Frank & Joe's Case — excessive Delay — Submissions

PART I - STATEMENT OF THE CASE

1. The Applicants are jointly charged with "possession under $5000" and "theft under $5000."

2. The Applicants allege a breach of their right to have their trial within a reasonable time as provided by section 11(b) of the Canadian Charter of Rights and Freedoms. They seek a stay of these proceedings under section 24(1).

PART II - SUMMARY OF THE FACTS

3. The history of this matter is outlined in the following table reproduced from the supporting affidavit.

DATE	MATERIAL EVENT
20 August 1998	Arrest: The police, acting without a search warrant, seized from the retail store at 81 Quiche Street West, Toronto, Ontario, boxes of Tylenol tablets which were in plain view. The Applicants were subsequently charged with "possession under" and "theft under." A synopsis of the allegations is attached as Exhibit "A." Investigation Completed: The investigation was completed on the day of the Applicants' arrest.
23 September 1998	1st Court Date: The Applicants attended court. They indicated that they intended to retain counsel. The charge screening form was not ready. The matter was adjourned to 21 October 1998.
21 October 1998	2nd Court Date: The Applicants attended Court with a letter from counsel Craig J. Penney. The matter was adjourned to 5 November 1998.
5 November 1998	3rd Court Date: The Crown indicated that disclosure was not ready. The matter was adjourned to 8 December 1998. Mr. Penney ordered disclosure by fax. That fax is attached as Exhibit "B."
8 December 1998	4th Court Date: The Applicants were waiting for initial disclosure. The matter was adjourned to 14 January 1999.
14 January 1999	5th Court Date: The Applicants were waiting for initial disclosure. The matter was adjourned to 11 February 1999.
16 January 1999	Disclosure Re-ordered: Mr. Penney re-ordered the disclosure by faxing the Crown's office. That fax is attached as Exhibit "B."
3 February 1999	Disclosure Ready: Mr. Penney received notice by fax that the initial disclosure was available at the Crown's office.
11 February 1999	Disclosure Obtained: Mr. Penney received the disclosure from the Crown's office, and scheduled a pre-trial meeting for 23 February 1999. 6th Court Date: The matter was adjourned to 10 March 1999.
12 February 1999	Additional Disclosure Requested: Mr. Penney requests by letter additional disclosure. That request is attached as Exhibit "C."
23 February 1999	Pre-trial Meeting: Mr. Penney had a pre-trial meeting with Mr. Michael L., Assistant Crown Attorney. Mr. Penney's 12-February-1999 request was not in the Crown brief. Mr. Penney faxed Mr. L. another copy. Mr. L. agreed to provide items 1 to 8 in Mr. Penney's 12-February-1999 additional disclosure request. Crown Request sent to Police: Mr. L. faxed the officer-in-charge requesting that he provide disclosure items 1 to 8 in the Applicants' disclosure request dated 12 February 1999. Mr. L.'s fax is attached as Exhibit "D."
1 March 1999	Police contact Defence: Detective S., the officer-in-charge, telephoned Mr. Penney. He left Mr. Penney a voice-mail message indicating that he had received the 12-February-1999 request with Mr. L.'s instructions and that he would try to process that request before 10 March 1999.
10 March 1999	7th Court Date: The Applicants were still waiting for disclosure items 1 to 8 in the Applicants' 12-February-1999 disclosure request. The matter was adjourned to 26 March 1999.
26 March 1999	8th Court Date: The Applicants were still waiting for disclosure items 1 to 8 in the Applicants' 12-February-1999 disclosure request. The matter was adjourned to 16 April 1999.
16 April 1999	9th Court Date: The Applicants were still waiting for disclosure items 1 to 8 in the Applicants' 12-February-1999 disclosure request. The matter was adjourned to 3 May 1999.
3 May 1999	10th Court Date: The Crown in 111 Court indicated that it appeared that some disclosure had arrived, but not reviewed. The matter was adjourned to 10 June 1999.
10 June 1999	11th Court Date: The Applicants were still waiting for disclosure items 1 to 8 in their 12-February-1999 request. The matter was adjourned to 9 July 1999.
9 July 1999	12th Court Date: The Crown indicated that some additional material had been received, and that Mr. Penney's office would be contacted in the very near future. The matter was adjourned to 5 August 1999. Crown Refused to Elect Summarily: The Applicants had personally appeared 11 times in Court. The Crown refused a request by the Applicants that the Crown make its summary election on the record.
13 July 1999	Additional Disclosure Ready: The Crown's office contacted Mr. Penney by fax to advise him that additional disclosure was available.
14-15 July 1999	Additional Disclosure Obtained: Mr. Penney received from the Crown's office 7 pages of additional disclosure (2 of which had been provided in the initial disclosure).
21 July 1999	Additional Disclosure Request: Having reviewed that additional material, Mr. Penney sent the Crown a letter indicating that 6 of the 8 items promised by Mr. L. on 23 February 1999 remained outstanding. Mr. Penney also requested disclosure relevant to the Applicants' anticipated section-11(b) Charter application. That letter is attached as Exhibit "E."
5 August 1999	13th Court Date: Mr. Penney advised the Court and the Crown of the six items still outstanding on his 12-February-1999 additional disclosure request. He provided the Crown in 111 Court with another copy of his 21-July-1999 letter. Mr. Penney requested intervention by the Crown's office to solve the disclosure problem.
9 August 1999	Pre-trial Meeting: Mr. Penney met with Assistant Crown Attorney Mike I. for a pre-trial meeting. The Crown brief could not be located. The pre-trial meeting had to be re-scheduled.
3 September 1999	Pre-trial Meeting: Mr. Penney had a pre-trial meeting with Mr. Frank M., Assistant Crown Attorney. Mr. M. indicated that he would contact the officer-in-charge of the matter regarding the outstanding disclosure. He agreed that a trial date should be scheduled as soon as possible. Since a day of trial time was anticipated, he agreed that Mr. Penney should schedule a judicial pre-trial.
7 September 1999	Judicial Pre-trial Scheduled: Mr. Penney contacted the trial coordinator to schedule a judicial pre-trial meeting. The earliest available time for an out-of-custody matter was 29 October 1999.
9 September 1999	14th Court Date: The matter is adjourned to 29 October 1999, the day of the judicial pre-trial.
13 September 1999	Crown Response to Disclosure Problems: Mr. John S., Assistant Crown Attorney, faxed Mr. Penney a detailed response to Mr. Penney's 20-July-1999 letter regarding the six disclosure items still outstanding in the Applicants' 12-February-1999 additional disclosure request. Mr. S's letter is attached as Exhibit "F."
1 October 1999	Additional Disclosure Ready: Mr. S. faxed Mr. Penney to advise him that the final portions of the outstanding disclosure were available at the Crown's office. That fax is attached as Exhibit "G."
5 October 1999	Additional Disclosure Obtained: Mr. Penney received from the Crown's office the disclosure outlined in Mr. S's fax of 1 October 1999. That disclosure is attached as Exhibit "H."
29 October 1999	Judicial Pre-trial: Everyone agreed that the trial be scheduled for the earliest date available. 15th Court Date: The trial was scheduled for 7 January 2000.

