R. v. Charles, 2013 ONSC 216

CITATION: R. v. Charles , 2013 ONSC 216 COURT FILE NO.: 1-611141 DATE: 20130109 SUPERIOR COURT OF JUSTICE – ONTARIO RE: HER MAJESTY THE QUEEN - and - TRISTAN CHARLES BEFORE: G.R. Strathy J. COUNSEL: Anna M. Martin , for Tristan Charles, Applicant Christine Josic , for the Crown, Respondent DATE HEARD: December 19, 2012 E N D O R S E M E N T [ 1 ] Tristan Charles stands charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. He applies to stay the proceedings, asserting infringement of his right under s. 11(

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. [ 2 ] For the reasons that follow, the application is dismissed. I. Introduction [ 3 ] Mr. Charles was arrested, along with Rajief Williams and a minor, on December 30, 2009, at an apartment located at 4110 Lawrence Avenue East in Toronto. The police had obtained information that drug dealers had taken over the apartment to traffic in cocaine. The tenant gave access to the police, who found the three men near a table on which there were 18.84 grams of crack cocaine. A digital scale was in plain view.

Each of the accused was found in possession of two cell phones and Canadian currency. [ 4 ] The preliminary hearing was originally scheduled for both Mr. Charles and Mr. Williams on June 23, 2011, but was adjourned to September 28, 2011. On that date, Mr. Charles conceded committal and a bench warrant was issued for Mr. Williams. [ 5 ] In the Superior Court, a trial was scheduled for October 1, 2012, but it did not proceed, for reasons discussed below. It was put

over to December 17, 2012. I heard the s. 11 (

b) application on December 19, 2012 and reserved to this date. [ 6 ] I will begin with a chronology of the proceedings. I will then set out the governing legal principles on applications under s. 11(

b) of the Charter and will apply those principles to the facts of this case. II. Chronology [ 7 ] The history of this proceeding is as follows: Dec. 30, 2009 Mr. Charles was arrested, along with Mr. Williams and a minor, and charged with possession of cocaine for the purposes of trafficking and possession of the proceeds of crime ($468.75). Dec. 31, 2009 A bail hearing was held. Mr. Charles was released on surety bail with two named sureties. A first appearance date was scheduled for February 3, 2009. Feb. 3, 2010 The first appearance after show cause.

The Crown brief was not in court and disclosure was not available. Counsel for Mr. Charles appeared, although she was not yet retained. Mr. Williams did not have counsel. The matter was put over for four weeks to March 3, 2010. Mar. 3, 2010 The Crown brief was not in court and disclosure was not available. Counsel for Mr. Charles appeared and stated that she was looking for disclosure. Mr. Williams was said to be in the process of retaining counsel. The matter was put over to March 26, 2010 for disclosure. Mar. 26, 2010 Counsel for Mr. Charles appeared. Mr. Williams did not appear.

Disclosure was still not available. The Crown stated that some further disclosure had come in and was being vetted. The Crown stated, “It is starting to get dated, so I will look into this matter and advise the Crown assigned to do the vetting of the next return date.” The matter was adjourned to April 13, 2010. Apr. 13, 2010 Counsel for Mr. Charles appeared. Mr. Williams was not present. The Crown brief was not in court and no disclosure was available. The Crown stated, “It looks like the situation is kind of elastic.

There’s no brief in court but there is probably disclosure that needs to be vetted.” A letter from Mr. Wildman, counsel being consulted by Mr. Williams, requested that the matter be adjourned to May 11, 2010. The Crown suggested that, considering the offence dates, the matter should come back in one to two weeks and said that she would inform the Crown who was responsible for vetting the file. The matter was adjourned to April 22, 2010. Apr. 22, 2010 Mr. Charles appeared without counsel. Disclosure was provided to both accused.

The Crown suggested an adjournment to May 7, 2010, but the matter was adjourned to May 11, 2010, as Mr. Williams was returning on that date. Mr. Charles was told that his counsel should have a Crown pre-trial in the interim. May 11, 2010 Counsel for Mr. Charles sent a note advising that she had scheduled a Crown pre-trial for May 18, 2010. Counsel, who was not yet retained, appeared on behalf of Mr. Williams and requested an adjournment for a Crown pre-trial. The matter was adjourned to May 25, 2010, so that Crown pre-trials could be completed. May 25, 2010 A Crown pre-trial had been held for Mr. Charles.

Counsel for Mr. Charles sent a note advising that she wished to set a judicial pre-trial and because Mr. Williams did not yet have counsel, she suggested an open court pre-trial. She provided dates for a pre-trial in May and June and stated that if the co-accused had counsel she was ready to set preliminary hearing dates. She provided dates in September through December 2010. Duty counsel advised that Mr. Williams stated that he had retained Mr. Wildman and that he needed two weeks to meet with his lawyer to review the disclosure.

Crown advised that judicial pre-trial dates could not be set until both accused had had Crown pre-trials. Mr. Williams was asked to return in two weeks with a letter of retainer. The matter was adjourned to June 7, 2010. June 7, 2010 Counsel for Mr. Charles appeared and was seeking to set a judicial pre-trial. Counsel for Mr. Williams was not present and there was no letter or note from him. Counsel for Mr. Charles suggested that the matter be put over for two weeks to June 21, but that week was not available due to G20 disruption.

