



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boateng, 2015 ONCA 857

DATE: 20151208

DOCKET: C57429

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ernest Boateng

Appellant

John Norris and Meara Conway, for the appellant

Brendan Gluckman, for the respondent

Heard:  November 10, 2015

On appeal from the conviction entered on October 2, 2012
    by the Honourable Justice Bruce Durno of the Superior Court of Justice.

Doherty J.A.:


I



overview

[1]

The appellant was arrested at Pearson International Airport on July 24,
    2010 and charged with importing a narcotic into Canada.  The authorities had
    discovered 2.38 kilograms of heroin secreted in the false bottom of the appellants
    suitcase.  On August 17, 2012, the appellant brought an application to stay the
    prosecution, claiming that his right to a trial within a reasonable time under
    s. 11(b) of the
Charter
had been infringed.  The application was
    dismissed.  On October 2, 2012, the appellant was convicted on the basis of an
    agreed statement of facts that effectively conceded the appellants guilt.  On
    February 1, 2013, the appellant was sentenced to 12 years imprisonment, less
    credit for pretrial custody.

[2]

The appellant appeals his conviction, contending that the application
    judge erred in dismissing his s. 11(b) application.

[3]

The argument on appeal, like the argument on the s. 11(b) application,
    focused on the delay caused by the procedural steps necessary to allow the
    appellant to retain counsel of choice.  The appellant argues that the 15½ months
    attributed to those steps by the application judge were caused by the
    unreasonable refusal of Legal Aid Ontario (LAO) to transfer the appellants
    Legal Aid certificate to new counsel and were exacerbated by the courts
    failure to grant the appellants first 
Rowbotham
 application.  The
    appellant submits that the resulting delay should be characterized as either
    institutional or Crown delay.  The appellant contends that a proper
    characterization of the 15½ months as institutional or Crown delay makes the
    total delay of some 26 months unreasonable and breaches the appellants
    constitutional right to be tried within a reasonable time.

[4]

At the end of oral argument, the court advised counsel that the appeal
    was dismissed with reasons to follow.  These are those reasons.


II



the timeline

[5]

The appellant was arrested on July 24, 2010.  He quickly obtained a
    Legal Aid certificate and retained counsel.  By mid to late August 2010, his
    relationship with that lawyer had broken down.  The appellant asked Legal Aid
    to transfer the Legal Aid certificate from the first lawyer to Mr. Norris. 
    Legal Aid refused, citing a policy applicable to requests to transfer certificates. 
    The appellant, with Mr. Norriss assistance, appealed that decision through
    Legal Aids internal appeal processes.  Two appeals were taken.  Both failed.  The
    internal appeals had been exhausted by the end of November 2010.

[6]

Mr. Norris quickly launched a 
Rowbotham
 application seeking
    an order staying the prosecution conditionally until the appellant had
    counsel.  Wein J. heard the application on January 28, 2011 and dismissed it on
    February 15, 2011.  In her reasons, Wein J. gave the appellant 30 days to file
    additional material addressing the evidentiary deficiencies she had identified
    in her reasons for rejecting the 
Rowbotham
 application.  On March 7,
    2011, the appellant advised the court that he would not submit further material.

[7]

After the unsuccessful 
Rowbotham
 application, the appellant
    made several appearances in the Ontario Court of Justice between March 7 and
    August 17, 2011.  The appellant was unrepresented but did have the assistance
    of duty counsel on some appearances.  In his appearances in the Ontario Court
    of Justice, the appellant made it clear that he wanted counsel.  The Crown
    acknowledged that representation by counsel at trial was necessary for the
    appellant to obtain a fair trial.  It is fair to say that attempts to provide
    the appellant with some form of legal assistance precipitated some of the
    adjournments in the Ontario Court of Justice.

