



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Steele, 2012 ONCA 383

DATE: 20120607

DOCKET: C52303

Rosenberg, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Xavier Steele

Appellant

Michael Dineen, for the appellant

Scott Latimer, for the respondent

Heard: March 19, 2012

On appeal from the conviction entered by Justice Croll of
    the Superior Court of Justice on March 12, 2010.

Rosenberg J.A.:

[1]

The appellant appeals from his convictions for robbery, use of an
    imitation firearm and obstruction of a peace officer on the sole ground that
    the application judge, Marrocco J., erred in dismissing his application for a
    stay of proceedings based on a breach of the right to trial within a reasonable
    time as guaranteed by s. 11(b) of the
Canadian Charter of Rights and
    Freedoms
. The appellants trial took place almost three years after he was
    charged. For the following reasons, I would allow the appeal, set aside the
    convictions and stay the proceedings. In my view, the application judge erred
    in his characterization of the delay due to the states failure to make timely
    disclosure, erred in failing to consider inferred prejudice from the delay, and
    used the wrong test for whether to grant a stay of proceedings.

THE FACTS

[2]

The charges against the appellant arose out of the robbery of a video games
    store. It was alleged that the appellant and two accomplices robbed the store.
    One of the accomplices allegedly wielded a replica firearm. The appellant was
    arrested on April 5, 2007. Following the unsuccessful application before
    Marrocco J. for a stay of proceedings, the appellant and one of his
    accomplices, Remone Rodney, were convicted by Croll J. on March 12, 2010. The
    appellant was sentenced on June 30, 2010 to 22 months and 10 days imprisonment
    and 18 months probation.

THE DELAY

The Disclosure Problem

[3]

As indicated, the appellant was arrested on April 5, 2007. His bail
    hearing was eventually held on April 13, at which time he was released on
    conditions with house arrest terms. He was required to be at home unless in the
    presence of his mother or a surety or for work purposes. The appellant made
    eight further court appearances while waiting for disclosure. Initial
    disclosure was apparently delivered to Crown counsel in mid-October 2007. Crown
    counsel needed time to vet the disclosure before it was provided to the
    appellant. The case was adjourned to November 1, 2007 so that the appellants case
    could be joined up with that of his co-accused. On November 1, initial
    disclosure was made to counsel for the co-accused. The appellants counsel was
    unable to attend on that date. The case was adjourned to November 29. Counsel
    for the appellant stated that she had not yet been able to pick up disclosure.
    The transcript of that appearance indicates that counsel had experienced
    difficulty in picking up the disclosure. The case was adjourned to December 20,
    then to January 10, 2008, and then again to February 7 while counsel reviewed
    disclosure.

[4]

In the meantime, counsel for the appellant wrote to Crown counsel to
    point out that the appellants statement to the police, the stores
    surveillance tapes, a witness statement and notes from six police officers were
    missing from the disclosure. The case was adjourned to March 6, 2008. By that
    time the DVD of the appellants statement was available. Although the other
    disclosure was still outstanding, counsel asked to set a date for a judicial
    pre-trial. The judicial pre-trial was set for April 8, 2008. By that time some
    more disclosure was made. The remaining disclosure was not completed until July
    2008.

The Preliminary Inquiry

[5]

Following the judicial pre-trial on April 8, 2008, the preliminary
    inquiry was set for June 22 to 25, 2009. However, the appellant continued to
    appear in court to attempt to obtain the remaining disclosure. At one point, on
    July 25, 2008, the presiding judge suggested that earlier dates for the
    preliminary inquiry might be available. The case was adjourned to August 8,
    2008, in order to follow up on this possibility. On August 8, the trial
    co-ordinator confirmed that there were no earlier dates.

[6]

According to the Agreed Statement of Facts filed on the application, the
    appellant appeared on several occasions in May and June 2009 because of a
    retainer issue between Legal Aid Ontario and the appellant. At one point,
    counsel made an application to be removed from the record or, in the
    alternative, have the court make an appointment of counsel. The issue was
    resolved when, following an order from a judge of the Ontario Court of Justice,
    Legal Aid Ontario reinstated the appellants legal aid coverage. According to
    the Agreed Statement of Facts, counsel agreed that transcripts of the
    appearances in May and June 2009 were not required for argument of the s. 11(b)
    application.

