R. v. Cercone, 2013 ONCJ 685

COURT FILE NO.: St. Catharines - 2111-999-10-3873-00 DATE: 2013·12·09 Citation: R. v. Cercone , 2013 ONCJ 685 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RENATO CERCONE Before Justice D.A. Harris Heard August 26, 2013 Released December 9, 2013 P. Riley ............................................................................ prosecutor for the Crown/Appellant R.

Charlebois ................................. counsel for the Defendant/Respondent, Renato Cercone REASONS FOR JUDGMENT HARRIS J.: OVERVIEW [ 1 ] Renato Cercone was charged with speeding and drive suspended on April 26, 2010. [ 2 ] On March 13, 2013, the presiding Justice of the Peace stayed these charges pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that Mr. Cercone’s right to be tried within a reasonable time, as guaranteed by

section 11(

b) of the Charter , had been infringed. [ 3 ] The Crown has appealed against that decision. THE LAW [ 4 ]

Section 11(

b) of the Canadian Charter of Rights and Freedoms provides that “Any person charged with an offence has the right to be tried within a reasonable time”. [ 5 ] The primary purpose of

section 11(

b) is to protect the individual rights of the accused to liberty, security of the person and to a fair trial. [1] [ 6 ] There is a secondary societal interest in having cases tried on their merits – a matter important to the maintenance of respect for the administration of justice. [ 7 ] This application therefore requires a judicial balancing with an examination of the delay and its evaluation in light of various other factors in order to determine whether the delay is reasonable. This balancing requires consideration of: l. The length of the delay; 2. Waiver of time periods; 3. 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. [2] [ 8 ] In this case, the Appellant agreed that the presiding Justice of the Peace stated the law correctly but argued that she erred in her application of it. In particular, she erred in: 1. Attributing responsibility for 17 months and 10 days of delay to the Crown; 2. Finding that Mr. Cercone had not waived any delay by his nonattendance in court; and 3. Inferring that Mr. Cercone had suffered prejudice as a result of the delay. LENGTH OF THE DELAY [ 9 ] The total delay in this case from charge to stay of proceedings was just over 34 months.

This delay was certainly sufficient to invite judicial scrutiny. [ 10 ] In order to attribute responsibility for any delay, it is necessary to review the chronology of events. CHRONOLOGY [ 11 ] Mr. Cercone was charged with speeding and drive suspended on April 26, 2010. He was given a summons requiring him to appear in court on June 15, 2010. [ 12 ] Mr. Cercone did not attend court on June 15. No one appeared on his behalf.

He did not communicate any reasons for this with anyone. [ 13 ] The Crown prosecutor advised the Justice of the Peace presiding that day that the Crown would be seeking a custodial penalty should Mr. Cercone be convicted. He suggested that a date be set for the hearing of the trial and that a bench summons be issued and served on Mr. Cercone in accordance with the suggestion of the Ontario Court of Appeal in R. v. Jenkins [3] . [ 14 ] In that case, the Court of Appeal stated that section 54(1)(

a) of the Provincial Offences Act was constitutional and that: The court has jurisdiction to proceed with an ex parte trial when the conditions precedent under the statute are met. Whether the court should do so, will depend on the circumstances. The exercise of that discretion in a specific case is reviewable on appeal. [4] [ 15 ] Prior to that however, the Court of Appeal stated: The court was told in oral argument that there are no formal guidelines in place to assist prosecutors in deciding when to request an ex parte trial.

In every case where the prosecutor will seek a custodial sentence upon conviction, the prosecutor would be well-advised to consider whether an ex parte proceeding is appropriate. The longer the period of imprisonment sought, the less inclined the prosecutor should be to request an ex parte trial. If the prosecutor ultimately decides that it would be proper to proceed ex parte, he or she should advise the trial judge, before the trial begins, of their intention to seek a custodial sentence and the range of sentence that they anticipate will be appropriate.