[8]

There was also some delay occasioned in the Ontario Court of Justice by
    efforts to provide the appellant with the necessary disclosure.  Mr. Norris had
    been provided with disclosure, but had returned it after he could not be
    retained by the appellant.  Disclosure was made more difficult, both because
    the appellant was self-represented and because he was in custody and unable to
    keep the disclosure with him while in his cell.  The appellant consented to his
    committal for trial on August 17, 2011.  Some disclosure-related issues
    remained outstanding.

[9]

The appellant made his first appearance in the Superior
    Court of Justice on September 2, 2011, about two weeks after his committal for
    trial.  Mr. Norris launched a second 
Rowbotham
 application on
    September 16, 2011.  That
application was
    heard by Wein J. on October 24, 2011 and granted on November 9, 2011.  By
    December 2
nd
, the federal Crown had provided the necessary funding
    and the appellant had retained Mr. Norris.  Various disclosure-related
    procedures were undertaken by Mr. Norris and the Crown between December 2
nd
and January 17, 2012.

[10]

The parties were prepared
    to set a date for trial on January 17, 2012.  The court offered a trial date of
    April 10, 2012.  Mr. Norris indicated that he may not be available on the April
    date and suggested May 22, 2012.  That date was fixed for trial and the defence
    acknowledged that it had waived the six weeks between April 10 and May 22.  In
    early May, the defence requested a further adjournment to obtain transcripts
    that inadvertently had not been ordered.  The trial was adjourned to October 1,
    2012.  The s. 11(b) application proceeded on August 17, 2012.


III



the reasons of the application judge

[11]

After reviewing the chronology and setting out the relevant
    legal principles, the application judge focussed on the delays caused by the
    appellants efforts to obtain counsel of choice.  She concluded that the entire
    15½ month period from the arrest in July 2010 to the successful second 
Rowbotham
 application in November 2011 was attributable to the
    appellants efforts to obtain counsel (para. 37).  She rejected the submission
    that the delays should be attributed to the Crown or characterized as
    institutional delay.  Instead, she treated the 15½ months as time the appellant
    required to retain counsel and therefore part of the inherent time requirements
    of the case (paras. 37, 40).  Inherent time requirements are neutral in the s.
    11(b) calculation.

[12]

The application judge
    did not address the time period between the retaining of counsel in December
    2011 and the ultimate trial date of October 1, 2012 in any detail.  She did
    observe, however, that once counsel was retained the matter proceeded to trial
    without undue delay (para. 38).

[13]

The application judge
    also considered any prejudice to the appellant flowing from the delay.  She
    held that the delay had caused no prejudice to the appellants fair trial
    rights.  That finding is not challenged in light of the appellants virtual
    admission of the case against him when the matter went to trial.  The
    application judge also held that any prejudice to the appellants liberty and
    security interests while awaiting trial were counterbalanced by the benefit he
    gained by obtaining counsel of choice to represent him.  She held, at para. 40:

While the applicant is not faulted for delays occasioned for
    the purpose of seeking counsel, he should also not be permitted to claim
    prejudice for delays caused for his own benefit as a result of his own
    decisions.


IV



the section 11(b) claim

(i)

Delays in obtaining counsel

[14]

Mr.
    Norriss forceful submissions focus on the delays attributable to the
    appellants efforts to retain counsel of choice.  He accepts that time required
    to retain and instruct counsel is treated as part of the inherent time
    requirements needed to bring a criminal case to trial and is treated as neutral
    for the purposes of s. 11(b):
R. v. Morin
, [1992] 1 S.C.R. 771, at
pp. 792-793
;
R. v. Qureshi
(2004)
, 190 C.C.C. (3d) 453, at para. 33
    (Ont. C.A.).  He also accepts that retaining counsel can be more complicated in
    some cases than in others.  If there are complications, it will take more time
    to retain counsel.  That added time will also be treated as part of the
    inherent time requirements of the case:
R. v. MacDougall
, [1998] 3
    S.C.R. 45 at para. 45;
R. v. M.(N.N.)
(2006)
, 209 C.C.C. (3d) 436, at para. 14.  On that approach, Mr.
    Norris submits that the appellants request to transfer his Legal Aid
    certificate to a second lawyer added some small amount of time, at most a few
    weeks, to the inherent time requirements of the case.

