J. 2000 SKQB 36 Crim. No. 1820 J.C.Y. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: HER MAJESTY THE QUEEN and LAWRENCE FRED COTE APPLICANT Todd J. Wellsch for the respondent Martel D. Popescul, Q.C. for the applicant JUDGMENT PRITCHARD J. January 27, 2000 [1] On April 30, 1998, Lawrence Fred Cote was served with summons to appear on May 12, 1998 in Provincial Court in Kamsack to answer to two counts of fraud and one count of conspiracy to commit fraud. On May 9, another information was sworn charging Mr. Cote with four counts of unlawfully managing bingo (the “Bingo charges”). Mr. Cote was also summoned to appear in Provincial Court in Kamsack on May 12 with respect to the Bingo charges. On June 1, 1999 Mr. Cote was committed to stand trial on one of the fraud charges. He now applies to this court for a remedy pursuant to s. 24 of the Canadian Charter of Rights and Freedoms. The application is based primarily on Mr. Cote’s position that he has been denied the right to be tried on the fraud charge within a reasonable time. [2] There is no dispute on the facts. The parties agree that just over 22 months will have passed between the laying of the fraud charge and the scheduled trial date of February 28, 2000. The Crown also concedes that Mr. Cote has not been responsible for the delay which resulted from the Crown’s failure to provide timely disclosure. [3] The facts establish that Mr. Cote’s counsel was requesting Crown disclosure even prior to the first scheduled court appearance. letter dated May 11, 1998 includes the request: “Please fax or forward to us by courier or other means complete Crown disclosure as soon as possible.” further oral request for disclosure was made at the first court appearance on May 12, 1998. On May 12, the matter was adjourned to May 26 for election as Mr. Cote was not prepared to make his election without receipt of the requested Crown disclosure. [4] On May 22, 1998, the defence again wrote to the Crown seeking disclosure. The letter includes the statements: On May 11, 1998, wrote to you requesting complete Crown disclosure. To date, we have not yet received disclosure. My clients are anxious to proceed with this matter and therefore your urgent attention is required. [5] On the adjourned date of May 26, 1998, the defence had still not received the requested Crown disclosure and the matter was again adjourned; this time to June 9. An eight-pound box containing disclosure had been sent to the defence by regular mail on Friday, May 22 but was not received until later in the day on May 26 and too late to be reviewed prior to the scheduled court time on the 26th. [6] On June 9, 1998, the date of the third court appearance, an election was made and preliminary hearing date scheduled. Five days were scheduled for the preliminary hearing. Although review of the proceedings on May 26 indicates that the defence was available and prepared to proceed with the preliminary hearing in July or in August, it appears that between the Crown’s full schedule and the court’s schedule, the earliest that five consecutive days could be scheduled was commencing Tuesday, September 29. The preliminary hearing was therefore set to commence on that date. [7] On Monday, September 28, at approximately 11:00 a.m., the Crown contacted Mr. Cote’s counsel by telephone to request his consent to an adjournment of the preliminary hearing. The adjournment was requested on the basis that there was large volume of material that had not yet been disclosed to Mr. Cote. This was the first indication that the defence had that there was further disclosure to be made. Consent was not given, and the adjournment request was made to the court the following day. Following argument on the issue, the adjournment was granted. [8] In arguing against the Crown requested adjournment, Mr. Cote’s counsel indicated that if the Crown had made the adjournment request month or two earlier, he would have considered consenting as request at that time, “would have reduced the amount of time that this matter would have been delayed”. In granting the adjournment, the Provincial Court Judge stated: And so in the circumstances that present themselves am going to grant the Crown’s request for adjournment, and intend to be as specific as can in setting time limits here for the Crown to get all the stuff it intends to adduce into the Defence’s hands, and intend to accommodate the Defence within reason to the greatest extent that possibly can as to dates for the Preliminary Hearing. And would expect that any problems that the Crown may face or have or whatever as result of being required to do these things, that these would be very strictly interpreted against the Crown on such later occasion. (p. 34, ll. 11-23) [9] In response to subsequent questions from the court, Crown counsel indicated that he would have disclosure on the fraud charge completed in one to two weeks and disclosure on the Bingo charges completed by the end of October. On the understanding that the Crown would have full disclosure to him by the end of October, defence counsel indicated that he was prepared “to look at dates in November”. Unfortunately, the earliest available five consecutive days of court time in Kamsack was not until Monday, February 8, 1999. The preliminary hearing was adjourned to that date. [10] Between September 28, 1998 and February 8, 1999, the Crown made no disclosure on the Bingo charges and on February it properly entered stay of proceedings on those charges. Although the Crown purported to provide disclosure on October with respect to the fraud charges, it is agreed that the disclosure package of October 7, 1998, contained no information or documentation that had not previously been disclosed. The “additional disclosure” package contained several documents that were identical to the original disclosure except that the copies of the “new” documents were now copies of certified true copies. In fact, notwithstanding the