Affidavit Re History of Matter, Tab 3, Pages 2-5

PART III - ISSUES AND THE LAW

Test for Unreasonable Delay

4. In Morin, Mr. Justice Sopinka, writing for the majority, outlined the following factors which are to be considered when analyzing whether there has been a breach of section 11(b) of the Charter:

a. the length of the delay;

b. waiver of time periods;

c. the reasons for the delay, including

i. inherent time requirements of the case;

ii. actions of the applicant;

iii. actions of the Crown;

iv. limits on institutional resources, and

v. other reasons for the delay; and

d. prejudice to the applicant.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 13 (S.C.C.)

a. The Length of the Delay

5. The Applicants were arrested on 20 August 1997. Their trial is scheduled to commence on 7 January 2000. The total delay is 16 months and 18 days.

Affidavit Re History of Matter, Tab 3

6. This delay is prima facie unreasonable and warrants an inquiry into reasons for the delay.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 14-15 (S.C.C.)

b. Waiver of Time Periods

7. The Applicants did not by agreement or other conduct waive their section 11(b) Charter rights.

Affidavit Re History of Matter, Tab 3

c. Reasons for the Delay

8. Since this application cannot "be resolved by reason of the principles of waiver, the Court will have to consider the other explanations for delay."

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 16 (S.C.C.)

c. Reasons for the Delay — i. Inherent Time Requirements

9. This inquiry is concerned with delay factors which flow from the nature of the matter, including the complexity of the case and the intake requirements (e.g., time to retain counsel). The Court's task is to determine a realistic time period for the preparation of a particular type of case, having regard to the number of accused, the number of charges, and the complexity and volume of evidence, if fully adequate institutional resources were available to the police, the Crown's office, and other governmental agencies involved in the investigatory and prosecutorial process.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 16-17 (S.C.C.)

10. The Applicants' matter is not complex. The investigation was essentially completed on the day of the Applicants' arrest.

Affidavit Re History of Matter, Page 2

11. The complexity of the Applicants' matter is similar to that of the accused in Morin, where "the preparation of the case for the prosecution was essentially complete by the time the accused was released from custody shortly after her breathalyser test." In Morin, the Court determined that the inherent time requirements were two months.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 25 (S.C.C.)

12. It is respectfully submitted, therefore, that the inherent time requirements for the Applicants' matter are 2 months.

c. Reasons for the Delay — ii. Actions of the Applicant

13. Included in this category are all voluntary actions of the Applicants which may have caused delay, such as change of venue motions, attacks on wiretap packets, attacks on search warrants, and adjournments which do not amount to waiver.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 17 (S.C.C.)