[7]

The appellant and his co-accused were ordered to stand trial on June 25,
    2009.

The Appearances in the Superior
    Court of Justice

[8]

The appellant first appeared in the Superior Court of Justice on July
    30, 2009, at which time his bail conditions were varied from house arrest to a
    curfew from 9:00 p.m. to 6:00 a.m. After several remands, the trial was set for
    March 1, 2010, which was the first available trial date. The s. 11(b)
    application was heard and dismissed on February 26, 2010. In the Agreed
    Statement of Facts, counsel agreed that the various transcripts of proceedings
    in the Superior Court of Justice were not required. Before the application
    judge, Crown counsel, not Mr. Latimer, agreed that the delay from September 22,
    2009 to March 1, 2010 was institutional delay.

Evidence of Actual Prejudice

[9]

The appellant filed an affidavit and was cross-examined by Crown
    counsel. He was 20 years of age at the time of his arrest. Although he abided
    by the terms of his bail, he was stopped by the police three times and
    threatened with arrest for breaching the house arrest conditions, until the
    police checked with his sureties who confirmed that he was out for work
    purposes. He became afraid of leaving the house and dropped out of his college
    program. He lost his employment, in part because he missed many days to attend
    court. His house arrest also interfered with his relationship with his friends
    and extended family.

THE REASONS OF THE APPLICATION
    JUDGE

[10]

The application judge attributed the period from April 5, 2007 to
    November 1, 2007 (7 months) as the intake period, given that the Crown was
    required to provide substantial disclosure. He then looked at the delay caused
    by problems with disclosure. He attributed only January 6, 2008 to March 6,
    2008 as delay caused by the Crown due to disclosure problems. The earlier
    period from November 2007 to January 2008 was neutral. The period from March 6,
    2008 to April 8, 2008 to schedule the judicial pre-trial was reasonable and
    neutral. The period from June 25, 2009 to September 22, 2009 was a reasonable
    intake period in the Superior Court. The period from September 22, 2009 to March
    1, 2010, plus 28 days for the trial itself, was institutional delay. Counsel
    for the appellant properly concedes that the application judge erred in
    categorizing the 28 days for the trial as institutional delay. Deducting this
    amount, the application judge attributed 22 months to institutional or Crown
    delay.

[11]

The
    application judge dealt with prejudice in the following manner. He noted that
    the appellant appeared numerous times in the Ontario Court of Justice but this
    was due to retainer problems. Had there not been such problems, the appellant
    could have appeared by designation. These retainer problems were not the fault
    of the Crown. As well, the appellant did not attempt to change his bail
    conditions until he was ordered to stand trial. The appellants right to a fair
    trial was not prejudiced by the delay. As to security of the person, the
    application judge simply noted that the appellant had been stopped by the
    police three times. He considered that restrictions on seeing friends and
    family were imposed by his own family, not the courts, and could not be
    attributed to the Crown.

[12]

The
    application judge concluded by stating that in balancing all the factors he had
    to bear in mind that a stay of proceedings is an extraordinary remedy. There
    was a genuine public interest in having serious charges tried on their merits.
    Balancing all of these factors, it was not appropriate to stay the charges.

ANALYSIS

[13]

The
    appellant submits that the application judge erred in three respects:

·

He overestimated the intake period in the Ontario Court of
    Justice;

·

He failed to give any weight to inferred prejudice from the
    delay; and

·

He applied the wrong test for when to grant a stay of
    proceedings.

The Intake Period and Institutional Delay

[14]

The
    application judge held that an appropriate intake period was from April 2007 to
    November 2007, a period of seven months. The appellant disputes this
    attribution and submits that less than two months should be considered delay
    due to intake, with the balance as Crown delay. The application judge
    considered the further period from November 2007 to April 2008 as partly
    attributable to Crown delay due to disclosure problems (two months), with the
    other three months as inherent (neutral) delay. The appellant does not quarrel with
    the application judges attribution of this delay. The application judge
    categorized the period from April 2008 to June 2009, when the preliminary
    inquiry began, as institutional delay. The appellant agrees with this. On
    appeal, Crown counsel submits that some of this 14 months should be considered
    neutral as part of the inherent time requirements of the case.

