I Cite as: R. v. Karam, 1991 NSCO 3 /., CAN A D A PROVINCE OF NOVA SCOTIA C.R. No.: 11769 COUNTY OF HALIFAX IN THE COUNTY COURT
OF DISTRICT NUMBER ONE
BETWEEN: HER MAJESTY THE QUEEN Plaintiff - and JAMILY. KARAM et al Defendant HEARD: At Halifax, Nova Scotia on the 3rd, 4th and 5th days of September, A.D., 1991. BEFORE: The Honourable Judge Nancy J. Bateman CHARGE: Section 11(6) of the Criminal Code. DECISION: September 6th, 1991. COUNSEL: (ORALLY) : The defendants are charged on a six count indictment alleging theft and fraud over an eighteen month period. They have moved for a stay of proceedings, alleging a violation of their S.ll(b) Charter right, to be tried within a reasonable time.
,, In R v. Askov, (199a), Cory J., writing for the majority, drew upon previous S.C.C. decisions such as R. v. Mills, in setting out the factors to be considered in determining whether there has been a s. ll(b) violation. Cory J. sets out four factors: 1. Length of delay; 2. Explanation for the delay; 3. Waiver; 4. Prejudice to the accused. Little guidance way to balance these factors. logical process is as follows: 1 Length of Delay: The court first time which is alleged to to prima facie invite investigation. does not call for scrutiny, there is no violation. - 2 59 C. C. C• ( 3d) 449 (S •C•C. ) R. v. Rahey, R. v. Smith, is provided, however, in the My understanding of the looks at whether the elapsed be unreasonable is long enough If the elapsed time the matter goes no further,
"
At this point, therefore, it may to look at statistical data of time involved for comparable jurisdictions. If the elapsed time is prima facie longer would be expected, the Court moves on to the second factor. 2. Explanation for the delay. An elapsed time long may be excusable, taking into the delay. Cory J. suggests head (i) conduct of the Crown (ii) systemic or institutional delay (iii) conduct of the accused. While the ultimate satisfy the Court that the at this stage of the matter there is an evidentiary burden on the Crown to satisfy the Court that the in the case was reasonable (s.C.C.» • It is not necessary to find improper notice by the intentional or inadvertent of time is too long. - 3 be appropriate speaking to the usual length than which prima facie appears too account the cause of three sUbcategories under this burden is on the accused to delay has been unreasonable, time involved or excusable (~ v. Smith any bad faith or Crown, whether the delay is is irrelevant if the period
While the sub categories are helpful in isolating the causes final analysis he seems to find that there are really only two types of delay - that which is actively caused by the accused and, therefore, of and all other delay whatever the cause. I have difficulty in distinguishing between Justice Cory I s "conduct of the accused It and the factor which he calls "waiver", which is separately considered - they seem to be the same. It seems the only the causes of delay is to remove periods of time which ran accused. The Crown is relieved or justification for those the Crown must explain the delay. If the Crown adequately a manner that justifies the lapse of is not "unreasonable" and violation. - 4 identified by Cory J. of the delay, in the which he cannot take advantage category under this head significance of categorizing from consideration those because of the actions of the f rom providing any excuse periods. In all other cases explains the delay in time, then the delay the inquiry ends. There is no
If the Crown is unable to satisfy the Court that the length of time involved is reasonable, moves on the consider the next factor. 3. Waiver~ Notwi thstanding an may refuse to grant relief if the accused unequivocally and in an informed to a trial wi thin a reasonable time. objection by the accused is have good reason to waive can inure to the benefit of the accused. Agreeing to future waiver if there is no conduct and if the accused is truly exercising an than acquiescing to the inevitable. If there has been the stay is not granted. It is clear that remedy, once unreasonable minimum relief which can v. Bennett. - 5 then the Court unreasonable delay, the court has clearly and manner waived her right Silence or lack of not waiver. An accused may her s. ll(b} right, as delay dates can result in implied rebutting the implication option, rather waiver, relief is denied and stay is not a discretionary delay is found, but rather the be granted, as clarified in R.
