Civil rights — Trials, due process, fundamental justice and fair hearings — Speedy trial, accused's right to — What constitutes within a reasonable time — Evidence of prejudice and causes of delay — Canadian Charter of Rights and Freedoms — Denial of rights — Remedies, stay of proceedings.

       Application by the accused Taylor to stay criminal charges against her because she was not tried within a reasonable time. Taylor was arrested for importing drugs on December 26, 2000. It took until May 18, 2001 to get a mandatory judicial pre-trial. The preliminary inquiry occurred on March 4 and 5, 2002. The matter first appeared in Superior Court on April 12 and a trial date of January 6, 2003 was set at the pre-trial of August 9. That date had to be changed to March 24 because counsel for the co-accused was unavailable. The trial did not occur on that date. The trial had to be adjourned to October 23 because of the unavailability of Taylor's counsel. The trial could not proceed on that date because there was a problem with the co-accused. The matter was adjourned to March 22, 2004.

       HELD:  Application allowed. The first five months were neutral intake time. This left 34 months. Taylor was responsible for six and a half months of delay. The Crown was responsible for 27.5 months of delay. This included the 12 months between March 2003 and March 2004. There was no reason why the Crown could not have proceeded alone against Taylor in March 2003. Taylor suffered real and presumed prejudice because of the unreasonable delay in this case.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 11(b).

Controlled Drug and Substances Act.

Counsel:

Karen Dunlop, for the Crown.

Carlos Rippell, for the applicant.

¶ 1      MOSSIP J.:— The defence brought an application pursuant to ss. 11(b) of the Charter to stay the charges Ms. Taylor faces, on the grounds that she has not had her trial within a reasonable time. I gave my decision granting the defence's application on March 23, 2004 and indicated that I would give the reasons for this decision shortly. The following constitutes those reasons.

Background

¶ 2      On December 26, 2000, Judith Taylor was arrested with another accused, Ms. Sterling, and charged with the offence of importing a controlled substance contrary to the Controlled Drug and Substances Act. Ms. Taylor, after being referred to secondary inspection, was found to be carrying eleven sticks of sugarcane which contained 351.5 grams of cocaine, 1,251 grams of cannabis oil, and 63 grams of cannabis marijuana.

¶ 3      Both counsel went through the numerous dates that this matter was before the court and the transcripts for virtually all of those dates were available and in the Motion Record filed by the defence. Further, the defence prepared an analysis of the delay that is found in chart form at pages 13, 14 and 15 of Tab 1 of the Defence's Motion Record. The Crown also prepared an analysis of the delay in graph form at my request. Counsel obviously disagreed as to the assignment of the delay, though they essentially agreed on the reasons for the delay.

¶ 4      Ms. Taylor was arrested on December 26, 2000 and the matter came up for trial before me on March 22, 2004. The Crown concedes that the 39 months from arrest to trial is a sufficient period of time to trigger the inquiry as to the reasonableness of the delay.

Analysis

¶ 5      The Supreme Court of Canada set out in R. v. Askov, [1990] 2 S.C.R. 1199 and R. v. Morin, [1992] 1 S.C.R. 771 criteria to examine on an 11(b) application, and administrative guidelines to consider in determining the reasonableness of the delay.

¶ 6      The Supreme Court of Canada in Morin, supra held at p. 21 that a period of institutional delay of between eight and ten months was a guide for the provincial courts, and a range of six to eight months delay, after committal for trial, is appropriate for the Superior Courts.

¶ 7      Further, in the case of R. v. Sharma, [1992] 1 S.C.R. 814, the Supreme Court of Canada held that when the case was tried in Brampton, the lower end of the ranges should apply because this jurisdiction where Askov, supra, originated, has had longer to address the problems.

¶ 8      Accordingly, the total acceptable time period of institutional delay is in the range of 14 to 18 months from the time of arrest to the date of trial. Obviously, the Guidelines set out by the Supreme Court Canada are not fixed limitation periods, nor can they be applied in a purely mechanical manner.

¶ 9      The absence or presence of prejudice to an accused will influence the decision with respect to any application pursuant to s. 11(b) of the Charter. There is, as has been noted in many of the cases, presumed prejudice when there is extraordinary delay. However, if there is no actual prejudice to a particular accused, beyond the presumed prejudice or, the prejudice to an accused is slight, then notwithstanding that the delay may be outside of the Guidelines, the s. 11(b) application may not be successful.