Crown’s September 29 advice to the court and to the defence that there was further material to disclose on the fraud charges, no additional disclosure was made in the four-month period between the originally scheduled preliminary hearing date of September 29, 1998 and the adjourned date of February 8, 1999. [11] The preliminary hearing commenced on February 8, 1999. Upon cross-examination of the second Crown witness, an RCMP officer, it became apparent that documents on an RCMP file had not been disclosed. The Crown was given short adjournment to review the RCMP file but the short recess was insufficient time for the Crown to be certain that everything from the file had been disclosed to the defence. Following this recess, the Crown stated at p. 45 of the transcript: So can say with 100 percent certainty those continuation reports have been gone through and that all substantive information has been disclosed? No. can’t say that. [12] The court therefore adjourned the preliminary hearing to March 2, 1999 to allow the Crown to examine the RCMP file and to provide disclosure of any material that had not yet been disclosed. On March 2, 1999, after being satisfied that full disclosure was complete, the preliminary hearing was scheduled for continuation on May 31, 1999. The preliminary hearing proceeded on May 31 and June as scheduled. On June 1, 1999 one count of conspiracy to commit fraud and one count of fraud were dismissed and Mr. Cote was committed to stand trial on the remaining fraud count. [13] The indictment was filed June 29, 1999 and the transcripts of the preliminary hearing were filed July 22, 1999. pre-trial conference was held by telephone on November 19, 1999 and the trial date was scheduled for February 29, 2000. At the pre-trial conference, the defence advised of its intention to bring this application which was made November 26, 1999 and scheduled for hearing on January 6, 2000. [14] In R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.R. 771, the Supreme Court of Canada has set out the factors court should consider in determining whether delay has been unreasonable. They are: 1. the length of delay; 2. waiver of time periods; 3. the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for the delay, and 4. prejudice to the accused. Length of Delay and Waiver of Time Periods [15] The Supreme Court of Canada has indicated that the time period to be considered is the period of time from the charge to the end of the trial. In this case, the date of the charge is April 20, 1998, being the date the information was sworn. Just over 22 months will have elapsed from the date of the charge to commencement of trial scheduled for February 28, 2000. The record discloses that Mr. Cote at no time directly or indirectly waived his s. 11(b) right to be tried within a reasonable time and I therefore find that the period of delay to be considered in this application is the entire 22-month period. I also find that this 22-month period of delay is an exceptional period of delay and is of sufficient length to warrant an inquiry into the explanation for the delay. Reasons for Delay a. Inherent time requirements of the case [16] Mr. Cote acknowledges that there is certain level of complexity in all fraud cases. The exhibit book in these proceedings is comprised of some 220 exhibits. However, find no indication of any particular complexity above and beyond the norm for cases of this kind. Mr. Cote cites R. v. Stienwand et al. (1994), 1994 CanLII 3891 (SK QB), 124 Sask. R. 307 (Q.B.) and contends that in Saskatchewan, fraud cases generally proceed from the laying of the information to trial within 10 to 14 months. This has not been disputed by the Crown; in part, perhaps, because it is evident that if the preliminary hearing had not been delayed by an adjournment on September 29, 1998 and again on February 8, 1999 and then to March and again to May 31, for total delay of months, the trial would likely have been completed within approximately 14 months. [17] Given the facts in this case, am not satisfied that the inherent time requirements of the case require 22-month delay from charge to trial. b. Actions of Mr. Cote [18] have already noted that Mr. Cote is not responsible for any of the delay that has prevented this matter from proceeding expeditiously to trial. However, not only do find that he is not responsible for the delay, also find that he has actively pursued speedy trial. c. Actions of the Crown [19] The Crown has conceded its responsibility for the delay in this matter. It has attempted to explain the delay, but find the words of Mr. Justice Noble in R. v. A.K. (1996), 1996 CanLII 7056 (SK QB), 150 Sask. R. 185 (Q.B.), at p. 189, are appropriate in this case: While the Crown’s argument helps the court to understand some of the reasons it failed to make timely disclosure, it does not, in my opinion, excuse them from the delay that was the result of its tardiness. [20] The eight-month delay in proceeding with the preliminary hearing falls to the Crown as does the one-month delay from the first appearance on May 12 to the third appearance on June when sufficient disclosure had been made to allow Mr. Cote to make an informed election. Therefore, find that the total delay occasioned by the Crown’s failure to make timely disclosure amounts to nine months. d. Limits on institutional resources [21] The parties have not argued that limits on institutional resources have significantly contributed to delay in this case. e. Prejudice to Mr. Cote [22] Although the Crown acknowledges its delay in providing disclosure to Mr. Cote, it argues that the delay has not resulted in any real prejudice to him. Mr. Cote disagrees. He notes that prior to these charges, he had been extremely active politically. In 1996, he was elected chief of the Cote First Nation. He won by tie-breaking vote cast by the electoral officer. The validity of the election was challenged and as result of these outstanding