Daniel's Case — Judge's First Ruling

Between
Her Majesty the Queen, and Daniel J.

[1997] O.J. No. 6362

Ontario Court of Justice
Newmarket, Ontario
O'Hara J.

Oral judgment:   May 20, 1997.
(74 paras.)

¶ 1      O'HARA J. (orally):  — I've read the material.

¶ 2      MR. PENNEY:    Thank you, Your Honour.  Mr. J., could you please come forward and have a seat right here. Just have a seat right there in the blue chair, Mr. J. Your Honour, I have no further evidence and I don't believe my friend does or intends to cross-examine so, if my friend's content and Your Honour's content, I'll proceed with my submissions.

¶ 3      THE COURT:    Go right ahead.

¶ 4      MR. PENNEY:    Thank you, Your Honour.  Your Honour, it's an uphill battle.  It's nine months and a little bit more from the time that Your Honour set the trial date.  Although there is a two month period there when we had to get a judicial pre-trial and nowadays we're - we're setting trials even with less time than that.  I'm arguing, Your Honour, ...

¶ 5      THE COURT:    That's because I judicially pre-trial everything.

¶ 6      MR. PENNEY:    I think it's a little bit more than that. Your Honour's put more effort into it than that and a lot of ... I think there's been some reorganization here lately because there were delays for a long, long time.

¶ 7      YourHonour, I'm essentially arguing today thatthe prejudice that Mr. J. has sufferedfrom the date of arrest until today justifiesshortening the tolerable period of institutionaldelay.

¶ 8      Now there are three types of rights that section 11(b) protects.  One right is the right to a fair trial which I'm not arguing because I'm not arguing the delay affects the witness's reliability or their memory.

¶ 9      There's also the right to liberty where the release from jail has restrictive bail conditions.  I'm not arguing that.

¶ 10      But Mr. Justice Sopinka lists as the first right that is being protected is his right to security of the person.  And this right to the security of the person protected in section 11(b) is seeking to minimize the anxiety, concern, and stigma of exposure to criminal proceedings.  That right is on no less of a plane, Your Honour, than someone who's in custody or someone whose right to a fair trial has been affected.  Mr. J. has the right to be protected by section 11(b) and today he advances evidence of that prejudice and seeks a remedy because of that prejudice.

¶ 11      And Mr. Justice Sopinka outlines as well the type of evidence that has to be called.  He says, "prejudice to the accused's security interest can be shown by evidence of ongoing stress or damage to reputation as a result of over long exposure to vexations and vicissitudes of a pending criminal accusation".

¶ 12      In going through the criteria that the Superior Court of Canada said Your Honour must consider - going through it quickly - the total delay, Your Honour, is ...

¶ 13      THE COURT:    Clearly calls for an examination based on the time frame here.

¶ 14      MR. PENNEY:    Thank you, Your Honour.

¶ 15      THE COURT:    I don't think Ms. Hewak would argue that I don't have to - have to take a careful look at this, it's ...

¶ 16     MR. PENNEY:    That's correct.

¶ 17      THE COURT:    It's over ...

¶ 18     MR. PENNEY:    No waiver, ...

¶ 19      THE COURT:    It's over ...

¶ 20      MR.PENNEY:    ...Your Honour.

¶ 21      THE COURT:    ... the examination period.  There's clearly been no waiver.

¶ 22      MR. PENNEY:    No waiver.  I think, in fairness to the Crown, that there's no specific delay which can be attributed to the Crown - just as no specific delay can be attributed to Mr. J.

¶ 23      However, Your Honour must consider as well actions or inaction on the part of the Crown and on the part of the accused.

¶ 24      THE COURT:    All right.

¶ 25      MR.PENNEY:    Ithink Morin makesthatveryclear.

¶ 26      THE COURT:    That's systemic too.  The Crown wouldn't have been allowed to bring it forward unless it was for resolution.  So that's part - that's part of the system and it doesn't necessarily accrue against them or against you or for you. It simply - and I'll say on the record the way that the - we've already eluded to the fact that there are changes in scheduling.

¶ 27     MR. PENNEY:    Yes.

¶ 28      THE COURT:    We're now setting trial dates in - within two months.  The reason we've done that is that I didn't ...

¶ 29     MR. PENNEY:    Yes.

¶ 30      THE COURT:    ... let them bring anything forward ...

¶ 31     MR. PENNEY:    Yes.

¶ 32      THE COURT:    ... unless it was for resolution. That's part of the system.

¶ 33     MR.PENNEY:    Yes.

¶ 34      THE COURT:    It was rigid.  It operated in this case against Mr. J. because the Crown wouldn't ...

¶ 35     MR. PENNEY:    Yes.

¶ 36      THE COURT:    ... have been - had no ability to bring the matter forward.

¶ 37      MR. PENNEY:    Well, I was aware of that until now. Because I know in the past there were times - when I set the date Mr. J. wanted the earliest trial date.  In fact I tried to set a trial date ...

¶ 38     THECOURT:    Yes.

¶ 39      MR. PENNEY:    ... the first time it was up.  But it wasn't until early in the fall that 11(b) became a material issue and having read Morin I realize - I think Your Honour - Your Honour has an obligation as defence to let the Crown and ...