The matter was adjourned to July 8, 2010, with a view to setting a date for a judicial pre-trial.

July 8, 2010 Counsel for Mr. Charles was unable to attend. She sent a letter requesting a date for a judicial pre-trial and proposed dates commencing July 20 through October 2010. Mr. Charles had had disclosure for 2½ months, had had a Crown pre-trial and had been asking for judicial pre-trial. The Crown suggested that because the estimate for the preliminary hearing was six hours, it did not require a judicial pre-trial conference. Mr. Williams stated that he was expecting a letter from his lawyer, but there was no letter. Mr. Williams was sent to practice court for case management that afternoon.

The information indicates that he was remanded to August 4, 2010, peremptory on him, to retain counsel. Mr. Charles was adjourned to August 5, 2010. Aug. 4, 2010 Based on the information, Mr. Williams appeared before Caldwell J. on August 4, and was remanded to August 9, 2010, to provide proof of retainer or a letter from counsel. Aug. 5, 2010 Counsel for Mr. Charles appeared and filed a statement of issues and witnesses. Mr. Williams was apparently supposed to attend August 9, 2010 to provide proof that he had retained counsel. The matter was adjourned to September 8, 2010.

Aug. 9, 2010 No transcript or other information as to Mr. Williams’ attendance is available. Sept. 8, 2010 Counsel for Mr. Charles appeared. She stated that she had been ready to set a date for a preliminary hearing for a long time. Mr. Williams had still not retained counsel for trial. A letter from Mr. Wildman, counsel for Mr. Williams, indicated that he had not been retained for trial and that he had tried to have a Crown pre-trial by phone and in person, but the Crown was not available.

The matter was adjourned to Sept. 30, 2010 for an open- court judicial pre-trial and to set a date for a preliminary hearing. Sept. 30, 2010 Counsel for Mr. Charles was not able to attend, although Mr. Charles had expected that she would attend. Mr. Williams had still not retained counsel. Duty counsel indicated that Mr. Wildman was requesting “one final adjournment in anticipation of a full retainer on the next date.” The Crown acknowledged that the matter was “really dated”. The matter was adjourned to October 8, 2010 and Mr. Williams was advised that the matter should be set down with or without counsel.

The Crown noted that it had been made peremptory on Mr. Williams to set a date on August 4, 2010, when he had appeared himself. The presiding judge asked the Crown to note that Mr. Williams advised that he would be paid the following week and that he would get the money to his lawyer by the next court date. Oct. 8, 2010 Counsel for Mr. Charles had sent a letter indicating that she had been waiting for Mr. Williams to retain counsel, that she had had a Crown pre-trial and had filed a statement of issues, and that she was ready to set a date for a preliminary hearing.

She provided available dates for a preliminary hearing from October 2010 through May 2011. The letter was read out in court, but the presiding judge misunderstood and thought it had been written on behalf of Mr. Williams, not Mr. Charles. Mr. Charles was clearly confused as well, because he was not aware that the letter in question was from his counsel. The Crown indicated that it was willing to set a preliminary hearing date and that no judicial pre-trial was required. The matter was adjourned to October 22, 2010. Oct. 22, 2010 Both accused appeared with letters from their counsel to duty counsel.

Counsel for Mr. Charles stated, “Please set a preliminary inquiry date. We have been waiting for months for Mr. Williams to retain Mr. Wildman. The statement of the issues was filed some time ago.” She then provided available dates from mid-November 2010 through to May 2011. Counsel for Mr. Williams was still not retained but had conducted a Crown pre-trial. Counsel for Mr. Williams indicated in a letter that he was prepared to set a date for a preliminary hearing on a “with or without counsel” basis. Duty counsel indicated that counsel for Mr.

Williams had provided the date of February 15, 2011 for a preliminary hearing and that this date coincided with a date provided by counsel for Mr. Charles, but the Court indicated that the date was not available and that dates for a preliminary hearing were not available until the second week in June. The matter was put over to November 10, 2010 for counsel to appear and coordinate dates of availability. In fact, it appears that the letter from counsel for Mr. Williams had indicated other dates, but these were overlooked. Nov. 10, 2010 The matters appeared in practice court and were sent to 114 Court.

The Justice of the Peace indicated that Judge Sparrow had ordered that a date be set as a target date and an interim date had been set for December 1, in 117 court. Counsel for Mr. Charles sent a letter apologizing for being unable to attend. She indicated that Mr. Charles had been held up for many months by Mr. Williams and that she had been ready to set a preliminary hearing date for some months. She submitted that Mr. Williams had still not retained counsel and that “he should be forced to set a date, or the Crown should sever, as this delay is prejudicing Mr. Charles’ fair trial rights at this point.

This situation is unacceptable.” She then set out available dates for a preliminary hearing from November 2010 through June 2011. Duty counsel indicated that the letter from counsel for Mr. Williams stated that he was “pretty much free” after February 15, 2011. June 23, 2011 was set for the preliminary hearing, with a confirmation date set for December 1, 2010, to confirm the availability of counsel for Mr. Williams.