[15]

Mr.
    Norris argues, however, that the delay caused in this case had nothing to do
    with the time needed to accommodate the appellants request to transfer the
    Legal Aid certificate.  He maintains that what should have been a
    straightforward, quick process transferring the certificate to the new lawyer became
    a prolonged, multi-step, legal battle because of LAOs arbitrary and
    unreasonable refusal to transfer the certificate.  He argues that LAO had no
    business refusing the appellants reasonable request to transfer the
    certificate and that delays caused by that unreasonable refusal must count
    either against the Crown or as institutional delay for the purposes of the s.
    11(b) analysis.

[16]

This
    argument can succeed only if counsel can persuade the court first, that a
    review of the reasonableness of the conduct of LAO is part of the s. 11(b),
    inquiry, and second, that LAOs conduct was unreasonable.  The second of the
    two inquiries is fact-specific and straightforward in this case.  I will begin
    there.

[17]

There
    is no evidence in this record that would permit an assessment of the
    reasonableness of LAOs refusal to transfer the appellants Legal Aid certificate. 
    Mr. Norris argues that the facts speak for themselves.  He contends that there
    can be no possible reasonable justification for LAOs refusal to transfer the
    certificate to a second lawyer within a few weeks of issuing the certificate.

[18]

What
    counsel describes as an irresistible inference, is in reality an assumption
    about explanations offered to LAO for the requested transfer and LAOs
    explanation for refusing the transfer.  The appellant alleged that LAO acted
    unreasonably.  He had the onus of demonstrating unreasonableness.  For whatever
    reason, the appellant chose not to lead evidence on this issue.  For example,
    apart from indicating that LAO had a policy concerning the transfer of Legal
    Aid certificates, the evidentiary record says nothing about the substance of the
    policy.  Even if, as counsel suggests, leading evidence may have compromised
    the appellants solicitor/client privilege with his first lawyer, the absence
    of evidence cannot justify assumptions about what the evidence might have shown.

[19]

The
    application judge may have gone too far in inferring, in the absence of
    evidence to the contrary, that LAOs conduct was based on sound and
    justifiable considerations (para. 34).  However, she did not err in declining
    to assume in the absence of evidence that LAOs conduct was unreasonable.

[20]

I
    am satisfied that even if the application judge was required to examine the
    reasonableness of LAOs conduct as part of her s. 11(b) analysis, the appellant
    failed to demonstrate that LAO acted unreasonably.  I could stop here.  I will,
    however, address the broader question of whether the reasonableness of LAOs
    decision is reviewable on a s. 11(b) application.

[21]

Section
    11(b) protects the rights of an accused to liberty, security of the person and
    a fair trial by requiring that the accused be brought to trial within a
    reasonable time.  The analysis required by s. 11(b) looks to the overall delay
    between the charge and the trial.  It considers the reasons for various parts
    of the delay, characterizes the delay as defence delay, Crown delay,
    institutional/systemic delay, or neutral/inherent delay. Finally, the analysis considers
    the prejudice caused to the accused by the delay.  Ultimately, the court will
    decide whether having regard to the total delay, the attributions of the
    various periods of delay, the prejudice to the accused, and the societal
    interest in a trial on the merits the overall delay was unreasonable.  The
    inquiry is clearly fact-specific and focuses on the timeline of each individual
    case and the explanations for the delays revealed in the timeline:  see
R.
    v. Morin
, at pp. 787-788;
R. v. Godin
, 2009 SCC 26, [2009] 2
    S.C.R. 3, at para. 18;
R. v. Schertzer
, 2009 ONCA 742, 248 C.C.C. (3d)
    270, at para. 5;
R. v. Lahiry
, 2011 ONSC 6780, 283 C.C.C. (3d) 525 at
    paras. 3-9.

