R. v. Quinney and Qteifan, 2010 ONSC 6605

CITATION : R. v. Quinney and Qteifan, 2010 ONSC 6605 COURT FILE NO.: 0476/08 DATE: 20101207 SUPERIOR COURT OF JUSTICE - ONTARIO RE: R. v. Derrick Quinney and Fatima Qteifan BEFORE: Justice Edward Belobaba COUNSEL: Scott Patterson for the Crown / Respondent Toomas Ounapuu for Mr. Quinney / Applicant Andrew Vaughan for Ms. Qteifan / Applicant HEARD: November 29, 2010 endorsement [ 1 ] Derrick Quinney and Fatima Qteifan bring this application under s. 11(

b) of the Charter of Rights asking that the charges against them be stayed for unreasonable delay. [ 2 ] The accused were charged on August 8, 2007 with robbery, assault with a weapon, use of an imitation firearm and wearing a disguise. The Crown alleges that the two accused tried to rob the victim as he was returning to his car in a public parking lot in downtown Toronto. The victim yelled for help while brandishing a piece of wood that he was carrying. The two accused fled the scene and were later arrested and charged. [ 3 ] Both the Crown and defence were diligent in their efforts to move the matter to trial.

Unfortunately, because of court congestion, the matter did not get to trial for more than three years. Two trial dates were set in Superior Court, one in October, 2009 and the other a year later in October, 2010 but each time the trial did not proceed because no judges were available. The trial was set a third time for November 29, 2010.

The total time period from the date the information was sworn to the estimated end of the trial is 39 months. [ 4 ] The Crown agrees that 31 of the 39 months can be attributed to institutional delay (court congestion) and further agrees that there was “substantial” inferred prejudice. At the conclusion of the hearing on November 29, 2010 I ruled in favour of the two accused. I granted the application and stayed all of the charges. I advised counsel that my reasons would follow. These are my reasons. ***** [ 5 ]

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.” [ 6 ] The primary purpose of s. 11(

b) is the protection of the individual rights of accused, specifically the right to security of the person, the right to liberty, and the right to a fair trial. [1]

Section 11(

b) also seeks to protect two societal rights. It protects the public's interest in having the laws enforced by having those who break the law tried quickly because promptly held trials increase public confidence and it seeks to protect the public's interest in having those accused of crime dealt with fairly. [2] [ 7 ] The determination of whether the s. 11(

b) right has been denied involves a judicial balancing of the interests which the

section is designed to protect against factors which caused the delay. The relevant time period is from the date of the charge to the end of the trial.

The key question to be answered is: at what point does the delay become unreasonable? [3] [ 8 ] The factors to be considered in analyzing how long a delay is too long are: (1) the length of the delay; (2) any waiver of time periods; (3) the reasons for the delay, including the inherent time requirements of the case, the actions of the accused, the actions of the Crown and the limits on institutional resources and (4) prejudice to the accused. [4] [ 9 ] The Supreme Court has suggested “8 to 10 months” of institutional delay [5] as a guideline of what will be constitutionally tolerable in provincial courts and “6 to 8 months” of institutional delay as a guideline in superior courts. [6] Thus, in cases that begin in the former and proceed post-committal to trial in the latter, the suggested guideline before delay becomes constitutionally unacceptable is “14 to 18 months.” [ 10 ] Subsequent case law has made clear that s. 11 (

b) does not prescribe a constitutionally mandated timetable. The suggested guidelines are not limitation periods. [7] Instead, the judicial balancing process requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable having regard to the interests that s. 11 (

b) seeks to protect, the explanation for the delay and the prejudice to the accused. [8] [ 11 ] In cases with lengthy delays, prejudice can be inferred from the mere passage of time. The longer the delay, the more likely that the inference will be drawn. [9] [ 12 ] In R. v. Godin , [10] the Supreme Court Court concluded that it was reasonable “to infer…some prejudice” in a case where “the delay exceeded the ordinary guidelines by a year or more”. The overall delay in that case was thirty months and the Court stressed that it

was “virtually entirely attributable to the Crown or institutional delay and was largely unexplained”. The Court upheld the trial judge’sdecision to stay the charges. [13] In R. v. Brace, [11] the Court of Appeal inferred prejudice in another case where the overall delay was thirty months. Ofparticular concern was a period of twenty five and a half months delay in the Superior Court where the case failed to proceed on threeseparate trial dates and the s.11(

b) application was then brought on the fourth trial date. [14] Here the overall delay was thirty-nine months. Crown counsel has agreed that thirty-one months were attributable toinstitutional delay. The case was ready to go but no trial judges were available. Crown counsel also agreed that there was “substantial”inferred prejudice. The two accused had to prepare themselves for three trial dates over the thirty-one month period. According to theCrown, the charges herein were relatively straightforward and should have been dealt within fourteen months, that is, within the lowerrange of the suggested guidelines.

Instead it has taken more than twice that time to finally get the matter to trial. [15] The delay that incurred in this case is not uncommon and appears to be getting worse, especially in Toronto. As Justice Codenoted in Richards: [12] It is well known to the judiciary in Toronto that congestion on the trial lists and systemic delays have been building over thelast two years. In 2009, trial dates for regular trials (i.e. those not on the long-trial list) were generally being set eight to ten months afterthe judicial pre-trial, depending on whether the accused was in or out of custody.

This was a deterioration by about two months fromthe situation that existed in 2008. In 2010, the range of available trial dates increased again, to nine to eleven months from the date ofthe judicial pre-trial. In addition, cases set for trial are increasingly not being reached and are being put over to a second trial date. Themain causes of the deteriorating situation are said to be the lengthening of trials generally and the increase in very large “project” caseswith multiple accused and numerous pre-trial applications. [16] The wheels of justice turn slowly in Toronto.

Because of limited judicial resources people charged with criminal offences inthis city can wait three or four years or more before their case is heard. [17] Nonetheless, as Crown counsel readily acknowledged, one’s rights under the Charter do not depend on where you live orwhere you are arrested. The rights and freedoms accorded to Canadians apply equally whether you live in a small rural village or a largeurban centre.

The explanation that in Toronto the courts are congested and there are not enough judges is not a justification; nor is it anexplanation that is constitutionally acceptable. [18] I therefore have no difficulty concluding that in this case the thirty-one months of institutional delay was a violation of s.11(

b) of the Charter. The charges against Mr. Quinney and Ms. Qteifan are stayed. [19] My thanks to counsel, particularly Crown counsel, for the candid and principled submissions. Belobaba J. Date: December 7, 2010 [2] R. v. Qureshi, (ON CA), [2004] O.J. No. 4711 (C.A.) at para. 9; R. v. MacDougall, (SCC),[1998] 3 S.C.R. 45 at 496. [5] Systemic or institutional delay is “the period that starts to run when the parties are ready for trial but the system cannot accommodatethem”: R. v. Morin, supra note 1 at 18 and 26-7. [12] R. v. Richards, 2010 ONSC 6202 (S.C.J.) at para 71.