Dec. 1, 2010 Both Mr. Charles and Mr. Williams were required to attend. The preliminary hearing target date was confirmed, on a “with or without counsel” basis for Mr. Williams. June 23, 2011 The date scheduled for the preliminary hearing. Counsel for Mr. Charles appeared with Mr. Charles. Mr. Williams was present, but was without counsel as counsel was not fully retained. The Crown indicated that the matter was set to proceed with or without counsel. The Crown said that it was ready to proceed. The Court indicated that another matter was also scheduled for a six hour preliminary hearing on that day.

Counsel for Mr. Charles indicated that she had been ready to go for a long time and was interested in proceeding. The Court noted that the matter was “fairly old”, but was concerned about the list and the fact that Mr. Williams did not have counsel. The Court indicated that there was a scheduling issue. Counsel for Mr. Charles said that s. 11 (

b) was an issue and suggested that severance was a possible remedy. The Crown said it would consider that. The trial coordinator advised that another judge could be available, but there was apparently no other Federal Crown available. The Crown advised that he had considered severance and did not think it would make sense to do so. The Court indicated that in view of the fact that there was another matter proceeding, this matter would not be completed, even if commenced, so the matter was adjourned. The charge of simple possession against Mr. Charles was withdrawn.

The Crown and defence agreed to a consent committal on the other charges and the calling of certain witnesses in respect of the applicant. The matter was adjourned to July 18, 2010 to set a date for a preliminary inquiry. July 18, 2011 Counsel for Mr. Charles met with the Crown before court and obtained a new preliminary hearing date of September 28, 2011 from the trial coordinator’s office. Earlier dates of August 5 and 12 were offered, but were not available to the Crown. Other August dates were not available for either the Crown or defence. Counsel for Mr. Charles was unable to attend court and Mr.

Williams was unrepresented and did not have dates from his counsel. The presiding judge required both accused to re-attend on July 25, 2010 to confirm availability of counsel for Mr. Williams on September 28, 2011. Mr. Charles asked to be excused from attending on July 25, but the request was refused. July 25, 2011 Counsel for Mr. Williams provided a letter indicating that he was not retained, but if retained would be available September 28, 2011. Counsel for Mr. Charles sent a letter to duty counsel indicating that the matter was nearly 20 months old and that Mr.

Charles had counsel and had been prepared to proceed from the outset. The letter noted that the Crown had refused to sever and asserted that Mr. Charles’ fair trial rights were being prejudiced by the delays. The preliminary hearing was set for September 28, 2011, with or without counsel. Sept. 28, 2011 Preliminary hearing. Mr. Williams failed to appear and a bench warrant was issued. The preliminary hearing commenced after lunch and concluded at the end of the day. Mr. Charles was committed to trial. An assignment court date was set for October 26, 2011. Oct. 26, 2011 First appearance in the Superior Court.

A judicial pre-trial was scheduled for December 14, 2011. Counsel for Mr. Charles had been requesting earlier dates, but federal pre-trials were only available on Wednesdays and there was congestion in the system, because pre-trials in the previous week had to be cancelled and re-scheduled. The December 14, 2011 date was the earliest available. Dec. 14, 2011 A judicial pre-trial was held. The trial was set for five days commencing October 1, 2012, the first date available for the Crown. Counsel for Mr. Charles indicated that she had dates that could accommodate a five day trial commencing January 16, 2012.

It was noted that delay was an issue and that a s. 11 (

b) application might be brought in advance. The matter was put over to February 6, 2012 to be spoken to. Feb. 6, 2012 The defence was waiting to see whether a s. 11 (

b) application would be funded by Legal Aid. The matter was adjourned to March 6, 2012 to be spoken to. Mar. 6, 2012 Mr. Charles was not present. He “just wasn’t able to get a ride and lives in the far reaches of Scarborough”. Counsel advised that she was still waiting to hear from Legal Aid about funding a s. 11 (

b) application, because if it was funded, the application could be booked prior to the scheduled trial date. The matter was adjourned to March 30, 2012. Mar. 30, 2012 Counsel advised the Court that the trial coordinator had suggested that the s. 11 (

b) application be brought at the trial rather than in advance. The Crown was still unsure whether Mr. Williams would be joined with Mr. Charles for the purpose of the trial. The matter was adjourned to April 27, 2012.

Apr. 27, 2012 The matter was put over to September 4, 2012 to confirm the trial date. Sept. 4, 2012 The Crown had now been assigned. Mr. Williams had been re-arrested and his preliminary inquiry had beenscheduled. Counsel for the defence and counsel for the Crown were to have discussions. The matter was adjourned to a readiness date ofSeptember 10, 2012. Sept. 10, 2012 The trial date was confirmed – no defence application was anticipated. Oct. 1, 2012 The matter came on for trial in the Superior Court.