[22]

Applying the s. 11(b) analysis to this case, the appellants
    attempts to retain counsel of choice stalled the progress of the prosecution
    from his arrest in late July 2010 through to early March 2011 when the
    appellant declined to file further material on the first 
Rowbotham

    application.  Further efforts to retain counsel, again stalled the proceedings between
    early September 2011 when the second 
Rowbotham
 application was made and
    December 2011 when that application was granted and Mr. Norris was retained
.  On my calculation, about 10½ months elapsed while
    the appellant made efforts to retain counsel, initially by way of his
    application for Legal Aid, followed by his attempt to transfer his certificate
    to Mr. Norris, followed by two internal appeals, and finally by two 
Rowbotham
 applications.
[1]


[23]

As indicated above, the
    appellant accepts that time needed to retain counsel is part of the inherent
    time requirements of the case.  He also accepts that the task of retaining
    counsel can be more complex in some cases than in others and that added
    complexity will add to the inherent time required to retain counsel.  Counsels
    submission must come down to this.  If LAO makes a decision that adds
    complexity and hence delay to the process through which the appellant eventually
    retains counsel, the time needed to go through the process will be treated as
    part of the inherent time requirements of the case unless the court is
    satisfied that LAOs decision was unreasonable in which case the same delay
    will become institutional delay.

[24]

On this approach, the
    ultimate characterization of the delay will depend in part on the application
    judges assessment of the merits of decisions taken by LAO and presumably the
    merits of the policies that drive those decisions.  This approach refocuses the
    s. 11(b) inquiry from the timeline of the case and the delays revealed by that
    timeline, to a consideration of the reasonableness of LAOs response to the
    appellants efforts to obtain counsel of choice.

[25]

The approach urged by the appellant is inconsistent
    with this courts decision in
R. v. Peterman
, 70 O.R. (3d)
    481 (C.A.).  In
Peterman
, an application judge had made a 
Fisher

    order directing that the appellant be represented by a named counsel and junior
    counsel and ordering that counsels fees and various specified expenses be paid
    by LAO or the Ministry of the Attorney General.  The application judge stayed
    the criminal proceedings pending compliance with her order.

[26]

In
    holding that the application judge had erred in making the order, Rosenberg
    J.A. said, at para. 25:

In considering these issues, the application judge was again,
    not entitled to review the reasonableness of the decisions made by Legal Aid. 
    Her focus had to be on whether the respondents right to a fair trial was imperilled
    because of the conditions under which he was being defended.

[27]

As
    my late colleague so often did, he captures a key point in very few words.  The
    application judge in
Peterman
was charged with determining whether the
    accused could get a fair trial without a lawyer.  The reasonableness of LAOs
    decisions in respect of his representation was irrelevant to that question. 
    Whether LAO had reasonably or unreasonably imposed the restrictions it did, the
    question remained  could the accused get a fair trial without a lawyer?

[28]

Whether
    reasonable or unreasonable, LAOs decisions do not alter the explanation for
    the relevant part of the delay or the length of the delay.  The appellant
    wanted to retain Mr. Norris.  As it turned out, in order to retain Mr. Norris the
    appellant had to take several procedural steps, beginning with a request to
    transfer the LAO certificate, followed by two appeals from the refusal to
    transfer the certificate, followed by two 
Rowbotham
 applications.  Regardless
    of the reasonableness of LAOs decisions, the same delay occasioned by these
    procedural steps would have occurred and was necessary so that the appellant
    could obtain his counsel of choice.

[29]

The
    appellants argument really goes beyond a claim that LAO acted unreasonably. 
    He seeks to have an application judge, hearing a s. 11(b) application sit in
de
    facto
appeal from the decisions made by LAO.  The appellant would have the
    court pass upon the correctness of LAOs decisions, consider the time that
    would have been required for the appellant to retain counsel had LAO made the
    correct decision, and treat the rest of the time actually required to retain
    counsel as institutional delay.