If there has been been found unreasonable, the Court will grant relief subject to the last consideration. 4. Prejudice to the Accused; As I understand the delay is unreasonable the Crown may nevertheless stay if it can demonstrate that the accused has not suffered any prejudice as a result of the delay. the very essence of the s. an accused is not prejudiced is to be expected from the fact of being charged. It seems logical that prejudice is only considered in the context of the Crown's last ditch effort to a proceeding that has been unreasonably delayed. It is not clear, Askov are unanimous on this Askov and subsequent cases or not there has been prejudice in determining if the length of the delay is unreasonable. below. - 6 no waiver, the delay having the decision of Cory J., where and there has been no waiver, forestall the granting of a This is so because ll(b} right is to ensure that in the process, beyond what save however, that the jUdges in point. It appears that in some judges consider whether I will address this point '
All judges in Askov agreed that there is certain prejudice inherent in being whether these inherent prejudices time, sufficient to meet prejudice must be demonstrated. I have difficulty context of deciding whether example, a person may be shortly before the conclusion transaction. He may, as trial may be concluded within yet the prejudice is great elapsed, which would otherwise be reasonable, If that were the case, active enti tIed to be tried sooner person, who's business or employment is unaffected by pending charges. This does not seem appropriate. At page 483 Cory J. says: "Furthermore, the by Sopinka J. in the Smith case whereby accused persons who additional form permitted to adduce evidence of prejUdice - 7 charged. They differ as to can be exacerbated by the test, or whether special considering prejudice in the the delay is too long. For charged with a serious matter of a significant business a result, lose the deal. The a very short time frame, - that does not make the time unreasonable. business people would be or faster than the ordinary option left open have suffered some of prejUdice are
on their own initiative strengthen their a remedy under s. is consistent with of protecting the under s. 11 (b) ... At page 36 of Bennett, Arbour J. states: "Some fonns readily apparent, custody, that the to, and does routinely, account in setting However, if an prejudiced by delay in way, he or responsibility for taking the initiative in alleviating that prejudice. This, in my view, is not inconsistent with the proposition need not assert An accused who claims prejudice, the prejudice common and inferred from any delay, is claiming an entitlement than other accused in apparently similar circumstances. The system to accommodate to hear it expressed. a point, in my opinion, where an accused who is suffering from the delay of his trial must bring his or her plight of the prosecuting the courts." Applying the Askov consider: - B in order to position in seeking 24 (1) of the Charter the primary concern individual's right of prejudice are so such as pre-trial system is expected take it into early trial dates. accused is being a less apparent she must bear the that an accused his s. ll(b) right. beyond to most accused to a speedier trial only way for the that claim is There comes a special prejudice to the attention authorities and test to this case I first ',
, . 1. The length of the delay. The elapsed time beginning of the trial is objective analysis this length explanation. The evidentiary to explain the delay. 2. Explanation for the delay. The defence says it cannot possibly be justified. it says, is attributed to the Crown. While, ultimately, be considered, for the purposes the total time is broken down into segments. The most significant period runs from arraignment on July 6, 1989 to the preliminary This totals 546 days or approximately 18 months. The preliminary March 1, 1990, by agreement defence agreeing to that anticipated schedule for disclosure. the accountant's report would and the balance of material by the end of July. - 9 from first appearance to the 842 days 27.7 mos. On any of time calls for some burden shifts to the Crown the period of time is so long All but three weeks, the total period of time must of identifying causes, on December 3, 1990. was originally scheduled for of counsel. Material to the date, however, was the Crown's It wa s expected that be available June 5th, 1989
Based upon that to March 1, 1990 as the preliminary hearing date. from this that the defence disclosure and preliminary presumably time necessary including consultation with their suggesting that the defence, the s. 11 (b) right - that is to be stage - but rather, in order to get a "reasonable period" in this case, it seems to look at the reactions involved with the matter. involved at the time are to determine what is reasonable. exchanged between counsel invi ted to suggest dates March 1st but declined. There is indication as well that defence counsel, at the time in June for the following to his ability to be prepared assuming the disclosure was made as anticipated. by Dubin, C.J.O. R. v. Bennett at - 10 timetable the defence agreed I infer felt that the time between was a reasonable one and was for the defence to prepare, own experts. I am not by agreeing to the date waived considered at a later a sense of what is appropriate of counsel, who were intimately Clearly, experienced counsel in the best possible position The correspondence indicates that the defence was for the preliminary other than of setting the preliminary March, expressed some doubt as within that time frame As stated p. 8: '....