There were discussions with the presiding judge about varioustrial management issues, including the anticipated length of trial, the Crown’s opening, evidentiary issues, a Parks challenge and juryselection. The presiding judge was available October 1-5, but not the following week, should the matter go over, which appeared to be apossibility. There was a discussion of the possibility of completing the evidence on October 1-5 and addressing the jury on October 15-16. Ultimately, a jury panel was not available that day and the matter was adjourned to October 3, 2012, to determine whether a panelwould be available.

Oct. 3, 2012 A jury panel was available. The presiding judge advised counsel that it would not be possible to continue the trialin the week of October 15, 2012, as originally contemplated, as there were “in custody” matters, both provincial and federal, that hadpriority that week. After an adjournment to discuss the matter, Counsel for Mr. Charles advised that her client chose to proceed by juryand not by judge alone, as proposed by the Court and the Crown. A new trial date was set for December 17, 2012, which was the earliestavailable date. Defence counsel noted that time would be tight, given the holidays.

Nov. 9, 2012 The matter was spoken to with respect to a s. 11(

b) application. It was acknowledged that there was a narrowwindow and the presiding judge and trial coordinator indicated that the application would most likely be heard on the trial date. Dec. 17, 2012 Defence counsel was unable to obtain a hearing date for the s. 11(

b) application prior to trial. The Crown opposedthe application being heard and, if it was heard, requested an adjournment to prepare materials. The matter was adjourned to December19, 2012 for hearing. Dec. 19, 2012 The

section 11(

b) application was heard. Decision reserved to January 9, 2013. III. Applicable Principles [8]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time.It protects the rights of accused persons and also the interest of society in the fair and expeditious resolution of criminal proceedings. [9] In R. v. Morin, (SCC), [1992] 1 S.C.R. 771 at paras. 26-28, Sopinka J. observed that the primary purpose of s.11(

b) of the Charter is to protect three rights of the accused: (

a) the right to security of the person, which is protected by seeking tominimize the anxiety, concern and stigma of exposure to criminal proceedings; (

b) the right to liberty, which is protected by seeking tominimize exposure to restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and (

c) the right to afair trial, which is protected by attempting to ensure that proceedings take place while evidence is available and fresh. See also R. v.Askov, (SCC), [1990] 2 S.C.R. 1199 at paras. 23-25, 43-69. [10] The secondary purpose of s. 11(

b) is to protect the interests of society. As Sopinka J. noted in R. v. Morin, society has an interestin ensuring that persons accused of a crime are treated humanely and fairly. It has been said many times, however, that society also hasan interest in ensuring that persons accused of crimes—particularly serious crimes—are brought to trial to be dealt with according to law:see R. v. Morin, above, at paras. 29-30; R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659. [11] The onus of proof is on the accused to establish on a balance of probabilities that his or her right to be tried within a reasonabletime has been violated. [12] The determination of whether delay is unreasonable in any particular case is not simply a function of the amount of time that haspassed between the laying of the charges and the trial. In determining whether the period of delay is unreasonable and gives rise to abreach of the Charter, the Court must consider: (

a) the length of the delay;

(

b) whether there has been any waiver of the time periods by the accused; (

c) the reasons for the delay, including: i. the inherent time requirements of the case; ii. the actions of the accused; iii. the actions of the Crown; iv. limits on institutional resources; and v. any other reasons for the delay; and (

d) prejudice to the accused from the delay. See R. v. Morin , above, at para. 31 . [ 13 ] After this inquiry takes place, the final stage of the analysis requires a balancing of the various individual and societal interests that s. 11 (

b) is intended to protect, in the context of all the circumstances, including those that led to the delay in the case. No one factor is determinative: see R. v. Giorgio , [2004] O.J. No. 3807, [2004] O.T.C. 818 (Sup. Ct.) at para. 43 . [ 14 ] The Supreme Court of Canada indicated in R. v. Morin , above, at paras. 54-55 that a reasonable period of institutional delay in the provincial court is eight to ten months, and in the superior court is six to eight months. [ 15 ] I now turn to the application of these principles to the facts of this case. IV. Analysis (

a) Length of the Delay [ 16 ] The first factor is the length of delay. As Code J. observed in R. v. Lahiry , 2011 ONSC 6780 , [2011] O.J. No. 5071 at para. 5 , this threshold determination is simply a mechanism for weeding out frivolous applications: “It is only necessary to go on and consider the other three factors if the overall period of delay ‘is of sufficient length to raise an issue as to its reasonableness’.” See also R. v. Askov , above, at para. 69 ; R. v. Morin , above, at para. 36 . [ 17 ] In this case, Mr. Charles was arrested on December 30, 2009.

He appeared for trial before me on December 17, 2012, some 35½ months later. The total delay is sufficient to justify further inquiry. (

b) Waiver by the Accused [ 18 ] There is no allegation that Mr. Charles waived his s. 11 (

b) rights with respect to any period of delay. On the contrary, he retained counsel at an early date and his counsel discharged her obligations with commendable diligence, provided firm and realistic dates for further steps, and took every opportunity to urge the Crown and the Court to move the matter forward or to sever the charges. (

c) The Causes of the Delay [ 19 ] The application of this factor requires an objective analysis of the five periods of delay noted above, in order to determine the cause of each. As Code J. observed in R. v. Richards , 2010 ONSC 6202 , [2010] O.J. No. 4958 at para. 15 : This is one of the more difficult factors to apply because it often becomes confused with imputations of fault. It simply involves an objective analysis of each period of delay in order to determine its cause.…Having determined the cause of the individual period of delay, this factor then assigns a weight to it.