The trial judge can use this information to decide whether to proceed with the trial or take other action, such as adjourn the hearing and issue a warrant for the defendant's arrest. [5] [ 16 ] I note here that the relevant part of section 54(1) provides: Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, ... the court may, (

a) proceed to hear and determine the proceeding in the absence of the defendant; or (

b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant. [6] [ 17 ] In other words, the options included setting a date for the hearing of a trial and issuing a bench summons, just as the Crown prosecutor asked. [ 18 ] Without explaining why, the Justice of the Peace presiding that day decided “I’m just going to set it for trial in absentia”,

which he then did. He adjourned the matter for trial on January 24, 2011 and “indicated on the record that the Jenkins issue was addressed”. [ 19 ] Mr. Cercone did not attend court on January 24 and no one appeared on his behalf. Again, he did not communicate any reasons for this with anyone. [ 20 ] The Crown prosecutor asked the Justice of the Peace presiding that day [7] to set a further date for the hearing of the trial and requested that a bench summons be issued and served on Mr.

Cercone. [ 21 ] This time the Justice of the Peace issued the bench summons but only adjourned the case until April 5, 2011 for the purpose of setting a date for trial. [ 22 ] The summons was issued and served on Mr. Cercone. [ 23 ] He did not attend court on April 5 and no one appeared on his behalf.

Again, he did not communicate any reasons for this with anyone. [ 24 ] That Justice of the Peace adjourned the matter until November 7, 2011 for an ex parte trial. [ 25 ] Five days before that, on November 2, 2011, the Crown prosecutor applied for an adjournment of that trial because the investigating police officer was also scheduled to be in another Provincial Offences Court for the whole day on November 7. [ 26 ] The trial was adjourned to July 4, 2012. [ 27 ] Fifteen days before that, on June 20, 2012, counsel appeared for Mr.

Cercone and applied for an adjournment so that he could prepare for trial and bring an application to stay the proceedings on the basis that Mr. Cercone’s right to be tried within a reasonable time, as guaranteed by

section 11(

b) of the Charter , had been infringed. [ 28 ] This was the first time that Mr. Cercone had appeared in court, either personally or by counsel or representative. [ 29 ] The Justice of the Peace sitting that day allowed the application and adjourned the matter until July 3, 2012 to set a new date for trial. [ 30 ] On July 3, the trial date of January 23, 2013 was scheduled. [ 31 ] On January 23, 2013, the parties made their submissions with respect to the Charter application.

The presiding Justice of the Peace reserved judgment until March 13, 2013. [ 32 ] On March 13, 2013 she stayed the charges. [ 33 ] She decided, inter alia , that Mr. Cercone had not waived any delay by his nonattendance in court. [ 34 ] She attributed responsibility for 17 months and 10 days of delay to the Crown, with 10 months and 20 days of delay attributed to inherent/neutral delay and six months and 20 days of delay attributed to Mr. Cercone. [ 35 ] She concluded by inference that Mr. Cercone had suffered prejudice as a result of the delay. [ 36 ] I will deal with each of these findings separately.

WAIVER OF TIME PERIODS [ 37 ] With respect to waiver, the onus is on the Crown to prove or establish waiver. A waiver must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect a waiver will have on these rights. The notion of waiver contemplates a choice has been made between available options. Where no real choice or option exists there can be no waiver.

Agreements to a date within the proceedings in question does not constitute waiver where the agreement can be reached reasonably and fairly characterized as mere acquiescence in the inevitable. [8] [ 38 ] It is the duty of the Crown to bring an accused person to trial. This requires that the prosecution apparatus and the government strive to expedite the trial to minimize the effect that is inherent in delay in the disposition of criminal litigation. There is no constitutional imperative upon the accused to bring himself or herself to trial. The protection of

section 11(

b) of the Charter is not restricted to those who demonstrate a desire for a speedy resolution by asserting the

section 11(

b) right. [9] [ 39 ] Silence and acquiescence in the face of Crown requests for adjournments or in accepting the trial date that is offered clearly do not constitute waiver. [ 40 ] That being said, it could certainly be argued that absenting oneself from the trial process entirely is more than silence and acquiescence. [ 41 ] This is especially true when, as here, the decision was to ignore a second summons [10] for more than a year and then appear by counsel just 15 days before the scheduled trial in order to ask for an adjournment. [ 42 ] The presiding Justice of the Peace rejected that argument however and decided that Mr.

