Case Name:
R. v. Nguyen

Between
Her Majesty the Queen, and
Cuc Thi Kim Nguyen

[2004] O.J. No. 4251

Ontario Court of Justice
Brampton, Ontario
Kastner J.

Oral judgment: September 8, 2004.
(64 paras.)

       Civil rights — Trials, due process, fundamental justice and fair hearings — Speedy trial, accused's right to — What constitutes within a reasonable time — Evidence of prejudice and causes of delay — Canadian Charter of Rights and Freedoms — Denial of rights — Remedies, stay of proceedings.

       Trial of the accused Nguyen for a stay of proceedings because she was not tried within a reasonable period of time. Nguyen was charged for an assault that occurred in September 2002. She was arrested in November. The complainant was a 90-year old woman who lived in a nursing home. Nguyen's first court date was on November 17, 2002. The trial date of September 8, 2004 was set on August 8, 2003. This was the first date that both parties were available. Nguyen was not available for the first offered date of August 23, 2004. Neither party waived any time periods. Nguyen claimed to have lost her employment because of the incident. It was difficult for her to find employment with the charge being unresolved. Nguyen, however, resigned from her employment because she was pregnant.

       HELD:  Application allowed. Any anxiety that Nguyen experienced was not the result of the delays in this matter. It was also not established if whether the delay affected her ability to find new employment. Although there was no actual prejudice, the anxiety and stigma of being charged was aggravated by the 21-month time period that elapsed in this case. Taking into consideration that part of the delay was caused by the accused, the delay was still found to be too long, given the lack of complexity of the matter.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, s. 11(b).

Criminal Code, s. 266.

Counsel:

Ms. C. Stoddart, counsel for the Crown.

Mr. C. Rippell, counsel for Ms. Nguyen.


RULING

 1      KASTNER J. (orally):— This is an Application by the Applicant for declaration of an infringement of Section 11(b) of the Canadian Charter of Rights and Freedoms indicating that the trial has not taken place within a reasonable period of time.

 2      The burden of proof, of course, rests on the Applicant to establish this infringement on a balance of probability.

 3      Ms. Nguyen is charged that on or about the 25th day of September 2002, she unlawfully did assault Hilda Locker under Section 266 of the Criminal Code of Canada.

 4      Although the alleged offence date is the 25th of September 2002, it is clear that she was not arrested until November of 2002 and the matter was not before the court until the 17th of December 2002, this charge having been sworn on the 13th day of December 2002.

 5      Thus the entirety of the period of time from the time the charge was laid to the present time is a period of approximately 21 months.

 6      The Crown concedes properly that this period of time is such as to trigger the inquiry the Court must make, in balancing all the factors, as outlined in Regina and Morin and Regina and Askov and other cases, to determine whether or not the right to trial within a reasonable time has been infringed.

 7      Although the case has been described in the written materials as a common assault or a simple assault, it clearly is properly characterized as an assault and the fact that it was laid pursuant to Section 266, as opposed to any of the other assault sections does not diminish or minimize the serious nature of the allegation.

 8      In paragraph 25 of the Crown's Factum, it is indicated that the allegation is one of an assault upon a complainant whose age is 90 years in the context of a retirement home or a nursing home. Precisely paragraph 25 of the Crown's materials indicates "The allegation involves an assault in a nursing home. Given the age, and mental and physical frailties of the complainant, the Crown is bringing a Khan application to have the complainant's out of court statements admitted for the truth of their contents at trial.

 9      The Crown's case with respect to identity is circumstantial and a number of witnesses will be required to establish who was with the complainant in the requisite time period. There are 20 Crown witnesses in total.

 10      In addition, the defendant Applicant requires the services of the Vietnamese interpreter, which is her right. However, of course, the simultaneous translation can add to the total amount of time necessary for the hearing of the matter.

 11      On the other hand, it has been submitted that this is not a complex matter and that it is no more complex than that of what is described as a routine impaired and over 80 charge, in which there were a number of witnesses, which may include a Charter motion and expert testimony.

 12      Of course one cannot make such a comparison, as each case has to be considered as to its particular complexity or lack of complexity. And whereas the number of witnesses in and of itself is not determinative, it is clear that there are some issues in this case that make it not routine; neither is it overly complex as the disclosure materials are not unduly voluminous.

 13      And although there are some 20 witnesses in total, it would appear that the Crown intends to call 11 witnesses. Aside from the voir-dire on the exception to the hearsay rule, there is nothing else overly complex; so in other words, a circumstantial case.