There are some delays that are said to “weigh against the Crown”, some delays are said to “weigh against the defence” and some delays are said to be “neutral”. The simple point that this factor seeks to make is that delays caused by the accused’s own actions “will justify” an otherwise unreasonable delay, delays caused by the Crown or by inadequate resources “cannot be relied upon ... to explain away delay that is otherwise unreasonable”, and delay due to the inherent requirements of the case “is neutral and does not count against the Crown or the accused”.

See: Askov , supra at pp. 477-481 and 483; Morin , supra at pp.

16-23; R. v. MacDougall (1998), (SCC), 128 C.C.C. (3d) 483 at p. 500 (S.C.C.). [20] This factor is also difficult to apply because the causes of a particular period of delay frequently overlap. Moreover, there is no“one size fits all” for the inherent requirements of the case. [21] In this particular case, the principal causes of the delay were the delays of the co-accused, Mr. Williams, in the Ontario Court ofJustice and limitations on institutional resources in both the Ontario Court of Justice and the Superior Court. (

i) Inherent Time Requirements [22] There are inherent time requirements of every case. They include what have been termed the “neutral intake periods” to arrangebail, retain counsel, prepare disclosure, review disclosure, engage in follow-up requests, and prepare for and attend pre-trial conferences.These time requirements are not fixed and they vary according to the complexity of the case and the particular circumstances: see R. v.Richards, above, at para. 18.

These can include the number of accused, the amount of disclosure required and the number of witnesses.The factual circumstances of this case were not particularly complicated. There were five police officers involved in the arrest, but onecan anticipate that their evidence would be similar. The Crown contemplated calling one expert witness. [23] In this case, the applicant concedes that the period of December 30, 2009 to February 3, 2010 should be characterized as neutralintake.

In my view, in the circumstances of this case, involving two accused and a fairly substantial quantity of cocaine, a period of about90 days would have been reasonable for the completion of Crown disclosure.

That would extend the neutral intake period to March 30,2010 (to total 91 days). [24] The applicant also acknowledges that the period April 23 to May 11, 2010 (19 days) was required for the purposes of arranging ajudicial pre-trial conference and should be regarded as part of the inherent requirements of the case. [25] I would also view the period of November 11, 2010 to February 15, 2011 (97 days) as part of the inherent requirements of thecase, as February 15, 2011 was the first date available for counsel for Mr. Williams to conduct the preliminary hearing.

That periodshould be regarded as part of the normal time required for counsel to clear their calendars: see R. v. Lahiry, above, at para. 26. [26] The period of September 29 to December 14, 2011 (77 days) should be regarded as part of the neutral intake period in theSuperior Court. The period of December 15, 2011 to January 17, 2012 (34 days) should be regarded as a reasonable time for counsel toclear their calendars and to prepare. January 17, 2012 was, in any event, the first available date for counsel for Mr.

Charles. (ii) Actions of the Applicant [27] The applicant concedes that the period of September 30 to October 8, 2010 (9 days) is attributable to defence delay. [28] While I find that no other time should be allocated to defence delay, I should note that one of the problems of scheduling in theOntario Court of Justice was that both defence counsel were never in court, with their calendars, at the same time.

Some of the confusionand difficulties were attributable to the inability to tie down dates that were available to the Court, the Crown and both defence counsel. (iii) Actions of the Crown [29] In my view, the period of March 31 to April 22, 2010 (23 days) should be allocated to Crown delay in making disclosure. Theperiod of April 13 to 22, 2010 is conceded by the Crown. [30] Counsel for Mr. Charles submits that the period from September 8 to 30, 2010 should be allocated to the Crown, because theCrown was not available for a pre-trial with counsel for Mr. Williams. However, counsel for Mr.

Williams had not been retained for trialand was not in a position to set a date for a preliminary hearing in any event. (iv) Limits on Institutional Resources [31] I find the following periods of delay attributable to limitations on institutional resources: (

a) The period from February 16, 2011 (the first date available to counsel for Mr. Williams) to June 23, 2011 (the originally-scheduleddate for the preliminary hearing) (128 days); (

b) January 18, 2012 (the first date available to the defence) to October 1, 2012 (the first date available to the Crown) for the initial trialdate in the Superior Court of Justice (258 days); (

c) October 2, 2012 (the originally-scheduled trial date in the Superior Court of Justice) to December 17, 2012 (the ultimate trial date)(77 days). [32] Although I count the delay from October 2 to December 17, 2012 against the Crown, I note that it was only a delay of about twoand one half months after the originally-scheduled trial date. Both counsel and the Court were fully aware of the history of the matter and

a sense of urgency was manifested in obtaining the first available trial date. Crown counsel went to the extent of cancelling a previously-scheduled leave in order to accommodate the new date. (

v) Other Causes: Delay of Co-Accused and Trial Together [33] A very substantial cause of the delay in the Ontario Court of Justice resulted from the efforts of Mr. Williams to retain andinstruct counsel and the attempts of that Court to accommodate this important interest. [34] There were considerable delays in the period of May through November 2010 in scheduling a date for the preliminary hearing onJune 23, 2011, due to the failure of Mr. Williams to formally retain counsel.