Cercone had not waived any delay. [ 43 ] I will address that point further, later in this judgment.

PREJUDICE TO THE ACCUSED [ 44 ] Everyone suffers prejudice as a result of being charged. This is inherent in the process itself. The prejudice of concern in the

section 11 (

b) analysis is not prejudice associated with the laying of criminal charges but the prejudice arising from the delay in processing or disposing of the charges. [ 45 ] A court may infer or presume the existence of prejudice or it may be otherwise proven. Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. The inference of prejudice from a very long delay becomes nearly irrebuttable. [11] [ 46 ] I would not however, have concluded that Mr. Cercone was prejudiced by the delay in this case. [ 47 ] Mr.

Cercone did not file any affidavits containing any information regarding possible prejudice. Nor did he present any evidence in court. [ 48 ] He was not subject to any bail terms let alone onerous ones. [ 49 ] He did not suggest that he was feeling emotional or other stress as a result of the existence of the outstanding charges.

While one might infer that anyone would be stressed in those circumstances, I would note that it would be equally reasonable for one to infer that if someone was experiencing stress as a result of outstanding charges, then he would appear in court in order to deal with them. [ 50 ] There is nothing to suggest that the evidence in this case might have deteriorated over time. Common sense would suggest otherwise. As I see it, there were only two issues in this case with respect to the drive suspended charge. The first was whether Mr. Cercone was driving a motor vehicle at the time and in the place specified.

The second was whether his licence was suspended at that time. I do not see how the memories of any witnesses or the quality of any other evidence with respect to those facts would have been affected over time. [ 51 ] Similarly, with respect to the speeding charge, the issues are just as simple. In addition I note the comments of Doherty J.A. in R. v.

Omarzadah where he said “that any "stigma" arising out of the delay in the trial of charges like speeding is virtually non- existent”. [12] [ 52 ] The presiding Justice of the Peace decided however that “a delay of this quantum is, in and of itself, prejudicial”. [ 53 ] I will deal with this further, later in this judgment. REASONS FOR THE DELAY [ 54 ] The drive suspended charge against Mr.

Cercone is a serious charge but there is nothing to suggest that this should be anything other than a straightforward trial which should not take more than one or two hours. [ 55 ] Having said that, I note that there are certain time requirements in any case. These should be viewed as inherent/neutral time. [ 56 ] In this case the presiding Justice of the Peace treated ten months and 20 days as inherent/neutral time. I see no error in this calculation. [ 57 ] She attributed six months and 20 days of delay to Mr. Cercone.

I would have attributed seven months and three days (being the time between June 20, 2012, when his counsel applied for an adjournment of the trial, and the new trial date of January 23, 2013) to him. I attach no significance however to this 13-day difference. [ 58 ] Finally, she attributed responsibility for 17 months and 10 days of delay to the Crown.

I calculated this as 16 months and 27 days but again, I attach no significance to this 13-day difference. [ 59 ] The presiding Justice of the Peace did not err in finding that the Crown prosecutor was responsible for the adjournment of the trial on January 24, 2011. As she stated in her reasons, the prosecutor had addressed the Jenkins issue back on April 26, 2010 and he could have proceeded with an ex parte trial on January 24.

At the very least, he could have made that request to the Justice of the Peace in that court. [ 60 ] If the Crown prosecutor believed that those issues had not been sufficiently addressed on April 26, 2010 he should have taken steps, either that day or later, but certainly prior to January 24, 2011, to ensure that the issues were sufficiently addressed. [ 61 ] For example, when the Justice of the Peace presiding on April 26 declined to issue a bench summons, the prosecutor could have said something further to ensure that the Justice of the Peace fully understood that he, the prosecutor, was intent on seeking a jail sentence if Mr.

