R. v. A., P.

R. v. A., P. Collection Decisions of the Court of Appeal Date 2002-06-25 Docket numbers C37120 Judges Catzman, Marvin Adrian; Weiler, Karen Merle Magnuson; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 20020625 DOCKET: C37120 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Appellant) –and– P.A. (Respondent) BEFORE: CATZMAN, WEILER and FELDMAN JJ.A. COUNSEL: Joan Barrett, for the appellant Joseph DiLuca, for the respondent HEARD: June 14, 2002 On appeal from a stay of proceedings ordered by Justice W.J. Lloyd Brennan dated September 20, 2001. ENDORSEMENT CATZMAN and WEILER JJ.A.: [1] This is a Crown appealfrom a stay of proceedings ordered on September 20, 2001 on the basis that the twenty-one month delay from the time of the respondent’s arrest to the trial date violated her right to be tried with a reasonable time as guaranteed by s. 11(b) of the Charter. [2] The respondentwas charged with aggravated assault and failing to provide the necessaries of life after her three-month-old child was found to have three skull fractures, twelve rib fractures and a left forearm fracture. [3] While Justice Brennan’s ruling is entitled to deference, we are respectfully of the view that he erred in three respects. [4] The first is with respect to the intake period.He failed to make allowance for the second intake period from December 1, 2000, the date of committal, to February 2, 2001, the date when trial was set in the Superior Court of Justice. [5] The second is that he lay at the feet of the Crown the entire five-month period from April 9, 2001, the date on which the trial was scheduled to commence, to September 17, 2001, the date to which the commencement of the trial was adjourned and on which the application for stay was brought.Having regard to the fact that the Crown and the system could have accommodated a trial date as early as April 23rd, the period after that date until the month of July should not have been counted against the Crown but should, at most, have been regarded as neutral. [6] When these periods are taken into account, the total period falls clearly within the guidelines suggested in Askov and Morin. [7] Finally, the trial judge also erred in concluding that the respondent, “suffer[s] a special and profound prejudice by reason of the continuing bail conditions which affect [her] every conscious moment.”This related to the fact that one of the respondent’s bail conditions restricted access to her daughter.We note that at no time did the respondent apply for a variation of this condition of her bail.It was undisputed that the respondent’s daughter was the subject of child protection proceedings prior to the respondent’s arrest.Accordingly, it is purely speculative to assume that, had the criminal charges been disposed of earlier, the respondent would have had custody or greater access to her daughter.The trial judge overemphasized the special condition to which the respondent was subject.The onus was on the respondent to show prejudice and she should have been required to show how this condition actually prejudiced her in light of the child protection proceedings that had been taken. [8] The prejudice to a person accused of a crime weighs most heavily when that person’s liberty, security or fair trial interest is affected.Here, the respondent was released on bail five days after her arrest.It is not suggested that there is any prejudice arising from the delay in processing the charges.The respondent’s fair trial interests are not otherwise affected. [9] The prejudice suffered by the respondent was outweighed by society’s interest in having a person alleged to have been an abusive parent towards her three-month-old child tried on the merits. [10] Accordingly, the trial judge erred in granting the stay.The appeal is allowed, the stay of proceedings is set aside and the charge against the appellant is remitted to the Superior Court of Justice for trial. Signed: “M.A. Catzman J.A.” “Karen M. Weiler J.A.” FELDMAN J.A. (dissenting): [11] I would uphold the decision of the trial judge staying the charges against the appellant on the basis of a violation of her s. 11(b) right to be tried within a reasonable time. [12] The trial judge heard three days of evidence and argument on the pretrial motion for a stay, following which he gave thorough and careful reasons for his decision to grant the stay of proceedings against the appellant and the co-accused. In my view, the trial judge’s reasons demonstrate that he was aware of all of the factors that must be considered on such a motion, that he weighed all of those factors based on the evidence before him, and that he arrived at a decision to which this court ought to defer. [13] On that motion Crown counsel agreed as a starting point, that the elapsed time of 21 months to the date set for trial required judicial examination of whether there had been a breach of the s. 11(b) Charter right. [14] The trial judge then noted the need for the court to consider the interest of the community in having trials on serious charges proceed, and observed that the charges against the two accused were very