011, in addition to making submissions on this application, three witnesses testified on the trial proper. Two of the witnesses were police officers and the third was a civilian witness call by defence counsel. All three witnesses testified that they were having difficulty recalling the incident in detail due to the passage of time. In my view this does compromise Mr. Liang’s right to a fair trial and amounts to real prejudice suffered by Mr. Liang. [ 20 ] In my view, Mr.

Laing has demonstrated real and inferred prejudice flowing from the delay. Conclusion [ 21 ] In assessing and balancing the individual’s interest and the societal interest in having a case tried on its merits, I am satisfied that Mr. Liang’s right pursuant to s. 11(

b) of the Charter , to be tried within a reasonable time was, on this occasion, infringed. [ 22 ] Accordingly the charges of impaired driving and over 80 will be marked stayed, pursuant to s. 24(1) of the Charter . Released: August 24, 2011 Signed: “Justice K.P. Wright”