Reasons for the Delay

¶ 10      The following is my summary of the procedural history and the manner in which I have categorized the delay considering the criteria set out in Askov, supra and Morin, supra.

¶ 11      This period of time is described as the "initial intake period". In this case, the time to get a mandatory judicial pretrial in the Ontario Court was from December 20, 2000 to May 18, 2001, a period of 5 months. In a decision of Durno J., R. v. Stacey, [2002] O.J. No. 5143 he wrote at paragraph 27 that "a three month wait for a mandatory judicial pretrial is excessive. This was not a case where there was a lengthy period required to prepare disclosure". Justice Durno wrote further at that paragraph "even considering reduced summer schedules the time should not exceed two months", in referring to how long it should take to get a judicial pretrial in the Ontario Court.

¶ 12      In this case the charges were straightforward importing where knowledge of the accused was the only issue. These cases are routine in the Brampton courts. There were two accused, however, five months to get a pre-trial date is probably still on the outside range, and constitutes some institutional delay to even getting to the mandatory judicial pretrial. I mention this now as it is the beginning of a matter the Crown and the court, needed to pay attention to very early on.

¶ 13      The second component of the inherent time requirements of a case are the time required to prepare and actually try the case. This matter, for reasons not completely clear to me, required two days for a preliminary inquiry. At the mandatory judicial pretrial on May 18, 2001 the first two-day preliminary inquiry dates offered to Counsel were approximately 10 months later, being March 4 and 5, 2002. In my view this is too long to have to wait for a two-day preliminary inquiry involving two accused on a very straightforward matter. The preliminary inquiry apparently took a day and a half so there was not a significant under or over estimating my counsel. Again, this is another early signal to the Crown and the Court that this matter needed attention.

¶ 14      The final time period that makes up this area, is what is referred to as the second intake period, that is the date from committal for trial to the date upon which the trial date is set in the Superior Court. In this case, the preliminary inquiry was held on March 4 and 5, 2002. The matter first appeared in the Superior Court on April 12, 2002 and the trial date was set at a Judicial Pretrial in that Court on August 9, 2002.

¶ 15      All of the above periods of time, although most of the time can be categorized as inherent time requirements, and therefore as "neutral" in the assessment of delay and not included in the administrative guidelines, unless excessive, do point to a matter that has from the outset a potential 11(b) problem.

¶ 16      At the judicial pretrial in the Superior Court and on August 9, 2002, Counsel were offered September, 2002 as a possible trial date. It is to be noted that this date is already outside of the guidelines for a matter to get to trial. Counsel for Ms. Taylor was not available until December, 2002. The next available trial date was January 2003 which was five months later. It is to be further noted from the transcript of the court appearance following that pre-trial, that Justice Speyer explored with counsel the issue of 11(b), and at that time counsel all agreed that 11(b) was not a serious problem as of this date.

¶ 17      As I have indicated above, although I find the times in the Ontario Court were slightly longer than they ought to have been, there would not have been in my view, a reasonable likelihood of success of an 11(b) application on the return of the trial date set for January 6, 2003, if it had gone ahead at that time. The cumulation of all of this time however, demonstrates that this was a file that needed to be closely monitored by the Crown and the Court with respect to the issue of delay.

¶ 18      Counsel for the co-accused Ms. Sterling brought a motion before Justice Belleghem on November 12, 2002 requesting an adjournment of the January trial date as he had double-booked himself. Justice Belleghem dealt with what he perceived to be a potential 11(b) problem head-on at that motion. Two portions from the transcript of that motion are relevant on this application:

¶ 19      Initially, Ms. Taylor's counsel refused to waive her 11(b) rights on the motion, however, she was persuaded to do so in order that Ms. Sterling could have her counsel of choice at trial. Ms. Taylor did waive her 11(b) rights from January 6, 2003 to the new trial date for the week of March 24, 2003, being two months and three weeks.

¶ 20      The trial was not reached on March 24 or 25, 2003 in the Superior Court. On March 26, 2003 there were lengthy discussions between counsel and the assigned trial judge. The scheduling of the planned voir dire relating to the statements of both accused was discussed. A review of the lengthy transcripts on March 26, 2003 and March 31, 2003 in front of the trial judge, demonstrates clearly the significant problems that this case started to have.