"Mere silence objection .•• cannot waiver. However it has also been that the accused's taken into account prosecution's explanation for the delay." And at p. 32, Arbour J. states: "The conduct Askov may assist in ascertaining whether, in a given jurisdiction, a subjective unreasonableness it took for Acquiescence to dates and to adjournment cannot always be resignation to some instances, trial date more may indicate a that such a time circumstances, is not unreasonable." In the defence's to March 1 was driven by is implicit the suggestion simultaneous with the charge, projected, the matter could 1, 1990. Since full disclosure end of July, about 2 months after election and plea, working backwards, the defence is ready to proceed in early January 1990. - 11 a lack of consti tute lawful held conduct must be in assessing the of counsel prior to there was perception of in the length of time cases to be tried. construed as simple the inevitable. In the acceptance of a than eight months away recognition by counsel lapse, in all the assertion that its agreement the Crown's disclosure schedule, that if disclosure had been or at least sooner than have proceeded before March was anticipated by the suggesting it might have been
" I The first question, proposed disclosure schedule was I have not been presented with any material of disclosure. There are presumably no fixed other than the clear principle that the defence is entitled to timely and full disclosure. At the time the the Crown's expert accountants of the documents and provided Crown. The police had investigated the matter from December 1987 to May 1988. In May and executed resulting in the of documents. These were accountants. It seems logical that the accountants not prepare a formal report, suitable the Crown had determined to proceed with charges. if charges were not to result the expert report would not be necessary. On the other hand, fair that the Crown not make a decision to charge the accused - 12 then, is whether the Crown's reasonable for this case. on the timing time frames information was sworn (May 15) had completed their review an oral assessment to the search warrants were obtained seizure of 76 large boxes the records analyzed by the for trial presentation, before Obviously it also seems logical and
in mid May but wait months swearing the information disclosure. For the Crown wait for the formal report in these circumstances where the accused investigation and, I presume, anxiously awaiting its outcome. It is quite appropriate the earliest possible time to proceed - this was done. The ini tial time estimated to provide the report by the accountants retained by the Crown appears reasonable given the many thousands of documents seized and reviewed. At this point I must add f or me to make jUdgments as to the time" to prepare the report, I have only sketchy information about the case. I can't examine proposed exhibits or hear details in advance of the trial. It may be that this type of motion is better handled by a judge other the case. The Crown did not provide until August 23rd with the balance of the disclosure over the next several weeks, culminating with the brief on October 18th anticipated. - 13
for a formal report before just to facilitate immediate to decide to lay charges yet would be particularly unfair was aware of the that the accused be advised at of the decision of the Crown that it is extremely difficult "reasonableness of the or prepare f or trial, when Obviously than the one assigned to hear the accounting report rough court some 2~ months later than
On July 4th, 1990 defence counsel wrote the Crown and expressed doubt that 1st since the end of June disclosure had not been provided. This is further indication of by the defence to prepare for the preliminary to my determination of the "reasonableness" of the period. Due to the delayed disclosure, the Crown suggested adjourning the preliminary to April of September 28th the Crown the adjournment would be convenient. that they "would not oppose ll Again, while the cannot be viewed as waiver, it leads me that the additional time reasonable, and probably necessary by the defence. add, however, that it might for the Crown to affirm its willingness leave the matter of the adjournment to the needed. These were, however, by Arbour, J. in R. v. Bennett. Was the Crown unreasonable in not fully disclosing prior to mid October? Again critical decision with inadequate - 14 the matter could proceed March the length of time required - and goes 30, 1990. In a letter enumerated other reasons why The defence responded the adjournment. defence's lack of opposition to the conclusion to April 30th was considered I would have been more appropriate to proceed and defence - if the "pre-Askov" days referred I am called upon to make a information. I know
there are 19 exhibit books that the alleged offences occurred over an 18 month period~ that the amount allegedly defrauded over that period exceeds $900,000.00~ that there are 3 alleged institutional victims~ that there are two defendants, that this alleged offence but an ongoing fraud over it was necessary to retain an accounting expert to review 36 boxes of seized documents. overall time to make full disclosure, in these circumstances, was unreasonable. In August 1989 of the file from the. two original investigating officers. The defence says that transfer unnecessary delay in the disclosure. timetable had by then passed, investigating officers remained in place. that his job in assembling court brief would have been have the assistance of one he does not agree with the proposition that the disclosure would have come sooner. He says he worked days and evenings assembling the material. such as this spanning years, - 15 comprising 4,000 documents~ one being a corporation ~ was not a single transaction the 18 month period, and that I cannot conclude that the Sgt. Neil Smith assumed conduct of responsibility caused The original disclosure even though the two original Sgt. Smith agrees the witness' statements and easier, had he continued to of the original officers, but It seems reasonable, in cases including investigative time,