[15]

I
    agree with the appellant that the trial judge erred in his categorization of
    the time in the Ontario Court of Justice. In effect, the application judge
    attributed ten months to either intake or inherent time requirements of the
    case. However, the record shows that most of this delay was due to police/Crown
    failure to make prompt disclosure to the appellant and his co-accused. Even accepting
    that the case had some complexity given that there were two accused, ten months
    for intake is unreasonable. This delay is almost wholly explained by the delay
    in making disclosure, yet the application judge only attributed two months of
    the period from April 2007 to April 2008, when a date was finally set for the
    preliminary inquiry, to Crown delay. The record shows an inattention to
    disclosure requirements right up to April 2008, with significant pieces of
    disclosure such as the DVD of the appellants statement to police, the video
    tape from the surveillance and the notes from several officers remaining
    outstanding until then. Other officers notes, as well as a witness statement,
    remained outstanding until July 2008. On the other hand, appellants counsel
    made prompt and repeated requests for disclosure and finally agreed to conduct
    the judicial pre-trial and set the dates for the preliminary inquiry in April
    2008, notwithstanding that some of the disclosure remained outstanding. The
    disclosure that remained outstanding for most of this period was not insignificant
    or peripheral; it represented an important part of the Crowns case.

[16]

There
    is no fixed or usual period of intake: see
R. v. Morin
, [1992] 1 S.C.R.
    771, at pp. 792-93. However, in this case, there was no need for an extended
    intake period. The appellant had retained counsel within days of his arrest on
    April 5, 2007 and that counsel represented him on his bail hearing held on
    April 13, 2007. The appellant attended court on May 4 and 25, 2007, but no
    disclosure was forthcoming. Counsel made a written request for disclosure on
    May 31, 2007. The record contains three more letters thereafter from counsel
    seeking disclosure. After initial disclosure was made there were further
    letters seeking specific items missing from the disclosure. There was usually
    no response to defence counsels letters. Counsel also informed the presiding judicial
    officer at various adjournments that disclosure was missing. Other than the
    submission that the case involved substantial disclosure, there is no
    explanation on the record for the very lengthy delay in making disclosure for
    what would seem to be a straightforward case: the robbery of a video games
    store.

[17]

Given
    that state of the record, it was unreasonable to attribute most of the time to
    intake or neutral time and only two months to Crown delay. Most of it was Crown
    delay and should have been so categorized. Of the 12 months from April 2007 to
    April 2008, I would categorize only five months as neutral or part of the
    inherent time requirements of the case. The balance of seven months together
    with the institutional delay from April 2008 to June 2009 represents 21 months
    of either institutional or Crown delay in the Ontario Court of Justice, a
    period far exceeding what is reasonable for this kind of case.

[18]

However,
    for the first time on appeal, Crown counsel submits that some of the 14 months
    from April 2008 (when the date for the preliminary inquiry was set) to June
    2009 (when the preliminary inquiry began) should be categorized as neutral. He
    submits that this is not all institutional delay because during this time there
    were problems with the appellants legal aid status that had to be resolved. As
    well, counsel at trial failed to establish that the appellant was ready to
    conduct the preliminary inquiry at any time during this 14-month period, and
    the delay was solely because the court was unable to accommodate an earlier
    date for the preliminary inquiry. The Crown relied on this courts decision in
R.
    v. Tran
, 2012 ONCA 18, 287 O.A.C. 94.

[19]

In
Tran
this court made several important points at paragraphs 31 to 40
    of the reasons. First, the court is not bound by an erroneous concession by
    Crown counsel in allocating periods of delay. Second, defence counsel should
    put on the record their first available dates to conduct the judicial pre-trial
    and the preliminary inquiry or trial, as the case may be. If counsel does not
    do this, it may be impossible to determine how the delay should be allocated.
    Especially where there is more than one counsel involved, it should not be
    assumed that counsel can clear their calendars and co-ordinate their schedules
    so as to be ready within a few months of the judicial pre-trial. Further, the
    time necessary for counsel to prepare for the preliminary inquiry or trial must
    be taken into consideration as part of the inherent time requirements of the
    case. In setting down these guidelines, this court found persuasive the reasons
    of Code J. in
R. v. Lahiry
, 2011
    ONSC 6780, 109 O.R. (3d) 187,
at paras. 25-37. As Code J. noted at para.
    26, systemic or institutional delay only starts to run when the parties are
    ready for trial but the system cannot accommodate them.