¶ 21      An issue arose on both of those dates with respect to whether or not the dog handler evidence was expert evidence, who was going to call the dog handler, and whether proper notice had been given if he was an expert and was going to be called. The issue of severing the two accused arises for the first time on March 26, 2003. It is not disputed that the Crown did not intend to call the dog handler against Ms. Taylor as part of its case at trial. Defence counsel for Ms. Sterling intended to call the dog handler as part of his defence, if the Crown was not going to do so. The dog handler's evidence was prejudicial to Ms. Taylor. The issue of severance was a live one as a result of this development.

¶ 22      Counsel for Ms. Taylor discovered just before court on March 31, 2003, that Ms. Sterling's counsel had cross-examined the dog handler at a Special Examiner's office with the Crown in attendance. Not only did Ms. Taylor's counsel not get any notice of this cross-examination so that he could choose to attend, he was not even told it had taken place until court that day. The Crown in my view is responsible for this late disclosure of evidence to Ms. Taylor's counsel and for his not knowing about the cross-examination of the dog handler in the first place by copying him with the Notice.

¶ 23      Without going into the painful detail as to what transpired on these days, the end result was that the Crown's position was that she would not proceed separately against Ms. Taylor and the Crown would not argue the voir dire with respect to the accused's statements separately from the issue of the dog handler. Now, in fairness to the Crown, the Court did indicate near the end of the March 31st transcript, after the Crown's position was clear, that all of the motions should be heard together. However, the Crown had already put its position clearly before the Court that it would not entertain severing the two accused and would not proceed with a voir dire with respect to the statements, to at least get the trial commenced, with the balance of the trial to continue on another day. Accordingly, the Crown cannot argue that it was doing everything it could to get this matter heard.

¶ 24      Defence counsel for Ms. Taylor said during all of these discussions, on at least four occasions on one day, that he was ready to proceed on the case that he had been given disclosure for. He advised the court there had never been any discussion about introducing the dog handler evidence against Ms. Taylor and he wanted the trial to proceed.

¶ 25      Counsel for Ms. Taylor did everything humanly possible to have something go ahead on these March, 2003 dates. He offered to argue the dog handler issue, the statement issue, or go ahead with the trial against Ms. Taylor alone.

¶ 26      There was absolutely no significant discussion, if any at all, by the Crown on these days as to any trial delay concerns.

¶ 27      The trial was put over from March 31, 2003 to October 20, 2003. The first date offered by the Court was June 23, 2003. Ms. Taylor's counsel was on scheduled holidays but was available before June 23, 2003, and thereafter before the October 20, 2003 date, namely on August 5, 2003, August 18, 2003, and October 6, 2003. This delay cannot be assigned to the defence. Counsel cannot be penalized if they do not take the first date offered by the court, especially when they are available on earlier dates both before that first date and before the assigned date.

¶ 28      On October 20, 2003 it became clear that there was going to be a problem with respect to the co-accused Ms. Sterling. Her counsel was requesting an adjournment. Ms. Sterling was pregnant and for health reasons could not proceed on that date. The time had been set aside and counsel for Ms. Taylor was requesting that the matter proceed on that date against Ms. Taylor alone. The Crown would not do so.

¶ 29      The discussion went like this:

¶ 30      Mr. Usher asks Justice Durno who is hearing the adjourned request if the matter would have been reached that week. Justice Durno replies that it would have.

¶ 31      I have no idea why Crown counsel said there was no trial date set. October 20, 2003 was a trial date, and the trial could have gone ahead that day against Mr. Taylor.

¶ 32      Crown counsel ought to have known that it was not going to be just another two weeks for Ms. Taylor's trial. In fact, it was another five months for the trial of Ms. Taylor in the Superior Court.

¶ 33      The matter was put over to October 30, 2003 to set a further trial date. On that date the Crown makes it clear on the record that they will be severing the two accused.

¶ 34      The matter was put then over to November 5, 2003 to set two separate trial dates. There is a lengthy discussion between counsel and Justice Hill wherein he expresses extreme frustration at the length of time this matter has been before the Courts and in particular how long the cases have been in the Superior Court. The date of December 1, 2003 was offered, but the Crown was not available. Ms. Taylor's counsel was. The date of January 19, 2004 was offered but the officer was not available. The defence was available on both those dates. The trial date of March 22, 2004, which was the next Federal Crown sittings, was therefore assigned.