In fact, he had not even retained counsel by the time of thepreliminary hearing, some 18 months after the charges were laid. [35] It was not suggested, however, that Mr. Williams intentionally delayed the proceedings. The evidence establishes that he wasengaged in good faith, albeit slow-paced, efforts to retain counsel. [36] As a general rule, delay caused by the actions of a co-accused – including delay arising from the attempt of a co-accused tolocate and retain counsel – is considered neutral and is not factored into the assessment of reasonable time: see R. v. Whylie, (ON CA), [2006] O.J.

No. 1127, 208 O.A.C. 247 (C.A.) at para. 24; R. v. Sapara, 2001 ABCA 59, [2001] A.J. No. 256 at para. 61,leave to appeal refused, [2001] S.C.C.A. No. 237; R. v. Tomlinson, [2008] O.J. No. 3524, 78 W.C.B. (2d) 719 (Sup. Ct.) at para. 41. Theapplicant acknowledges that “much of the delay in provincial court were [sic] caused by the failure of Mr. Williams to retain counsel in atimely fashion, and by the Court’s accommodation of his requests for additional time to retain counsel, and ultimately his adjournmentapplication.” [37] In R. v. L.G., 2007 ONCA 654, [2007] O.J.

No. 3611 at para. 63, the Court of Appeal observed that the reason for this rule is thatit is in the interest of justice that individuals who are jointly charged with an offence be tried together. Severance will rarely be granted.The Court concluded that, “[g]iven these principles, delay caused by the actions of a co-accused ordinarily will not be attributable to theCrown or to the absence of institutional resources.” [38] There are strong policy reasons why persons jointly charged with an offence should be tried together. They were expressed bythe Court of Appeal in R. v.

Sarrazin (2005), (ON CA), 75 O.R. (3d) 485, [2005] O.J. No. 1404 (C.A.) at para. 59: [U]nless it can be shown that a joint trial would result in an injustice to an accused, it is generally in the interests of justice that [co-accuseds] be tried jointly.

There are strong policy reasons for this principle: joint trials enhance the truth-finding exercise and precludethe possibility of inconsistent verdicts; they spare all those concerned, and ultimately the community, the expense (financial andemotional), inconvenience to witnesses, and institutional stress associated with multiple trials of the same issues. [39] The question in any particular case is whether a point has been reached when delays as a result of the actions of a co-accusedstart to count against the Crown, whether as institutional delays or Crown delays.

For example, this point may be reached if the Crownshould have severed the charges but did not. I discussed these issues in R. v. Barnes, 2012 ONSC 7192, [2012] O.J. No. 6012 at para. 70: In conducting the balancing process, it is appropriate to consider the public interest, and the accuseds’ interest, in a single trial whereboth accused are jointly charged with an offence.

As the Court of Appeal observed in Savoury, at para. 22, there is a presumption that“co-accused who are jointly charged and are said to have acted in concert, should be tried together.” Giving effect to this principle,which in this case was clearly in the interests of both the Crown and the defence, can result in some delay, as this case demonstrates. Theneeds of one party or his lawyer may slow down the progress of the proceeding, thereby affecting the other party.

It is a case of oneimportant principle (the trial of co-accused together) impacting another important principle (the right to trial within a reasonable time). Iaccept that there may be some cases in which the Crown must consider whether to sever the charges to give appropriate consideration toone accused’s fair trial rights in priority to the interests of the co-accused: see R. v. Topol, [2007] O.J. No. 3094, (S.C.J.) at para. 54,aff’d. 2008 ONCA 113, [2008] O.J. No. 535.

In my view, the exigencies of this case did not require that such a decision be made. [40] In order to assess the issue in this particular case, it is necessary to look at what was done by both the Crown and the Court toaddress the issue and to balance the rights of Mr. Charles, who was pressing for a prompt preliminary hearing, and the rights of Mr.Williams, who wanted to retain counsel. The balancing of those interests necessarily involves a consideration of the public interest in thejoint trial of the co-accused. [41] There were two periods of delay caused by Mr.

Williams: May 12 to November 10, 2010 and June 23 to September 28, 2011. [42] Concerning the first period, there was significant delay in the Ontario Court of Justice due to the failure of Mr. Williams to retaincounsel, efforts by the Court to accommodate his right to counsel, and his ultimate request for an adjournment of the date initially set forthe preliminary hearing. Counsel for Mr. Charles notes that she was ready to set a date for a preliminary hearing at the attendance onMay 25, 2010, suggesting dates in September through December 2010. Mr.

Williams was not able to set a date until the appearance onNovember 10, 2010. [43] In my view, counsel for Mr. Charles substantially understates the extent to which delays are attributable to Mr. Williams andoverstates the extent to which they are attributable to institutional factors. The only delays she attributes to the co-accused are the periodsof October 8 to 22, 2010 and May 25 to September 8, 2012. Considering that Mr. Williams had not retained counsel by the time of theoriginally-scheduled preliminary hearing on June 23, 2011, Mr.