[30]

LAO
    operates under a statutory mandate.  It must make a variety of decisions in respect
    of applications to publicly fund counsel for accused.  Those decisions, including
    decisions about transferring certificates, will involve a variety of
    considerations, including fiscal ones.  The Legislature decides when, by whom,
    and on what grounds LAOs decisions can be reviewed.  A criminal court sitting
    on a s. 11(b) application has neither the statutory authority, nor the
    institutional capability to properly assess the correctness of LAOs decisions
    or the policies reflected in those decisions.

[31]

In
    holding that the reasonableness, much less the correctness, of LAOs decisions
    are not relevant on a s. 11(b) application, I do not mean to suggest that delays
    by LAO in considering and determining issues in relation to Legal Aid
    applications will never impact on the s. 11(b) analysis.  If, based on the
    evidence in a specific case, an application judge determines that LAO has not
    acted in a timely fashion in rendering or implementing decisions pertaining to counsel,
    the delays caused by LAOs failure to act in a timely fashion would not fall
    into inherent time requirements of the case.  Assuming the necessary evidence was
    before the application judge, she could characterize delay beyond that
    reasonably required for LAO to make the relevant decisions as delay
    attributable to other reasons.  As explained in
Morin
, at p. 800,
    those delays can ultimately count against the Crown:

An investigation of unreasonable delay must take into account
all
reasons for the delay in an attempt to delineate what is truly
    reasonable for the case before the court.  One such factor which does not fit
    particularly well into any other category of delay is that of actions by trial
    judges.  An extreme example is provided by Rahey, [citation omitted].  In that
    case it was the trial court judge who caused a substantial amount of the delay
     Such delay is not institutional in the strict sense.  Nevertheless such delay
    cannot be relied on by the Crown to justify the period under consideration
    [emphasis in original].

[32]

The
    Crown bears the responsibility of bringing an accused to trial within a
    reasonable time:
R. v. Godin
, at para. 11;
R. v. Morin
, at pp.
    801-802.  As the prosecutor, the Crown is best positioned to spot and react to
    potential delay-related problems caused when an institutional participant in
    the criminal justice system, like LAO, drags its feet and places the rights
    protected under s. 11(b) in jeopardy.  If the Crown fails to react to these
    delays, it will bear responsibility for them in the s. 11(b) calculus.  That
    responsibility exists regardless of whether LAO is classified as part of the government
    or the prosecution:  see
R. v. Neil
, 2001 ABQB 474, at paras. 50-60;
R.
    v. Chang
, [2005] O.J. No. 4381 (S.C.); see also
R. v. Dow
, 2012
    MBQB 122, at paras. 35-47.
[2]

[33]

There is no suggestion here that LAO did not make the
    decisions it had to make in a timely fashion.  The trial judge correctly held
    that the time spent requesting the transfer of the certificate, challenging the
    refusal to transfer the certificate, and the 
Rowbotham
 applications were properly attributable to the
    appellants efforts to obtain counsel and therefore a part of the inherent time
    requirements of the case.

[34]

In oral argument, Mr.
    Norris focussed on the reasonableness of the decisions of LAO.  In his factum,
    however, he made a similar argument aimed at the reasons of the application
    judge on the first 
Rowbotham
 application. He contended that the application judge fell into
    several errors, including using the appellants refusal to waive client/solicitor
    privilege as a basis for dismissing the application.  He argued that on a
    proper application of the 
Rowbotham
 principles, the application judge should have
    appointed counsel on the first application, thereby avoiding the delay between
    March 2011 and December 2011.

[35]

For the same reason that
    a s. 11(b) application is not the place to review the merits of decisions of
    LAO, it is also not the forum in which to conduct a collateral attack on a decision
    made on a 
Rowbotham

    application.  The correctness of the decision on the first 
Rowbotham
 application was irrelevant to the outcome of the s.
    11(b) application.

[36]

The 
Rowbotham
 applications were decided in a timely fashion.  The
    application judges willingness on the first 
Rowbotham
 application to receive additional material directed
    at the deficiencies she had highlighted in her reasons indicates that she was
    sensitive to the delays being caused by the appellants efforts to retain
    counsel of choice.  The appellant, as he was entitled to do, declined the
    application judges invitation to provide her with further material.