that the officials involved permitted to get on with of the officers left to attend law school seem unreasonable. Indeed of the investigation and appropriate time to make such as this. Full disclosure brief was made in mid October by September when the original investigating officers were available - the further six weeks does not seem unreasonable. It is my understanding from that the documents in support of not be assembled until the report was The original disclosure estimate anticipated full disclosure within two months after is almost exactly the period cannot relate the extended the change in personnel, been triggered by the late arrival of the accounting report. I find the Crown reason for the time elapsed 1990. The period of time, case was not unreasonable. - 16 such as police officers, be their lives and careers. One - that does not the period after completion before trial seems particularly personnel changes in long cases in terms of the initial court if it hadn't been made the evidence of Sgt. Smith the experts report could received August 23. the accountant's report. This of time that followed. I time for full disclosure to but rather it appears to have has adequately explained the from arraignment to April 30, in the circumstance of this
- The next period for consideration runs from April 30, 1990 to December 3, 1990, was finally held. Around April 17, 1990 the Crown attorney developed unforseen complications from routine eye surgery. be unavailable until early postponing commencement of The defence rejected this that the remaining time would not be sufficient to complete the preliminary. In his response for the defence suggested a postponement to "late fall". The Crown then this was not convenient to the court time available in July and that that timing was specifically discussed counsel. Defence counsel fall - the preliminary was rescheduled to December 3, 1990, the earliest available date for the defence. The defence says December 3 is inexcusable and caused solely by the Crown's unavailabili ty to start March 1. 17 when the preliminary hearing He would May. The Crown suggested the preliminary to May 14th. suggestion due to its concern on April 25th, counsel suggested a June preliminary, defence. While there was August, it is not clear with defence was unavailable throughout the the delay from April 30 to The Crown says the delay
, ' attributed to the Crown was minimal, but the lengthy period resulted from the unavailability of the defence. The unavailability an unavoidable and unexpected of the problem, just two weeks before the preliminary was to start, the file could not be handed over to another Crown attorney. At this point the and presumably some idea the preliminary. Ultimately 5~ days although that was view, defence counsel would on May 14 or would have summer dates if the prospect unreasonable. In his letter to the Crown attorney on June 4th defence counsel says at the he did have available dates in June, in a conversation with the he rejected the June dates. the defence was to suggest waiver by the accused but of that magnitude was not - 18 of the Crown attorney was event. Given the timing defence had full disclosure of the actual time required for the hearing consumed only not known in advance. In my have been prepared to proceed made some effort to investigate of a further delay was time of the adjournment July and August, yet Crown's office on April 26th The very first response by a late fall date. This is not a clear indication that a delay unreasonable - consistent with
, , the above quoted remarks in Bennett. I again fi,nd that satisfactory explanation, the preliminary to December circumstances of this case the delay is reasonable. J. specifically recognizes in Askov at p. delay can be justified where there is a investigation or retention witnesses. This is addressed at p. 496. The next period from re-election in County date of trial (Sept. 3, 1990). At the time of setting down, in June, however the first September. Of the subcategories of delay this is "systemic". The entire period of delay unacceptable. It was held not complex, and not one which required significant resources or time. The appellant incarceration. (This account - 19 of Dubin C.J .0. and Arbour J. the Crown has provided a justifying the postponement of 3, 1990. In the unique Cory 485 that a lengthy need for a lengthy of and discussion with expert as well by MacLachlin J. for consideration is the time Court (Dec. 20, 1990) to the (257 days, 8.7 months). days were available month long block began in in Askov was systemic and in Askov that the case was had suffered prejudice through is as summarized by Arbour \~