Charles places insufficient weight on this factor and too much weight oninstitutional or Crown delay.

[ 44 ] Reading the transcripts of the proceedings before the judges of the Ontario Court of Justice who dealt with the matter, it is apparent that both the Crown and the Court were alive to the delay that had been occasioned by Mr. Williams’ inability to retain counsel, its impact on Mr. Charles’ s. 11 (

b) rights, and the need to balance those rights with the societal interest in having both accused tried together. Specific efforts were made to case-manage and monitor the progress of Mr. Williams’ matter to ensure it moved forward as expeditiously as possible. [ 45 ] In my view, due consideration was given to the need to be fair to both accused.

I am not satisfied that the point was reached when the charges should have been severed and the delay would start to run against the Crown. [ 46 ] I would therefore allocate the period May 12, 2010 to November 10, 2010 (183 days) to delay by the co-accused. [ 47 ] The second delay in this category occurred from June 24, 2011 (the day after the originally-scheduled date for the preliminary hearing) to September 28, 2011 (when the preliminary hearing actually proceeded) (97 days). The fact is that Mr. Williams was not ready to proceed on June 23, 2011 as he did not have counsel.

Nor was the Crown prepared to sever the charges against the co-accused. The applicant submits that the delay from June 23 to July 18, 2011 should count against the Crown, because she submits that the Crown should have addressed the prejudice to Mr. Charles by agreeing to sever the charges. I do not agree. No specific prejudice was identified at the time, other than general observations that it was in Mr. Charles’ interest to proceed as expeditiously as possible and that his fair trial interests were being impaired with the passage of time.

The point had not been reached, in my view, where the Crown had an obligation to put Mr. Charles’ interests in a trial within a reasonable time ahead of the public interest in the joint trial of Mr. Charles and Mr. Williams. [ 48 ] On July 25, 2011, counsel for Mr. Williams did not appear, but sent a letter indicating that he had not yet been retained, but that, if retained, he would be available for a preliminary hearing on September 28, 2011. While the delay following June 23, 2011 may have been in part due to unavailability of resources, the fact is that Mr.

Williams was not ready to proceed on June 23, 2011 in any event. In my view, it is reasonable to attribute this delay of just over three months to Mr. Williams.

Summary of the Causes of Delay [ 49 ] My conclusions on the characterization of the various periods between Mr.

Charles’ arrest and the ultimately scheduled trial date are set out in the following table: Time Period Characterization Total Days Ontario Court of Justice December 30, 2009 – March 30, 2010 Inherent – Intake 91 March 31, 2010 – April 22, 2010 Crown 23 April 23, 2010 – May 11, 2010 Inherent – Pre-trials 19 May 12, 2010 – November 10, 2010 Other – Delay by co-accused [Includes September 30, 2010 to October 8, 2010, which the applicant concedes is a defence delay, and October 8 to 22, 2010, which the applicant concedes is attributable to the co-accused.] 183 November 11, 2010 – February 15, 2011 Inherent – Availability of counsel for co- accused 97 February 16, 2011 – June 23, 2011 Institutional 128 June 24, 2011 – September 28, 2011 Other – Delay by co-accused 97 Superior Court of Justice September 29, 2011 – December 14, 2011 Inherent – Intake and pre-trial in Superior Court 77 December 15, 2011 – January 17, 2012 Inherent – Availability of counsel 34 January 18, 2012 – October 1, 2012 Institutional 258 October 2, 2012 – December 17, 2012 Institutional 77 Total Delay : 1084 days Inherent: 318 days (10½ months) Crown: 23 days (¾ month) Institutional: 463 days (15¼ months – 4¼ in O.C.J. and 11 in S.C.J.) Other (Co-accused): 280 days (9¼ months)

[50] Counsel for Mr. Charles submits that there was approximately ten months of institutional delay in the Ontario Court of Justice[1]and twelve months of institutional delay in the Superior Court.[2] She says that five and a half months of what she treats as Crowndelays[3] should also count against the Crown. [51] For the reasons I have indicated, I disagree with this analysis. In my view, much of the delay in the Ontario Court of Justice isproperly attributable to delay of the co-accused and therefore neutral and it should not be regarded as either Crown delay or institutionaldelay. [52] I now turn to the issue of prejudice. (

d) Prejudice to the Accused [53]

Section 11(

b) of the Charter is concerned with prejudice to the accused caused by the delay in disposing of the charge, not withthe prejudice that arises, in every case, from the fact that the accused is charged with an office: see R. v. Conway, above, at para. 19; R. v.Kovacs-Tatar (2004), (ON CA), 73 O.R. (3d) 161, [2004] O.J. No. 4756 (C.A.) at para. 55. The burden of proof ofprejudice is on the accused, but the Court may infer prejudice from the length of the delay. The longer the delay, the more likely thatprejudice will be inferred: see R. v. Morin, supra at para. 61; R. v. Satkunananthan, (ON CA), [2001] O.J.