Conduct of the Applicant

¶ 35      The defence could be said to be responsible for some delay in the Superior Court, from April 12, 2002 to August 9, 2002, as the defence was waiting for the transcripts from the preliminary inquiry to determine whether to proceed with a certiorari application.

¶ 36      The defence ordered the transcripts in a timely fashion. However, due to labour disputes and the illness of the reporter, there was an excessive delay to obtain the transcripts in order for the defence to make their decision.

¶ 37      Ultimately, the application was abandoned, and the trial date in Superior Court was set.

¶ 38      Given what I have said below with respect to this entire time period, it is unnecessary to ascribe any of this time to the defence, nor would I be inclined to do so.

¶ 39      Defence counsel, on August 9, 2002, was unable to take the first available trial date in Superior Court offered which was September, 2002. Ms. Taylor's counsel was available December 2002. I would therefore assign this 4 month delay to Ms. Taylor.

¶ 40      Defence further waived 2.5 months before Justice Belleghem in order to accommodate the co-accused's counsel.

¶ 41      Other than the above, Ms. Taylor has been pushing for a speedy trial from the outset, and continued to do so on all of the aborted trial dates.

¶ 42      There are no other actions of Ms. Taylor or her counsel that are to be faulted in this matter.

Conduct of the Crown

¶ 43      As I stated at the outset, in my view, this matter should have been "red flagged" in the Federal Crown Attorney's office even while it was in the Ontario Court.

¶ 44      In my view, the Crown's office in March, 2003 and October, 2003, seemed to be unaware of the history of the file, or if they were, they were unconcerned about the issue of delay as it applied to Ms. Taylor. The Crown's decision not to either sever the two accused and proceed against Ms. Taylor separately in March 2003, or at least agree to proceed with respect to a voir dire on the admissibility of the statements, was an ill-advised one.

¶ 45      There is no reason given for why the matter did not proceed against Ms. Taylor separately on the October, 2003 trial date.

¶ 46      It is inexcusable that the Crown did not find someone to take this trial on December 1, 2003.

¶ 47      I would assign from March 2003 to March 2004 being 12 months, to the Crown.

Systemic and Institutional Delays/The limits on Institutional Resources

¶ 48      If I start the analysis with the total of 39 months and deduct the first five months to the May 18, 2001 as neutral intake time, I am left with 34 months.

¶ 49      If I subtract from the 34 months time that can definitely be assigned to the defence, which is 2.5 months of waiver, and the unavailability in the Superior Court by Ms. Taylor's counsel from September, 2002 the first trial date offered, to December, 2002, when counsel was available, which is another four months, I am left with 27.5 months.

¶ 50      As set out above, Ms. Taylor's counsel was actively pushing for an early trial date and therefore none of this 27.5 months can be assigned to her.

¶ 51      The time that is therefore not assignable to the Crown, above, must fall into this category.

Prejudice

¶ 52      Ms. Taylor, in my view, has suffered both presumed prejudice and real prejudice because of the unreasonable delay of this matter getting to trial.

¶ 53      I find the real prejudice experienced by Ms. Taylor as a result of the unreasonable delay in this matter to be set out fully in her affidavit sworn March 15, 2004. She also filed medical notes from her doctor.

¶ 54      Ms. Taylor has had to live with her surety, her father, since she was released on bail on January 15, 2001. Whether she really wants to do so or not, it is still an infringement on her freedom.

¶ 55      The stress experienced by Ms. Taylor was real, as set out in her Affidavit and the doctor's notes.

¶ 56      Ms. Taylor has experienced prejudice with respect to her employment, her finances, her personal life, and her health as a result of the delay in processing and disposing of her matter.

Conclusion

¶ 57      As set out in Morin, supra, there is a balancing that must be done in a s. 11(b) analysis. The court must balance the rights of accused and the public to a trial within a reasonable length of time. There is also the public interest in serious criminal allegations, such as drug importation in this case, being tried.

¶ 58      For all of the above reasons, and considering the nature of the charges, 27.5 months assignable to the Crown and to the Court system is too long a delay for this accused person to have their trial in a reasonable length of time. There is also real prejudice to Ms. Taylor.

¶ 59      For all of the above reasons, I am satisfied the Applicant has met the onus in establishing that the delay is unreasonable, and the charge against her is accordingly stayed.

MOSSIP J.

QL UPDATE:  20040624
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