charges he was unable to participate in the new election held in September, 1998. Although it is highly unlikely that even without the Crown delays that these proceedings would have been concluded in time for Mr. Cote to participate in the 1998 election, the outstanding charges have clearly prevented him from maintaining his previously active participation in band politics. [23] Mr. Cote notes that he is public figure in very small community of approximately 800 people. He says that the charges were highly publicized over the radio and over number of print media and that while these charges have been outstanding, he has been unable to obtain three jobs that he applied for. He also indicates that his finances have been severely affected and not only has he been unemployed and living on welfare for some 22 months, he has also spent 22 months feeling ashamed and extremely frustrated. His frustration has even turned to anger at times, particularly when he has been ready to proceed but the Crown has not. He indicates that he has attempted to have the matter proceed expeditiously because of his position within his community. Although he was once proud leader, he now feels like an outsider looking in. [24] Mr. Cote also indicates that during this period of delay, four witnesses have moved. Three of them moved in July, 1999 and the fourth more recently, in November, 1999. He has talked to one witness about returning for the trial but the witness will only do so if he is paid gas money and meal money, which Mr. Cote indicates he is financially unable to accommodate. [25] An application of this kind requires that the court balance the individual’s right to trial within a reasonable time with society’s interest in having the matter proceed to trial notwithstanding any delays in achieving that objective. In Morin, Madam Justice McLachlin commented on the practical application of the factors relevant to determining whether the right to trial within reasonable time has been breached. She states, at p. 810: The task of judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in prompt trial outweighs the interest of society in bringing the accused to trial. The factors to be considered include the length of the delay, any waiver by the accused of the delay, the reasons for the delay and prejudice to the accused. But simply listing factors does not resolve the dilemma of trial judge faced with an application for stay on grounds of delay. What is important is how those factors interact and what weight is to be accorded to each. [26] Madam Justice McLachlin went on to comment that where the court has found unreasonable delay, the balancing of society’s interest in requiring an accused to stand trial and the right of the accused to trial within reasonable time is best achieved by examining whether the accused has been prejudiced by the delay. At p. 811, she states: The question is whether, on the facts of the particular case, the interest of society in requiring the accused person to stand trial is outweighed by the injury to the accused’s rights and detriment to the administration of justice which trial at later date would inflict. The interest of society in bringing those charged with criminal offences to trial is of constant importance. The interest of the accused, on the other hand (and the correlative negative impact of delay on the administration of justice) varies with the circumstances. It is usually measured by the fourth factor prejudice to the accused’s interests in security and fair trial. It is the minimization of this prejudice which has been held to be the main purpose of the right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within reasonable time: R. v. Conway, 1989 CanLII 66 (SCC), [1989] S.C.R. 1659, at p. 1672. An accused person may suffer little or no prejudice as consequence of delay beyond the expected and normal. Indeed, an accused may welcome the delay. On the other hand, an accused person can suffer great prejudice because of the delay. Where the accused suffers little or no prejudice, it is clear that the consistently important interest of bringing those charged with criminal offences to trial outweighs the accused’s and society’s interest in obtaining stay of proceedings on account of delay, because the consequences of the delay are not great. On the other hand, where the accused has suffered clear prejudice which cannot be otherwise remedied, the balance may tip in the accused’s favour and justice may require stay. How is prejudice sufficient to outweigh the important public interest in bringing those charged with criminal offences to trial to be established? The matter is essentially question of fact, dependent on the circumstances of the case. As Sopinka J. points out, the length of delay itself in many circumstances may not support the inference of sufficient prejudice to justify stay of proceedings. It is well known that accused persons may seek to delay trial and to use the “protective shield” of s. 11(b) as an “offensive weapon”, as Cory J. put it in R. v. Askov, 1990 CanLII 45 (SCC), [1990] S.C.R. 1199, at p. 1222. Where no inference as to prejudice can be drawn from the length of the delay, or where the most reasonable inference is the other way, the accused may have to call evidence if he or she is to displace the strong public interest in bringing those charged with an offence to trial. [27] The balancing of competing interests is difficult, but in this case, I find that the prejudice to the accused has been substantial and sufficient to tilt the balance in favour of requiring a judicial stay. [28] The background to this application is noteworthy and significant in that from day one, Mr. Cote has been unwavering in his desire for speedy trial. This is not a case of the defence steadfastly and unreasonably refusing to consent to Crown requested adjournments but quietly welcoming the resulting delay; or, of the defence otherwise seeking to delay the trial