- " { J. at p. 11 of Bennett). delay is the most difficult factor to assess. The defence has filed Carl Barr, summarizing dispositions in various jurisdictions. Clearly the total time required for this case significantly longer than the norm. Is 8~ months to obtain a trial date after committal too long? Dr. Barr acknowledges that measuring the complexity of cases in his study of elapsed time. His material does not conclusively answer the question as to an acceptable period from committal to trial. In this instance significant block of court time. the time from setting down to trial would be somewhat longer than the norm. Cases were being scheduled in County Court wi thin five to six months. two months beyond that time frame. That time frame A significant factor contributing the County Court is the failure intend to enter guilty pleas to notify the court sufficiently 20 Cory J. recognizes that systemic an affidavit of Professor he had no means of the counsel were seeking a It is reasonable to expect This case was scheduled about does not seen unreasonable. to the congestion in of accused persons, who
" , in advance of the trial date to allow to be scheduled. Most commonly of plea the morning of the trial. We currently have a system convenient to counsel, generally that is desirable from the it causes some waste. Requests uncommon and generally granted. counsel and the accused that cases are not doubled as occurs in many jurisdictions. few court days are lost. a consensual system. This wai ting time before trial - our resources to convenience counsel. As stated by Dubin C.J.O. in Bennett at p. IS: "However, if a stay is be the only appropriate remedy to protect the latter interests, consideration will to the manner in in criminal cases this province within reasonable has been made to accommodate the accused and his or her counsel." As stated by Arbour J. in R v. Bennett at page 14, "it is the reasonableness of - 21 a substitute case we learn of the change A court day is lost. of assigning dates only if defence counsel. While perspective of the accused, for adjournments are not It is to convenience both booked With double booking At present, however, we operate results in a somewhat longer that is the price of managing accused persons and their held also to then serious have to be given which trial dates are to be set in where traditionally, limits, every effort the total period of time '
" . - that has to be assessed in the light of the reasons that explain its constituent parts". to mean that even if a part of the whole case is unreasonably delayed, if the overall time will not be granted. I have found that there is the delay from arraignment also found that the systemic trial is wi thin acceptable limits. been no S. 11 (b) violation. inquiry ends here. Waiver is only considered is unreasonable. I have earlier prejudice is considered only an otherwise unreasonable to Arbour JI S summary of Askov in Bennett at p. 11: "The two year cornrni ttal for trial was period that only a could excuse it. be pure systemic delay, in a 22 I take this statement frame is reasonable, stay a justification for to the preliminary. I have delay from re-election to Accordingly, there has As I understand the test the if the elapsed time stated my understanding that in the negative, to excuse delay. On this point I refer delay subsequent to such a lengthy strong justification It turned out to case which
· , - was not complex or inherently difficult. Three of the appellants had been sUbject to lengthy periods of pre-trial custody and all were under bail conditions. be said that absence of prejudice could excuse the delay." One matter which of this application. There the appropriate procedure to follow arguments. Some are best made well in advance of the trial and others can only be made at the commencement or during. It appears to me been made months ago, very scheduled for County Court. no criticism of the defence in this matter. to the likely concern of the was made too early the alleged prejudice to the defendants may not have fully matured. On the other hand, deserving of significant allowance was made for the down. As a result I have a very compressed time frame. while I am comfortable with the decision, 23 somewhat stringent It could not therefore bears comments is the timing has been much debate as to when launching charter that this motion should have shortly after the trial was In making that remark I intend I am sensitive defence that if the motion this is a crucial motion and time and attention. No time motion at the initial setting had to deal wi th the matter in Due to these constraints, I have not been
. , - \ able to put together a judgment references and, in some instances, to fully articulate my analysis could have adjourned for would have taken valuable it was to proceed) and I am not been allowed. Additionally, in in this case should have been heard by a the one scheduled to hear the case. have viewed some of the intended exhibits and heard better detail as to the "complexity" of the case. Finally, had the and if allowed, the court to other cases. Had I allowed court time would be lost with virtually no hope of filling the days. This is the type of situation which contributes to "systemic delay". I make it clear that I i terns into consideration in determining the merits motion. I do recognize that defence counsel must ultimately 24 which contains full case I have not had time of the issues. While I a longer period of time, that days away from the trial (if now told sufficient time has my view, the s. ll(b) argument jUdge other than That judge could then motion been heard months ago, time could have been assigned this motion, a month of did not take these latter of the
· , - make a decision as to timing governed only by the interests of the accused. In summary, then, defendant's s. ll(b) rights. trial will proceed. 25 I find no violation of the The motion is denied. The
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