Cercone was convicted, and pressed further his request for a bench summons to be issued. [ 62 ] Had that not succeeded, it strikes me that there were still other ways that the prosecutor could have satisfied the concerns raised by the Court of Appeal in Jenkins . For example, I see no reason why Mr. Cercone could not have been informed by letter of the Crown’s intention to seek a jail sentence. That letter could have been served on Mr. Cercone personally or perhaps even by regular or registered mail. [ 63 ] The Crown prosecutor did not do any of these things.

Instead, he asked for a new trial date to be set and that a bench summons be issued. [ 64 ] In the circumstances, I see no error in the presiding Justice of the Peace attributing to the Crown responsibility for the resultant delay.

[ 65 ] There was clearly no error in her criticism of the decision to first adjourn the matter to a “set date court” two months and 12 days away rather than setting a new date for trial immediately. [ 66 ] There was also clearly no error when she attributed to the Crown any delay resulting from the subsequent application for adjournment brought by the Crown. [ 67 ] In that regard, I note that there was no suggestion made to the Justice of the Peace hearing the application for adjournment to consider setting an earlier trial date in light of the time that had already elapsed.

There was no suggestion that the Crown viewed this case as being serious enough or important enough to displace other less serious cases that had already been set down for trial. There was nothing to indicate any awareness on the part of the Crown prosecutor that it was the duty of the Crown to take the steps necessary to bring the case to trial within a reasonable time. [ 68 ] Crown responsibility for the delay only came to an end on June 20, 2012 when counsel for Mr. Cercone applied to adjourn the latest trial date.

STANDARD OF REVIEW ON APPEAL [ 69 ] I am mindful of the fact that as a justice sitting on appeal I am not to decide a case simply on the basis of what I might have done had I heard the argument in the first instance. The Supreme Court of Canada has made it clear that: The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. [13] ANALYSIS [ 70 ] In R. v.

Morin the Supreme Court of Canada stated that “it is appropriate for this Court to suggest a period of institutional delay of between eight and ten months as a guide to Provincial Courts”. [14] [ 71 ] This Supreme Court of Canada guideline is neither a limitation period nor a tariff. It is an instructive device for measuring the constitutional state of the inventory of cases before the Court. Still, it is necessary to examine the particular circumstances of each case. [15] [ 72 ] The Ontario Court of Appeal has made it clear that the analysis of

section 11 (

b) provided in R. v. Morin applies to Provincial Offences Act prosecutions stating: To the extent that guidelines are helpful where s. 11(

b) claims are advanced in prosecutions under

Part I of the POA, the R. v. Morin

summary conviction guidelines should govern. Even those guidelines, however, should not necessarily be strictly applied. [16] [ 73 ] I am mindful that the Court of Appeal has also said that “the absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable”. [17] [ 74 ] Even so, the period of delay properly attributed to the Crown here greatly exceeds that recommended by the Supreme Court of Canada.

I agree with the presiding Justice of the Peace that this delay was far too long. [ 75 ] Although I might have decided the issue differently, I am not satisfied that the presiding Justice of the Peace erred in deciding that the Crown had “failed to demonstrate that the conduct of Mr. Cercone in not appearing for the first four times this matter was before the Court amounted to waiver under

section 11 (

b) or an agreement with the pace of this litigation”. [ 76 ] Similarly, I am not satisfied that the presiding Justice of the Peace erred in deciding that “a delay of this quantum is, in and of itself, prejudicial”. [ 77 ] As I stated earlier, there was never any issue that she misapprehended the applicable legal principles. [ 78 ] I am therefore satisfied that the presiding Justice of the Peace did not err in finding that there had “been unreasonable delay in bringing this matter to trial” and in staying the charges against Mr. Cercone. [ 79 ] The appeal is dismissed. Released: December 9, 2013 Signed: “Justice D.A. Harris” _________________________ Justice D.A. Harris