14. The Applicants accept responsibility for delay from 20 October 1998 to 5 November 1998, the day their counsel appeared on the record. The period from 20 August 1998 to 19 October 1999 is already covered by the inherent time requirements of two months.

15. It is respectfully submitted that none of the other delay can be attributed to the actions of the Applicants. On the contrary, the Applicants have demonstrated a desire to have this matter dealt with on a timely basis.

c. Reasons for the Delay — iii. Actions of the Crown

16. His Lordship Mr. Justice Sopinka explained the nature of this inquiry in Morin: "[a]s with the conduct of the Applicant, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the [Crown] which delay the trial may be investigated."

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 18 (S.C.C.)

17. The Applicants submit that 10 months and 3 days of the delay is attributable to the Crown. The earliest available trial date was scheduled on 29 October 1999, 14 months and 9 days after the Applicants were arrested. Allowing 2 months for the inherent time requirements, 14 days for the Applicants' actions, and the 52-day delay to obtain a judicial pre-trial, the delay attributable to the Crown is 10 months and 3 days.

18. The Applicants do not allege mala fides on the part of the Crown or the members of the Toronto Police Force. As stated in Morin, the concern is not with assigning blame, but with explaining the reasons for the delay.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 18 (S.C.C.)

c. Reasons for the Delay — iv. Limits on Institutional Resource

19. The total institutional delay is 4 months and 1 day. That figure is determined as follows. The delay between the scheduling of the trial on 29 October 1999 and the trial date is 2 months and 9 days. The delay between the scheduling of the judicial pre-trial and the judicial pre-trial date is 52 days. Both those delays total to 4 months and 1 day.

Affidavit Re History of Matter, Pages 4-5

20. The Applicants concede that a total institutional delay of 4 months and 1 day is not, on its own, unacceptable for summary-conviction matters.

c. Reasons for the Delay — v. Other Reasons for Delay

21. There are no other reasons for the delay.

d. Prejudice to the Applicants — The General Approach

22. It is respectfully submitted that this Honourable Court ought to examine the following three areas to determine what prejudice, if any, the Applicants have suffered. First, the length of the delay must be examined, as prejudice may be inferred solely from the length of the delay. Secondly, the Applicants' actions must be examined to determine what inferences, if any, are to be drawn from the Applicants' conduct. Thirdly, the Court must consider the direct evidence, if any, of the prejudice the Applicants has suffered.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 23ff (S.C.C.)

d. Prejudice to the Applicants — i. Length of Delay

23. The total delay is 16 months and 18 days. It is respectfully submitted that the Court may infer that any person without a criminal record would suffer prejudice by having criminal charges pending over that long period of time.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 23 (S.C.C.)

d. Prejudice to the Applicants — ii. Actions of the Applicant

24. Accused persons have no obligation to expedite their trials, as it is the Crown's responsibility to bring them to trial. However, action or inaction on the part of the accused can be taken into account when assessing whether that accused has suffered prejudice.

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 24 & 28 (S.C.C.)

25. It is respectfully submitted that the Applicants have been diligent throughout these proceedings, and that their actions have demonstrated a desire for a timely trial on the merits.

d. Prejudice to the Applicants — iii. Direct Evidence of Prejudice

26. It is respectfully submitted that the Applicants have suffered prejudice to their security interest. It is further submitted that this Honourable Court may rely upon that type of prejudice, as explained by His Lordship Mr. Justice Sopinka:

Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to ‘the vexations and vicissitudes of a pending criminal accusation.’

R. v. Morin (1992), 71 C.C.C. (3d) 1 at 24 (S.C.C.)

27. It is respectfully submitted that the pending criminal charges have caused the Applicants stress and anxiety.

Affidavit of the Applicant, Application Record, Tab 2

d. Prejudice to the Applicants — Conclusion

28. The Applicants' direct evidence of prejudice is buttressed, firstly, by the inference that may be drawn as a result of the length of the delay, and, secondly, as a result of the Applicants' actions. Considering the totality of above factors, it is respectfully submitted that this Honourable Court ought to find that the Applicants have suffered prejudice as a result of the delay.

Conclusion

29. The Applicants submit that the delay can be broken down as follows:

Total delay: 16 months; 18 days
Waiver of time periods: none
Inherent time requirements: 2 months
Delay due to the Applicants' actions: 14 days
Delay due to Crown's actions: 10 months; 3 days
Institutional Delay: 4 months; 1 day
Other reasons for the delay: none

30. In conclusion, the Applicants respectfully submit that, having regard to the totality of factors this court must consider, the delay in bringing this matter to trial is unreasonable, and resulted in a breach of the Applicants’ rights under subsection 11(b) of the Charter.

PART IV - ORDER REQUESTED

31. It is respectfully requested, therefore, that these proceedings ought to be stayed pursuant to subsection 24(1) of the Charter.

RESPECTFULLY SUBMITTED THIS 31ST DAY OF DECEMBER 1999.

Craig Penney, Counsel for the Applicant

PART V - AUTHORITIES TO BE CITED

R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.)

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