)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 6260

CITATION : R. v. Smith, 2013 ONSC 6260 COURT FILE NO.: 12-90000241-0000 DATE: 20131009 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – GRAEME SMITH )) )) )) )) ) ))) Hafeez Amarshi, for the Crown Ostap Melnik , for the Defendant HEARD: September 24, 2013 HAINEY J. REASONS FOR DECISION OVERVIEW [ 1 ] On May 20, 2010, Mr. Smith was arrested and charged with four counts of trafficking in cocaine. The Crown alleges that he sold crack cocaine to the same undercover police officer on four separate occasions. [ 2 ] Mr.

Smith’s trial was scheduled to commence before me with a jury on September 23, 2013. [ 3 ] At the outset of his trial, Mr. Smith brought an application pursuant to section 24(1) of the Charter of Rights and Freedoms to stay these proceedings on the basis that his right to be tried within a reasonable time as guaranteed by

section 11(

b) of the Charter has been breached. [ 4 ] The total delay from the date Mr. Smith was charged to the commencement of his trial has been just over three years and four months. The delay in the Superior Court of Justice has been just over seventeen months. These are lengthy periods of delay, particularly since the charges against Mr. Smith are not complex. [ 5 ] After hearing testimony from Mr. Smith and counsels’ helpful submissions, on September 27, 2013 I ruled that Mr. Smith had established that his rights guaranteed by

section 11(

b) of the Charter had been violated and that he had suffered significant prejudice as a result. I therefore stayed the proceedings against Mr. Smith. [ 6 ] I advised the parties that written reasons for my decision would be provided later. These are my reasons. FACTS [ 7 ] On May 20, 2010, Mr. Smith was arrested and charged with four counts of trafficking in cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . The police investigation originated from information provided by a confidential informant.

The Crown alleges that an undercover police officer purchased quantities of crack cocaine from Mr. Smith on four separate occasions within a three-week period. [ 8 ] Mr. Smith was released on bail on May 25, 2010. His sureties were his mother and his older sister. His conditions of bail required him to abide by a curfew and to live with his two sureties. He was also required to comply with a number of other relatively standard conditions. [ 9 ] Prior to his arrest Mr. Smith had been living with his common law wife, Selina Sweetland, and their children. Mr. Smith and Ms.

Sweetland have four children aged 8, 3, 2 and 3 months.

[10] Since May 25, 2010, a period of three years and four months, he has been living apart from his wife and children. He testifiedabout how it has been very difficult to live apart from them for such a long time. [11] For the last two years, Mr. Smith has worked full-time as truck driver. He testified that he would have tried to enroll in aprogram at Centennial College and he would have upgraded his employment status if it had not been for his outstanding charges.

Heexplained that this was because of the possibility that he would have to interrupt his studies or employment if his trial does not go well. [12] From the time of his arrest until his committal for trial in the Superior Court of Justice Mr. Smith’s case was before theOntario Court of Justice for just over twenty-two months. Mr. Smith does not submit that this period constituted unreasonable delay. [13] Mr. Smith was committed for trial on March 19, 2012. He first appeared in the Superior Court of Justice on April 25, 2012.On July 5, 2012, Mr. Smith attended in Superior Court to set a date for his trial.

His counsel’s first available date for trial was August 20,2012. Crown counsel’s first available date was December 17, 2012. Mr. Smith’s trial was scheduled for December 17, 2012. [14] On December 17, 2012 his counsel requested an adjournment of the trial because the transcript from the second day of hispreliminary inquiry had only been provided that morning. The transcript had been ordered by Mr. Smith’s counsel on August 21, 2012. [15] Crown counsel suggested to the presiding judge, McMahon J., that an adjournment of one day would be sufficient time forMr.

Smith’s counsel to review the transcript to prepare for trial. Justice McMahon agreed but indicated that because of the time of year a one day delay in commencing the trial would likely result in the commencement of the jury’s deliberations on December 24, 2012.Justice McMahon stated as follows: So if it were any other week of the year and we had another week to play with, I think your position makes a great deal of sense, andprejudice could be overcome by … the late arrival of the preliminary by putting it over a day.

But because of the time of the year, thatisn’t going to work. [16] Justice McMahon enquired of Mr. Smith’s counsel whether

section 11(

b) of the Charter was an issue. His counsel indicatedthat it was an issue. Justice McMahon then stated as follows: I am prepared to grant the defence request for an adjournment. But because this gentleman is keen to have his trial on, we can do one oftwo things. … we can either hold it down and we can find out if you can come up with a hole in the Federal list … in the next threemonths so we won’t have an 11(

b) application. But I do want it on in three months. [17] Justice McMahon remanded Mr. Smith’s case to Practice Court on December 19, 2012 to set a new date for his trial. Beforedoing so he stated as follows: … December 19th to set a date for trial … I’ve noted: some preliminary transcript not available till last Friday. Defence adjournmentgranted to prepare their defence. Trial to be set within three months. [18] Justice McMahon endorsed the indictment “Trial to be set within 3 months”. [19] On December 19, 2012, Mr. Smith appeared without his counsel in Practice Court.