and to use the “protective shield” of s. 11(b) as an “offensive weapon”. The delay here was occasioned solely by the Crown’s failure to provide disclosure in circumstances that suggest that, despite Mr. Cote’s constant request for disclosure, the Crown simply failed to take the necessary steps to accomplish the task within reasonable time. These circumstances make any prejudice suffered by Mr. Cote all the less acceptable, particularly because the problem with disclosure was an ongoing one. [29] The record discloses that Crown counsel found it took him over two weeks to read and digest the eight pounds of documents that were sent by regular mail to the defence on May 22. And yet, these eight pounds of documents were only mailed on the Friday before the following Tuesday’s court date. In such circumstances, and even if the disclosure had arrived prior to the opening of court on May 26, given the quantity of material provided at such late date, it was impossible for Mr. Cote to be ready to enter plea on May 26. second adjournment was obviously necessary before plea could be entered. [30] The record also discloses that although the defence was prepared to have the preliminary hearing set for dates in July or August of 1998, the first scheduled date for commencement of the preliminary hearing was delayed to September because of scheduling difficulty. The September preliminary hearing date was set on June which gave the Crown four months to prepare. This was generous period of time which should have given the Crown ample opportunity to provide full disclosure well before commencement of the preliminary hearing. Unfortunately, this did not happen. In requesting an adjournment of the preliminary hearing on September 29, Crown counsel stated: The reason for the adjournment is, is that it has come to my attention that there is still some material and in respect to the one matter, with respect to the gaming, quite volume of material that has still to be disclosed. It has to be organized at this stage and disclosed. And with respect to the other matters there is also some further material to be disclosed. My learned friend advised me that he would be appearing here today. It’s my understanding that he will be objecting to the Crown’s request for an adjournment. Just on that point, Your Honour, point out that this is the first time the matter was set down to be heard in Court. There is quite large volume of material that feel should be not only do feel that by law must be disclosed, and would think that my learned friend would want to see that material before proceeding. If he’s objecting to the adjournment can’t imagine that he would want to proceed without seeing it. But in any event, as I’d indicated there is this material that must by law be disclosed and has to be disclosed and must meet that obligation, and in order to do so require some, some time. would, if the Court is prepared to grant this adjournment, be prepared to undertake to make this material available to my learned friend within reasonable time period. And would think, would think that the material would be able to be organized and copied within month at least. There is, from my understanding and just the exhibit list that got, quite vast amount of material that needs to be, well, looked at and copied, organized and sent off. And it is for that reason that make this request at that time at this time. (pp. 19-20) [31] The defence was ready to proceed with the preliminary hearing on September 29. But, notwithstanding that five court days for the preliminary hearing had been scheduled for four months, the Crown was apparently not even close to being ready to proceed, nor did it give any real explanation for its failure to have complied with its self-acknowledged legal obligation to provide disclosure. [32] In Canada, an accused person is presumed innocent until proven guilty in court of law. In reality, this fundamental principle is often overlooked by the public and especially in highly publicized cases where public figure is involved. Here, as a result of the Crown’s unexplained delay in providing disclosure, Mr. Cote will have endured an unnecessary additional nine months of unemployment, economic hardship and other prejudice in the form of embarrassment from the numerous media reports of the charges. And, this occurred notwithstanding that Mr. Cote did everything in his power not to have the process delayed. On balance, as indicated, the prejudice occasioned by this delay outweighs the interest of society in bringing Mr. Cote to trial. There will therefore be an order directing a stay of the charge in the indictment dated June 28, 1999 that was filed June 29, 1999.
The accused, Cote, applied for remedy pursuant to s.24 of the Charter of Rights stating that he was denied the right to be tried on a fraud charge within a reasonable time. Twenty-two months passed between the laying of the charge and the trial date. Cote was not responsible for the delay and actively pursued a speedy trial. The delay was caused by the Crown's failure to provide timely disclosure. HELD: The charge was stayed. In applying the decision of the SCC in R. v. Morin, the court found that 22 months is an unreasonable and exceptional period of delay and is of sufficient length to warrant an inquiry. This case had no particular complexity above the norm for cases of this kind and did not require this delay. Cote did not directly or indirectly waive his s.11(b) right to be tried within a reasonable time. Cote was subject to substantial and sufficient prejudice by the delay. He suffered damage to his political career, embarrassment from media reports, unemployment, and economic hardship. The court balanced the individual's right to be tried within a reasonable time with society's interest in having the matter proceed to trial despite delay. Here the defence was not seeking to delay the trial and use the protective shield of s.11(b)as an offensive weapon.