¶ 40     THE COURT:    Yes.

¶ 41      MR. PENNEY:    ... everybody know that ...

¶ 42     THE COURT:    That ...

¶ 43     MR. PENNEY:    ... look, ...

¶ 44      THE COURT:    ... was done and the Crown ...

¶ 45      MR.PENNEY:    ...we'renotcontent...

¶ 46      THE COURT:    ... put on notice.

¶ 47      MR. PENNEY:    ... with the pace of the proceedings. 11(b)'s a live issue from now because sometimes the Crown can accommodate.

¶ 48      THE COURT:    Passive as in - contrary to R. v. Soladgco [sic] - it's actually Drego Solego - passive acquiescence can be considered against an accused on an 11(b) motion.

¶ 49      MR. PENNEY:    Yes.  Well, certainly, Your Honour, in Morin it worked against Ms. Morin and it wasn't raised until the day of the trial.  Defence counsel hadn't responded to the letter and certainly we're not in that category ...

¶ 50      THE COURT:    No, I agree.

¶ 51      MR. PENNEY:    ... because we raised this at a very, very early stage.  Your Honour, the prejudice at first blush doesn't seem as important as the prejudice to the accused who's sitting in the box awaiting a trial.  Mr. J., Your Honour, he's a citizen, he's a productive hardworking human being.  He details in his affidavit, I might add, it's uncontested and it's uncontradicted evidence in his affidavit as well - ...

¶ 52      THE COURT:    I take it that ...

¶ 53      MR. PENNEY:    ... in his affidavit ...

¶ 54      THE COURT:    I take it that it's caused stress and the stress has shown at work, and that's revealed by his affidavits, and I don't think Ms. Hewak argues that he didn't to that extent suffer some prejudice.  The question is - it's a balancing that I have to do.

¶ 55      MR.PENNEY:    Thatiscorrect,YourHonour,but,intermsofthetolerabledelay,theguideline-andit'sjustaguideline-iseighttotenmonths.  YourHonour'sjustifiedindeviationseitherwayoftwotothreemonthsbythepresenceorabsenceoftheprejudice.

¶ 56      Now in Ms. Morin's case it worked against her. There was no prejudice, no evidence led and, in fact, there were actions consistent with a lack of prejudice.

¶ 57      In my case we have actual prejudice.  Not only do we have actual prejudice, we have notice of actual prejudice and very early on.  It may have been that the Crown might have found a date or in consultation with the trial coordinator. I knew there were efforts being made here all the time to deal with accuseds who are suffering prejudice, and there are changes. And, in fact, these changes have been implemented in the past three months. And now I understand sitting in this Court today that there are trial dates being set within 60 days.  I couldn't even get a judicial pre-trial date within 60 days.

¶ 58      THECOURT:    Well,youstillcouldn'tprobably,it'sgetting-we're-thejudicialpre-trialsarecreepingbacktofiveandsix...

¶ 59     MR. PENNEY:    Yes.

¶ 60      THE COURT:    ... weeks.

¶ 61      MR. PENNEY:    And this is - and, Your Honour, just because it's happened here, such a long time, and it's a common occurrence - it doesn't make it right.  His rights are still being breached under section 11(b), and it's my submission to Your Honour that, based on the evidence here that he's suffering substantial prejudice, that section 11(b) has been breached, and that these proceedings should be stayed.  And, subject to any questions Your Honour might have, those would be my submissions.

¶ 62      THE COURT:    I don't need to hear from you.

¶ 63      I agree to a certain extent with submissions of counsel.  I believe that this is a case that calls for close examination.

¶ 64      It is right on the borderline of what is barely acceptable.

¶ 65      There is no doubt that there was some prejudice as a result of his particular job and family circumstances and his particular personal characteristics in that he reacted to the stress in the particular way he did.  I do not disbelieve that he did, and I accept that there was some real prejudice accrued to him.

¶ 66      In my view it is not sufficient in this case and it is not sufficiently totally attributable to the delay nor is the delay sufficient to warrant staying this matter.

¶ 67      I agree it is on the edge, but it is in this case. When I balance all of the factors to be considered on an application under 11(b), I cannot help but conclude that this is a matter which ought to be tried on its merits and I so order.

¶ 68      MR. PENNEY:    Thank, Your Honour.

¶ 69      THE COURT:    I should note that it is the plight of people like Mr. J. that has moved the Court to try to reschedule itself.  That rescheduling is in process and, hopefully, by next October, Mr. J. and those in his position would not be faced with this kind of delay.

¶ 70      A great deal of effort has gone in by the assignment of extra judges and extra Crown Attorneys from other jurisdictions to try to ameliorate this problem and I am sure that does not make Mr. J. feel any better.

¶ 71      I can, however, assure him that we have done our best to see that the situation has changed as quickly as we were able to change it.  It does not help him.  Some people still have to be tried on the old system unless their case is so far outside the guideline that a stay is required.  I do not believe his is.

¶ 72      MR. PENNEY:    Thank you, Your Honour.  If we don't get on on the 28th?

¶ 73      THE COURT:    If you don't get on on the 28th, I suspect you get a free pass.

¶ 74      MR. PENNEY:    Thank you, Your Honour.  Thank my friend.