Crown counsel advised the presidingjudge that the trial had been adjourned by Justice McMahon because of the late receipt of a preliminary inquiry transcript. Crowncounsel indicated that the new trial date was to be set for September 23, 2013, nine months later. Crown counsel advised the court thatMr. Smith's counsel was available for trial on February 25, 2013. He did not advise the court that Justice McMahon had directed that Mr.Smith's new trial date be set within three months. POSITION OF THE PARTIES [20] Mr.

Smith submits that the delay in reaching his trial after he was committed for trial was unreasonable and was the result ofsystematic or institutional delay. He argues that the total period of institutional delay in the Superior Court of Justice was approximatelyfourteen months. This period of delay is well outside the guidelines established by the Supreme Court of Canada in R. v. Morin, (SCC), [1992] 1 S.C.R. 771 of between six to eight months. Mr.

Smith calculates the fourteen month period of institutionaldelay in the Superior Court by allowing for three months of inherent delay for intake, scheduling and preparation for trial. He subtracts this period from the entire seventeen month period of delayin the Superior Court resulting in a period of institutional delay of fourteen months. [21] Mr. Smith further submits that he has been severely prejudiced by this delay because he has been unable to live with his wifeand children for over three years. Further he has been unable to upgrade his education and employment status during this period.

Thisprejudice is in addition to the anxiety, concern and stigma associated with an outstanding criminal prosecution that has taken over threeyears to reach trial. [22] Crown counsel submits that the entire period of delay between December 17, 2012 and September 23, 2013 should not beconsidered institutional delay because it resulted from the delay in the preparation of Mr. Smith’s preliminary inquiry transcript. Crowncounsel, Mr. Amarshi, relies on R. v. Bellamy, [2008] O.J. No. 5474 in support of this position.

He submits that the period of institutionaldelay in the Superior Court is within the Morin guidelines provided that I do not conclude that the nine-month period between Mr.Smith’s first and second trial dates was all the result of institutional delay. Mr. Amarshi fairly concedes that if I determine that this nine-month period is attributable to institutional delay, it is outside the Morin guidelines and is unreasonable. He submits, however, that Mr.Smith has not established sufficient prejudice to justify a stay of these serious criminal proceedings even if I find that the delay wasunreasonable.

ISSUES [23] There are two issues I must decide:

1) Was the delay in the Superior Court of Justice unreasonable? 2) Was the prejudice to Mr. Smith resulting from the delay sufficiently significant to warrant a stay of the proceedings? ANALYSIS The Legal Framework [ 24 ] An accused person who claims that he or she has not been tried within a reasonable time has the burden of establishing a violation of

section 11(

b) of the Charter on a balance of probabilities. [ 25 ] In considering whether there has been a violation of

section 11(

b) of the Charter the court must consider the following factors: • the length of the delay; • any waiver of time periods by the accused person; • the reasons for the delay, including: o the inherent time requirements of the case; o the conduct of the accused person or delays attributable to the accused person; o the conduct of the Crown or delays attributable to the Crown; o systemic or institutional delays; o any other reasons for the delay; and • any prejudice to the accused person. [ 26 ] The final stage of the analysis requires the court to balance society’s interest in seeing that persons charged with serious criminal offences are brought to trial against society’s and the accused person’s interest in a prompt adjudication of criminal charges.

The Delay [ 27 ] Is the approximately fourteen months of delay in the Superior Court of Justice relied upon by Mr. Smith systemic or institutional delay? [ 28 ] Systemic or institutional delay is delay that is attributable to the Crown. It is the period of delay that commences when the parties are ready for trial but the system cannot accommodate them. [ 29 ] The Supreme Court of Canada in R. v. Morin established administrative guidelines for systemic delay of between six to eight months in the Superior Court of Justice.

Although this is not an inflexible limitation period within which an accused person must be brought to trial, it will weigh against the Crown in the overall assessment of the reasonableness of the total period of delay. [ 30 ] Mr. Smith first appeared in the Superior Court of Justice on April 25, 2012. I agree with Mr. Smith’s counsel that the inherent time requirements of the case for intake, scheduling and preparation for trial should have been approximately three months. Crown counsel argues that the nine month delay between Mr.

Smith’s first trial date on December 17, 2012 and his second trial date on September 23, 2013 should not all be characterized as institutional or systemic delay. This is because the delay was occasioned by the late delivery of his preliminary inquiry transcript. I disagree with this submission. Although the adjournment on December 17, 2012 was necessitated by the late delivery of the transcript, Justice McMahon made it clear to the Crown and to Mr. Smith that the new trial date was to be set within three months to avoid a problem under

section 11(

b) of the Charter . [ 31 ] Mr. Smith’s counsel was available for trial on February 25, 2013, well within the three month period. However, Crown counsel advised the presiding judge in Practice Court that the trial date was to be set for September 23, 2013, nine months later. Mr. Amarshi was unable to explain why this occurred in light of Justice McMahon’s clear direction to the parties that the trial was to be scheduled within three months. This additional nine month delay was not occasioned by the late delivery of the transcript. It cannot be attributed to Mr.