No. 1019,152 CCC (3d) 321 (C.A.) at para. 58. [54] Mr. Charles has adduced no evidence of any prejudice that he has suffered as a result of the delay in bringing this matter to trial.Although there were times during the history of the proceeding where his counsel objected to the delay and stated that his rights werebeing prejudiced, she never identified any demonstrable evidence or any real effect of such prejudice.

In contrast to other cases, wherethe applicant puts forward specific viva voce or affidavit evidence, either through himself or through others, no evidence of prejudice hasbeen adduced before me. [55] In considering prejudice, I must evaluate the impact of the delay on the three individual rights that s. 11(

b) is intended to protect.First, the right to security of the person and the anxiety, concern and stigma flowing from the pendency of criminal proceedings. I amadvised that Mr. Charles has no criminal record. The charges are serious. I can assume that he has suffered a certain degree of anxiety,concern and stigma as a result of the very fact that the charges have been laid and that he would continue to suffer those consequencesfor any reasonable period that it would take to bring them to trial.

I can infer that his security interest has been affected, to some extent,by any delay in bringing the charges to trial. [56] As concerns the liberty interest, the second right protected by s. 11(b), Mr. Charles was released on bail on December 31, 2009.The bail was $2,000, without deposit and with one or more sureties.

The conditions were not particularly strict and were to refrain fromdrugs; make reasonable efforts to seek and maintain employment or education; not be within 500 metres of 4110 Lawrence Avenue East;not be in possession of a cell phone or pager outside his residence; not communicate with the co-accused; and not be in possession ofweapons. Mr. Charles was not subject to either house arrest or a curfew. Mr. Charles was not employed during the period between hisarrest and trial, but there is no evidence that the charges had any impact on his ability to obtain or retain employment.

I conclude thatthere was minimal impact on Mr. Charles’ liberty interest. [57] There is no evidence that the delay has had any impact on trial fairness, the third right protected by s. 11(b). [58] In

summary, there is no evidence of actual prejudice and the inferred prejudice is only marginally greater than the prejudice thatMr. Charles would have suffered in any event as a result of involvement in the criminal justice process due to the charges themselves. V. Balancing [59] I noted earlier in these reasons the primary and secondary purposes of s. 11(

b) of the Charter—the primary purpose being toprotect the individual rights of accused persons and the secondary purpose to protect the interests of society. The balancing processrequires that I consider the extent to which Mr. Charles’ individual rights (security of the person, liberty and a fair trial) have beenaffected by the delay. The balancing process also requires that I consider society’s interest in ensuring that accused persons are in factbrought to trial and that there is a determination of the proceedings on the merits: see R. v. Morin, above, at paras. 30, 87; R. v.

Askov,above, at paras. 44-46; R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45 at paras. 30, 36; R. v. Qureshi, (ON CA), [2004] O.J. No. 4711, 190 C.C.C. (3d) 453 (C.A.) at para. 9.

The interest of society in a trial on the merits becomesgreater as the seriousness of the offence becomes greater. [60] It bears noting that the Morin guidelines (eight to ten months of institutional delay in the provincial court and six to eight monthsin the superior court) are just that – they are not a limitation period or a fixed ceiling, and delays of several months in either direction canbe justified by the presence or absence of prejudice: see R. v. Morin, above, at para. 48; R. v. Godin, 2009 SCC 26 , [2009] 2S.C.R. 3 at paras. 5, 18.

In this case, the institutional delay in the Ontario Court of Justice was well within the Morin guidelines. Even ifone were to allocate some portion of the delay attributable to the co-accused to institutional delay, it would not put the total delay in theOntario Court of Justice very far offside the guidelines.

While the delay in the Superior Court exceeds the guidelines, both the Court andcounsel recognized that there had been delays and every effort was made (including the Crown re-arranging a previously-scheduledleave) to obtain an early trial date when the matter could not proceed on the originally-scheduled trial date. Moreover, the total period ofinstitutional delay and Crown delay (16 months) was within the Morin guidelines. [61] It also bears noting that some of the delays in the Ontario Court of Justice were the result of attempts to accommodate Mr.

Williams’ right to counsel and society’s interest in the joint trial of participants in the same alleged criminal enterprise. While recognizing that there may be a point at which one accused’s right to trial within a reasonable time may trump these other interests and call for a severance, that point was not reached in this case. [ 62 ] Mr. Charles relies entirely on inferred prejudice. I am not satisfied that there has been any palpable prejudice to Mr. Charles’ personal security, his liberty interest or his right to a fair trial.

Moreover, I am not satisfied that any inferred prejudice outweighs society’s interest in the trial on the merits of a case involving a significant quantity of crack cocaine and bearing some of the indicia of trafficking. [ 63 ] To conclude, balancing the interests involved, I am not satisfied that Mr. Charles has demonstrated an infringement of his right to trial within a reasonable time. VI. Conclusion [ 64 ] For the foregoing reasons, the application is dismissed. The matter will now be spoken to for the purpose of scheduling the trial. ___________________________ G.R. Strathy J. DATE: January 9, 2013