(ii)

The other time periods

[37]

I turn to the time
    periods other than the time attributable to the appellants efforts to obtain
    counsel.  Little was said in argument about these time periods and little need
    be said here.  There are two time periods:

·

March 2011  August 2011;
    and

·

December 2011  October 2012.

[38]

Between
    March 2011 and August 2011, the case was in the Ontario Court of Justice.  The
    appellant was unrepresented.  Efforts were being made to provide legal
    assistance to the appellant while at the same time providing him with the
    disclosure that had previously been provided to counsel when it was anticipated
    that counsel would be acting for the appellant.  The record does not warrant,
    nor do the circumstances require, an appearance-by-appearance assignment of
    responsibility for the various segments of the March to August time period.  To
    some extent the case spun its wheels while efforts were made to sort out the problems
    associated with the appellant obtaining counsel.  Putting this part of the cases
    chronology in the best light for the appellant, two of the five months could be
    described as institutional delay.  The rest is inherent delay and therefore
    neutral.

[39]

An
    examination of the time period between November 2011 and October 1, 2012 begins
    with the deduction of the 1½ month period between early April and mid-May
    2012.  That time period was waived by the defence when it requested the May
    trial date.  Of the remaining 9½ months, about five months can be characterized
    as an intake period (December 2011  April 2012).  Two months of that period
    involved disclosure procedures.  The other three months represents the time
    between the date when the parties were prepared to set a trial date and the
    date offered for trial.  The additional four-month delay was occasioned by the
    defence request for a further adjournment from late May 2012 to October 1
st
. 
    The trial judge, charitably, characterized this delay as neutral and also part
    of the inherent time requirements of the case (para. 38).  She could well have
    attributed that delay to the late defence request for an adjournment.

[40]

I
    doubt that any of the 9½ months that the case was in the Superior Court could properly
    be viewed as institutional delay.  Even if a month or two between December 2011
    and April 2012 could be so characterized, the delay falls well within the guidelines
    offered in
Morin
.

(iii)

Prejudice

[41]

There
    is no claim that the appellants right to make full answer and defence or otherwise
    have a fair trial was prejudiced by any delay.  He was, however, denied bail
    and was in custody for the two years between his arrest and his trial date.  Any
    delay in bringing the appellant to trial would inevitably significantly impact
    on his right to liberty.  That negative impact is, however, mitigated by the explanation
    for the delay.  All but perhaps two or three months is attributed to the inherent
    time requirements of the case.  Prejudice to a liberty interest accruing during
    a time period that is part of the inherent time requirements of the case cannot
    justify a finding of a breach of s. 11(b) and the automatic stay of proceedings
    that follows.  Were it otherwise, time said to be part of the inherent time requirements
    of the case can hardly be described as neutral for the purposes of s. 11(b).

[42]

The
    prejudice to the appellants liberty interest factors into the overall s. 11(b)
    mix.  Considered along with the other relevant factors, it does not justify a
    finding that any delay in bringing the appellant to trial fell below
    constitutionally accepted requirements and infringed s. 11(b) of the
Charter
.


V



conclusion

[43]

The
    application judge properly dismissed the s. 11(b) application.  As indicated at
    the end of oral argument, the appeal is dismissed.

Released: DD  DEC 08 2015

Doherty J.A.

I agree John I.
    Laskin J.A.

I agree M. Tulloch
    J.A.





[1]
Unlike the application judge, I would not ascribe the five months between March
    2011 and August 2011 to the appellants efforts to retain counsel.  In my view,
    that time period relates to the steps needed to eventually move the matter
    through the Ontario Court of Justice to committal.  My different attribution of
    that five-month time period has no impact on the result:  see
infra
,
    para. 37.



[2]
My analysis would also support the conclusion that defence foot dragging
    during the Legal Aid process would count against the defence.  Practically
    speaking, on a s. 11(b) application it may make little, if any, difference
    whether delay is treated as neutral or attributed to the defence.