Smith whose counsel was available for trial within the three month period. Under the circumstances it must be characterized as systemic or institutional delay. [ 32 ] Crown counsel concedes that if I find this additional period of delay to be systemic the total systemic delay in the Superior Court of Justice of approximately fourteen months is well outside the Morin guidelines. I agree with this submission. The systemic delay in getting Mr. Smith’s case to trial in the Superior Court was approximately fourteen months. This period of delay cannot be attributed to Mr. Smith. It could have been avoided by the Crown.

The Crown should have complied with Justice McMahon’s direction and scheduled Mr. Smith’s trial date within three months of his first trial date. I have not been provided with an explanation about why this did not occur. Under the circumstances this fourteen-month period of delay was unreasonable and violated Mr. Smith’s rights under

section 11(

b) of the Charter . Prejudice to Mr. Smith [ 33 ]

Section 11(

b) of the Charter is intended to protect the following: • the right to security of the person, by minimizing the anxiety, concern, and stigma of exposure to criminal proceedings;

• the right to liberty, by minimizing exposure to restrictions on liberty from pre-trial incarceration and restrictive bail conditions; and • the right to a fair trial, by ensuring that proceedings take place while evidence is available and fresh. [ 34 ] It is not presumed that every accused person suffers prejudice. However, the longer the period of delay, the more likely that an inference of prejudice will be drawn. Further, the focus of the constitutional protection under

section 11(

b) of the Charter is in relation to the prejudice that arises from the delay in reaching trial and not the prejudice which results from being charged with an offence. [ 35 ] Mr. Smith provided affidavit evidence and oral testimony in support of his application. He described the prejudice he has suffered as a result of the delay in having his trial. He stressed that his bail conditions have required him to live apart from his children and his wife for much too long.

He stated the following in his affidavit: Every time a court date approaches we get our hopes up that this separation will soon end, only to have the matter drag on for many more months. Every month I am away from my family is another month filled with missed milestones of my children. These memories can never be recreated. [ 36 ] He was vigorously and skillfully cross-examined by Mr. Amarshi. Under cross-examination he explained that he had grown up without a father in his life and he wants to be “there for my children”. I found him to be a credible and sincere witness.

I accept his evidence that he has suffered a great deal because he has had to live apart from his children and his wife. [ 37 ] I also accept his evidence that he has essentially put his life “on hold” while he has been awaiting his trial on these charges. I found him to be candid when he explained to Crown counsel that he has not attempted to upgrade his employment or his education because if his trial does not go well he would likely have to interrupt his employment or studies to go to jail. [ 38 ] I am satisfied that Mr.

Smith has suffered significant prejudice as a result of the unreasonable delay in the trial of these charges. Balancing Exercise [ 39 ] In the final analysis I must balance Mr. Smith’s interests that are protected by

section 11(

b) of the Charter with society’s interests in having these charges adjudicated on their merits. [ 40 ] In the particular circumstances of this case the interests of Mr. Smith and society in having a prompt trial outweigh society’s interests in a trial on the merits of these charges. In arriving at this conclusion I have considered all of the circumstances of this case. I place particular reliance upon the following: • The overall length of the delay in this case of three years and four months and the institutional delay in the Superior Court of Justice of fourteen months; • The charges against Mr. Smith were not complicated or complex; • Mr. Smith never waived his

section 11(

b) rights. His counsel made it clear when asked by Justice McMahon that his rights under

section 11(

b) were an issue; • Justice McMahon recognized that Mr. Smith’s right to be tried within a reasonable time was in jeopardy and ordered a trial to be held within three months. Notwithstanding Justice McMahon’s direction, Crown counsel scheduled his trial nine months later. • Mr. Smith’s counsel was available for trial within the three-month period. The nine month delay cannot be attributed to Mr. Smith. It could have been avoided by the Crown; • Mr. Smith has suffered significant prejudice as a result of the delay. In particular he has had to live apart from his wife and children for over three years.

CONCLUSION [ 41 ] In conclusion, I am satisfied that Mr. Smith has established that his right to be tried within a reasonable time, as guaranteed by

section 11(

b) of the Charter , has been violated. Having balanced all of the relevant factors, I am satisfied these proceedings should be stayed under section 24(1) of the Charter. These proceedings against Mr. Smith are accordingly stayed. HAINEY J.

Released: October 9, 2013 CITATION : R. v. Smith, 2013 ONSC 6260 COURT FILE NO.: 12-90000241-0000 DATE: 20131009 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – GRAEME SMITH Reasons for DEcision HAINEY J. Released: October 9, 2013