[20]

In
    accordance with
Tran
, time must be allowed for defence counsel to
    prepare. The record discloses defence counsel indicated that she required
    approximately five weeks from when she obtained the first box of disclosure to
    prepare for the judicial pre-trial. There was also a delay by defence counsel
    in collecting the initial disclosure, apparently because of a breakdown in
    communications. Allowing eight weeks for preparation as neutral or part of the
    inherent requirements of the case is reasonable. Any further delay is
    attributable not to time to prepare, but to continuing problems with disclosure
    that prevented counsel from completing the statement of issues for the
    preliminary inquiry and proceeding with the judicial pre-trial. Eventually
    counsel proceeded with the judicial pre-trial and set the date for the
    preliminary inquiry, even though some disclosure was still outstanding.

[21]

I
    would not accede to Crown counsels submission that this court should revisit
    trial Crown counsels concession that the entire period from April 8, 2008 to
    June 22, 2009 should be categorized as institutional delay. Mr. Latimers
    submission is principally anchored in the fact that defence counsel at trial
    never put her first available dates for the preliminary inquiry on the record.
    However, we do not have the entire record because counsel agreed to proceed on
    the application by way of an agreed statement of facts. What is known is that
    the transcript of April 8, 2008 indicates that counsel informed the presiding
    judge that they had obtained the first available dates for the preliminary
    inquiry and that 11(b) is an obvious concern. Further, at court appearances
    in late July and early August 2008, at the request of the presiding judge,
    attempts were made to obtain an earlier date for the preliminary inquiry. The
    transcript of August 8, 2008 shows counsel for the co-accused informing the
    presiding judge that there were no earlier dates. Crown counsel did not
    dispute this statement. There is nothing on the record to show that the lack of
    earlier dates was due to the unavailability of counsel, as opposed to a lack of
    institutional resources.

[22]

As
    to the continuing retainer problems that the appellant was having because of
    difficulties with legal aid, again, counsel at trial agreed to proceed by way
    of an agreed statement of facts rather than obtain the transcripts relating to
    this issue. What the record does reveal is that defence counsel remained on the
    record throughout and that the legal aid issues were not causing delay. As
    counsel said on April 8, 2008:

I have been appearing on the record, I am still appearing on
    the record. Whether or not I get retained, I am still on the record and I am
    prepared to set the date today whether or not I am retained. I just want to
    make that clear, and the matter has not been slowed down at all because of my
    lack of retainer.

[23]

In
    my view, given this state of the record, it is not open to Crown counsel to ask
    for the first time on appeal that the April 2008 to June 2009 period not be
    characterized as institutional delay. On this record the respondent Crown has
    not shown that trial Crown counsel made an erroneous concession in agreeing
    that this entire period was institutional delay.

[24]

To
    summarize, of the period from the arrest on April 5, 2007 to July 30, 2009,
    when the appellant first appeared in the Superior Court of Justice, 21 months
    is attributable to institutional or Crown delay. The remaining seven months are
    either intake, time to prepare or the inherent time requirements of the case
    and are neutral.

[25]

Of
    the time in the Superior Court of Justice from July 30, 2009 to March 1, 2010
    (the date for the trial to begin), approximately five months is institutional
    delay. There was no contest before the application judge that March 1, 2010 was
    the first available date for the trial.

[26]

Thus,
    26 months of the almost three years to bring the appellant to trial are
    properly characterized as institutional or Crown delay.

Prejudice

[27]

The
    trial judge placed minimal weight on actual prejudice. He noted that the
    appellant did not attempt to vary his strict bail conditions until he was
    ordered to stand trial and that the repeated court appearances were because the
    appellant had not provided a designation to have counsel appear on his behalf.
    These findings were available on this record.

[28]

Where
    the application judge erred, in my view, was in failing to consider the
    inferred prejudice from the delay. As the Supreme Court of Canada said in
R.
    v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, at paras. 31 and 34:

The question of prejudice cannot be considered separately from
    the length of the delay. As Sopinka J. wrote in
Morin
, at p. 801,
even
    in the absence of specific evidence of prejudice, prejudice may be inferred
    from the length of the delay. The longer the delay the more likely that such an
    inference will be drawn
. Here, the delay exceeded the ordinary guidelines
    by a year or more, even though the case was straightforward.

....

