) ) HER MAJESTY THE QUEEN Respondent – v. –, 2010 ONSC 6802

CITATION : R. v. Bissonnette, 2010 ONSC 6802 COURT FILE NO.: 2008-64 DATE: 2010-12-09 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – Michel Bissonnette Applicant ) ) ) ) ) ) ) ) )) ) ) )) Mr. Riad Tallim, for the Crown Attorney Mr. Donald W. Johnson, Q.C., for the Applicant ) ) HEARD: November 24, 2010 REASONS FOR JUDGMENT charbonneau j. [ 1 ] Michel Bissonnette brings an application asking the court to stay these proceedings on the ground that his Charter right to be tried within a reasonable time has been breached. [ 2 ] Mr. Bissonnette was charged with arson contrary to

section 433 (

a) of the Criminal Code on November 15, 2006. The trial is set to proceed on March 28, 2011. The time span between the laying of the charge and the beginning of trial is thereof 52 months and 12 days. The delay is excessive when we consider the basic timelines set by the Supreme Court of Canada to be between 16 and 18 months. [ 3 ] However, a delay which extends well beyond the guidelines is not per se unreasonable within the meaning of s.11 of the Charter. The court must review all the facts which culminated in the excessive delay in order to determine if the delay is unreasonable so as to warrant a stay.

A stay may only be ordered in very a clear case. The court must balance the accused’s Charter right and the right of the community to have criminal charges dealt with on their merits. In its analysis the court must consider four elements. [ 4 ] First for consideration is the length of the delay itself. The longer the delay the more likely it will be unreasonable within the meaning of

section 11(

b) of the Charter. The seriousness of the charge and the complexity of the prosecution will need to be examined carefully at this point. The more complex and serious the charge, the more time it will reasonably take to bring it to trial. [ 5 ] Secondly, the court must examine whether the accused has waived his

section 11(

b) right in relation to any of the periods of time which make up the delay. [ 6 ] Thirdly, the court must examine what were the reasons for the various periods of delay causing the overall delay. At this stage, the court may attribute responsibility for the delay to conduct of either party, systemic delay or simply as being neutral time necessary in all prosecutions. [ 7 ] Fourthly, the court must consider the prejudiced caused to the accused by the delay. [ 8 ] The case law is clear that each case is unique and the delay in each case must be analyzed on its particular facts.

The analysis must be based on the circumstances as a whole in order to determine if in the particular case the delay is unreasonable within

section 11(

b) of the Charter.

[ 9 ] I have come to the conclusion that the delay to bring this matter to trial is unreasonable, constitutes a clear breach of the accused’s right to be tried within a reasonable time and that the proper remedy is a stay of the proceedings. I have come to this conclusion for the following reasons. Length of Delay [ 10 ] The delay of 52 months and 12 days is clearly excessive in this case. This is not a complex prosecution.

In fact this is a straightforward prosecution where the Crown’s case rests mainly on evidence establishing that the accused had the last opportunity to set the fire and the opinion of an expert that the fire was deliberately set and not accidental.

There was no elaborate disclosure to be made, the investigation took a few months to complete and there is no indication the parties would not have been ready to proceed several months after the first appearance. [ 11 ] Naturally, the Ontario Court of Justice is a busy court and there was a necessary delay to find an available date for a pre-trial conference and then a preliminary inquiry. The pre-trial was held on June 28, 2007 and the preliminary inquiry was held on March 27, 2008. In all, the matter was in the Ontario Court of Justice for approximately 19 months. The guidelines are set at 10 to 12 months.

I conclude that the guidelines were unreasonably exceeded in great part by the inability of the system to provide earlier dates for the pre- trial conference and then the preliminary inquiry. I am aware that other factors also intervened, such as the inability to complete the preliminary inquiry in two days as originally scheduled, but the main factor for the delay remains a systemic one. [ 12 ] The matter first came before the Superior Court of Justice on the 24 th of July 2008. The pre-trial conference was held on September 9 th , 2008. A first trial date was set for September 14, 2009.

The trial did not proceed because no judge was available. A second trial was set for May 31 st , 2010 and resulted in a mistrial because the judge discovered he had a conflict of interest. The matter is now set to proceed on March 28, 2011. [ 13 ] The proceedings will therefore have been in Superior Court for approximately 33 months before the trial begins. The guidelines set by the Supreme Court are 6 to 8 months. The delay is clearly excessive given the nature of the charges and the fact, as indicated, that this is not a complex prosecution.

Waiver of the Accused [ 14 ] I find that the accused expressly waived his s.11(

b) rights for a period of approximately 2.5 months on September 18, 2008, when the second trial date was set. The court offered the date of June 29, 2009 for the trial and an agent for defence counsel indicated he was not available. The court then offered September 14, 2009 and asked the agent whether the accused was waiving his s.11(

b) rights and the agent said, “That’s fine”. [ 15 ] Although, I find that this constituted a waiver of those 2.5 months of delay, it must be remembered that a busy defence counsel need not be available for the very first date offered by the court. Here he accepted a trial date only 2.5 months later. I find this waiver did not play a significant role in the excessive delay which resulted. [ 16 ] There were other times when defence counsel was not available on the first available date. I take note of this.

However, I do not find that defence counsel at any time was not trying to find the earliest possible date or that his conduct was unreasonable. As such, there is no evidence that any waiver by the defence significantly contributed to the excessive delay. The Reasons for the Delay [ 17 ] The reasons for the delay are essentially systemic. The court could only offer a first trial date within 12 months of the first appearance in Superior Court. That first trial did not proceed because no judge was available to hear the case.

Although, the 12 months delay to find the first trial date is not in itself unreasonable in a busy courthouse such as Cornwall, when added to the additional 8.5 months it took to get to the second trial, the combined 20.5 months become clearly unreasonable and the cause for it is systemic delay. [ 18 ] Another fact which supports a finding that the delay was unreasonable is the lack of expediency and diligence with which the Crown proceeded to fix the third trial date. In the circumstances of this case, the Crown should have immediately sought a third trial date on the days following the mistrial.

The mistrial was ordered on May 31, 2010. The matter was then adjourned on a number of occasions at that request of the Crown. The date for the third trial was finally set only on September 9, 2010. Prejudice to the Accused [ 19 ] In the case of a delay of this length, the Supreme Court has indicated that prejudiced to the accused is presumed. Cornwall is a relatively small community. This was a fire at the place of business of the accused’s former employer. Mr. Bissonnette was dismissed by that employer when he was charged in December 2006.

To have to wait 52.5 months to have the chance to clear one’s name in these circumstances is very prejudicial. Whatever the outcome of the trial, the delay to proceed to trial necessarily keeps the attention of the public on the incident and on Mr. Bissonnette for much more time than would be otherwise. Moreover, his legal costs have necessarily substantially increased because of the delay. There is no remedy for that consequence. Mr. Bissonnette had to repeatedly get emotionally ready for trials which did not proceed. This cannot be minimized.

Clearly, he has been prejudiced by the delay. [ 20 ] For all of these reasons, the application is allowed and the charge against Mr. Bissonnette is stayed.

Charbonneau J. Released: December 9, 2010 CITATION : R. v. Bissonnette, 2010 ONSC 6802 COURT FILE NO.: 2008-64 DATE: 2010-12-09 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – MICHEL BISSONNETTE Applicant REASONS FOR JUDGMENT Charbonneau J. Released: December 9, 2010