serious. He also referred to both the individual and public interest, protected by the Charter in ss. 11(b) and 7, in having trials proceed within a reasonable time. In conducting the balancing exercise, he also expressed the view that other rights must be balanced including the right to counsel of one’s choice. [15] The trial judge also took into account the context in which the motion was brought, which was a child in need of protection. He noted that child protection proceedings were underway in another forum and that a stay of the criminal proceedings would not impair the effectiveness of those proceedings. [16] The trial judge identified the four matters to be considered, as set out by the Supreme Court in Morin: 1) the length of the delay; 2) waiver of time periods by the accused; 3) the reasons for the delay: a) inherent time requirements; b) actions of the accused, including by counsel; c) actions of the Crown; d) limits on institutional resources; e) other reasons for delay; and 4) prejudice to the accused. [17] The Crown conceded both that the length of delay required examination and explanation, and that the accused had sought an early trial date from the outset, had always tried to move the matter forward, and had not waived any delay. [18] On the issue of the reasons for delay, the trial judge did not expressly refer to the second intake period between committal for trial following the preliminary hearing and the date when the first trial date was set in Superior Court. However, the issue was discussed in argument before him during the previous three days. I do not conclude that he did not consider the matter. In respect of the intake period, he gave the Crown the full benefit of over three months from the date of arrest (December 24, 1999) to the date when the investigating officer had obtained all of the evidence (March 28, 2000), although he observed that the case was not a complex one and that the investigation was complete by January 19, 2000 except for a videotape of events of the night before the arrest, which the investigating officer did not obtain until March 28, 2000. [19] The original trial date was to be April 9, 2001. However, one month after that date was set, Crown counsel realized that the investigating officer had holidays booked for that time and on March 6, brought a motion requesting an adjournment. By that time, the respondent’s counsel was not available for a three week trial until July. He was getting married at the beginning of June, so that April or May had been his only available times when the first trial date was set. Although the record is not entirely clear on the point, my understanding from counsel on the appeal was that the Crown accepted that respondent’s counsel was no longer available for a three week trial in late April or early May by the time the adjournment motion was brought by the Crown. [20] In my view the trial judge was entitled to treat that period of delay as the fault of the Crown. The adjournment was required by the Crown and was sought when defence counsel no longer had available dates that he had when the trial date was originally set. Every case turns on its particular facts. Had the time periods been much longer, for example, then a different analysis may have been required. However, in this case, where counsel could have been available in July, in my view it cannot be considered an error by the trial judge in weighing and balancing the factors, to count the delay caused by the adjournment against the Crown. [21] The July dates were not acceptable because of institutional resource limitations for lengthy jury trials in the summer months. As a result, the adjourned date was set for September 17, 2001. [22] Having considered the delay factors, the trial judge turned to the issue of prejudice. The respondent, who was 24 years old,filed an affidavit which detailed the specific prejudice she was suffering while awaiting trial, as a result of the nature of the charges, the untimely death of both her parents which she attributed in part to the stress and worry arising out of the situation, and the restrictive bail conditions which limited her time with her child and prevented her from working as a babysitter. The respondent was cross-examined on her affidavit by Crown counsel at length on the motion. [23] With respect to the bail conditions, because of the nature of the charges, I believe that the respondent was not going to be able to have any greater access to her daughter until the charges before the court were disposed of. [24] The trial judge made a finding that specific prejudice was a very significant factor in this case. He referred to both the Morin decision where the Supreme Court emphasized the role of actual prejudice in the balancing process, and to this court’s decision in R. v. W.B., [2000] O.J. No. 2186 which also dealt with that issue. In my view the trial judge made no error of law. He was entitled to find that there was significant prejudice to the respondent from the delay and in weighing that factor, conclude that a stay was warranted. [25] I would dismiss the appeal. Signed: “K. Feldman J.A.”