The majority of the Court [of] Appeal acknowledged that these
    charges had been hanging over the appellants head for a long time.
It was
    reasonable, in my view, to infer as the trial judge did that the prolonged
    exposure to criminal proceedings resulting from the delay gave rise to some
    prejudice
. The majority of the Court of Appeal appears to have given no
    weight to this consideration. [Emphasis added.]

[29]

While
    the application judge dealt with actual prejudice, he erred in failing to give
    any weight to inferred prejudice.

The Remedy

[30]

In
    balancing the factors, the application judge stated that a stay of proceedings
    is an extraordinary remedy. In
R. v. Thomson
, 2009 ONCA 771, 248
    C.C.C. (3d) 477, at para. 5, although the trial judge found a lengthy
    unexplained delay, he refused to stay the proceedings because a stay is a
    drastic remedy that should be confined to the clearest of cases. He also
    stated that the court must be satisfied that a fair hearing can no longer be
    had in light of the delay. As this court explained at para. 9 of
Thomson
,
    that was an erroneous approach because a stay of proceedings is the minimal
    remedy for a breach of the right to trial within a reasonable time. It is not
    the remedy of last resort reserved for the clearest of cases.

[31]

The
    proper test was identified by this court in
Thomson
, at para. 25,
by reference to McLachlin
    J.s concurring reasons in
Morin
at p. 810: In the final analysis the
    judge, before staying charges, must be satisfied that the interest of the
    accused and society in a prompt trial outweighs the interest of society in
    bringing the accused to trial. As Arbour J.A. pointed out in
R. v. Bennett
(1991), 3 O.R. (3d) 193 (C.A.) at 206, at common law and under the
Charter
,
    outside the s. 11(b) context a stay of proceedings is a discretionary remedy to
    be granted sparingly. But for a s. 11(b) violation a stay of proceedings is the
    minimum remedy. As Lamer J. explained in
R. v. Rahey
, [1987] 1 S.C.R.
    588 at 614: After the passage of an unreasonable period of time, no trial, not
    even the fairest possible trial, is permissible.

[32]

The
    application judges reasons balancing the various factors are as follows:

In balancing all of the factors, I should also bear in mind
    that a stay of proceedings is an extraordinary remedy. There is a genuine
    public interest in having serious charges tried on their merits. In my view,
    when all of these factors are balanced, it is not appropriate to stay the
    charges and I decline to do so.

[33]

Thus,
    the application judge did not make the error of reserving a stay of proceedings
    to the clearest of cases. But it was an error to describe the stay as an
    extraordinary remedy. Further, because he failed to take into account inferred
    prejudice, his balancing was unreasonably skewed in favour of the genuine public
    interest in a trial on the merits.

Conclusion

[34]

In
Morin
at p. 799, the court suggested a period of institutional delay
    in the Ontario Court of Justice of 8 to 10 months, and 6 to 8 months after
    committal for trial. In this case there is a combined institutional and Crown
    delay in the Ontario Court of Justice and the Superior Court of Justice of 26
    months, a period in excess of the upper end of the acceptable institutional
    delay (18 months). Balancing the various factors, especially the fact that a
    significant portion of the delay is attributable to the Crown because of
    disclosure problems, the delay was unreasonable. The seriousness of the offence
    and the interest in a trial on the merits do not outweigh the other factors,
    including the inferred prejudice to the appellant from the 35 months it took to
    bring him to trial.

[35]

In
Godin
, there was a delay of 30 months to bring the accused to trial on
    serious offences including sexual assault, unlawful confinement and death
    threats. Virtually all the delay was attributable to the Crown or institutional
    delay. Justice Cromwell described this delay as striking and, in words that
    also apply to this case, he said at para. 41:

Of course, there is a strong societal interest in having
    serious charges tried on their merits. However, the progress of this case was
    delayed to such a degree that the appellants constitutional right to be tried
    within a reasonable time was violated.

[36]

In
    this case it took 35 months to bring the appellant to trial and virtually all
    of that delay, as in
Godin
, is attributable to the Crown or
    institutional delay. Given the length of the delay and the explanation for it,
    a stay of proceedings is the only appropriate remedy.

DISPOSITION

[37]

Accordingly, I would allow the appeal, set aside the convictions, and
    enter a stay of the proceedings.

Signed:        M. Rosenberg J.A.

I agree Robert P. Armstrong
    J.A.

I agree H.S. LaForme J.A.

Released: MR JUNE 7, 2012