 14      Both counsel have made very articulate arguments advancing their position and the written materials submitted by both counsel for the Applicant and the counsel for the Respondent are focused and to the point. And the chart that counsel put through the materials is most helpful.

 15      Mr. Rippell focuses on the institutional delay in this matter and concedes, for the most part, that the delay is, up to the time the trial was set, substantially intake, retainer of counsel and adjournment of the pretrial.

 16      Although there are some specifics and argument in the factum that considered a period between May 21st and June 12th of 2003, it is not strenuously argued that this period of time ought to be considered as institutional delay.

 17      A perusal of the transcripts indicate at the outset the defendant's request for the matter to go over to retain counsel and to obtain the status of her legal aid application. Even though not retained, agent for counsel indicated that he was prepared to book a Crown resolution meeting, but not to go on record for this matter and asked for a further month at that time, being March 11th, 2002 to April 8th, 2002.

 18      There is nothing in the transcripts or in the submissions that indicate that there was any "footdragging", to use the vernacular, on the part of the defence, merely that there were retainer issues and then issues beyond the control of the defence personally and that is the Applicant was expecting a child, and apparently unable to attend court for the court appearance of May 21st and June 12th.

 19      Counsel appeared as agent on the next two appearances, June 25th and July 9th. And on August the 8th, 2003, counsel for the Applicant appeared again as agent and set the date.

 20      It appears the time from August 8th, 2003 to September 8th, 2004 is a period of 13 months. The verification of the trial date provided by the Trial Co-ordinator indicated that the first possible date being offered to the Applicant was August 23rd, 2004. This date was not available to the Applicant and was only two weeks earlier than the present date. Clearly, those two weeks are not institutional, but are as a result of the Applicant's counsel being unavailable on that particular date. This bears very little significance in totality however, in that three days were required for the hearing of this matter, and the very next date offered of September 7th, 2004, the Crown was not available and defence was not available, and then the following dates of September 8, 9 and 10 were agreeable to both parties.

 21      The factors for the Court's consideration have been well set out in a number of decisions and they are four-fold; the length of the delay, waiver of time period, the reasons for the delay and prejudice to the accused.

 22      As indicated in Regina and Morin, no single factor is determinative of the reasonableness of the delay. This balance requires an examination of the length of the delay and evaluating all of the other factors including societal interest.

 23      In this case, the waiver of time period is not an apposite consideration. Neither the Applicant nor the Respondent expressly waived any time period. The length of the delay that has been conceded is of such a length as to trigger the inquiry. Therefore, I will focus on the third and fourth factors, that is the reason for the delay and the prejudice to the accused.

 24      Dealing first with prejudice to the accused:

 25      Exhibit "A" in this proceeding is an Affidavit of the Applicant. She was cross-examined on that Affidavit. As well, there was a letter filed from Dr. Barry dated May 14th, 2003 as Exhibit "B".

 26      Ms. Nguyen asserted in her affidavit that she feared going to jail and wondered who was going to take care of her child and mother if she was in prison. She indicated that she was stressed and was referred to a psychiatrist by the obstetrician and received a prescription. She said that occurred in March or April of 2003.

 27      She also said she lost her job "after these allegations" and that "once her son became a year old, she began to think about returning to work and found that difficult to find a job with charges hanging over her head." She said "Many jobs ask for police records. I have applied for a job at Excel Store Fixture's factory to make furniture, they did not call me back."

 28      Following cross-examination, it is clear that she actually saw the psychiatrist on May 13th, 2003, when she was in the final month of her pregnancy. The symptoms that had been described was very anxious, fearful and having trouble with insomnia. There is nothing in the letter written by Dr. Barry which indicates or attributes any of the anxiety directly to the charge.

 29      It is difficult to parse or separate any depression or anxiety from the laying of the charge, from any delay in the proceedings, any physical difficulties with pregnancy or any hormonal changes resulting from the last trimester of her pregnancy. It is clear that insomnia, for instance, may have many other causal connections at that particular time of Ms. Nguyen's life than this charge.

 30      The psychiatrist prescribed her an anti-depressant and agreed to see her either in two weeks time or postpartum, if she had not delivered. From the evidence of Ms. Nguyen, she never returned to the psychiatrist. She never took the medication following a one month period. Her evidence was conflicting as to why it was that she declined to go back to the psychiatrist.

 31      On the one hand, she indicated she did not want the doctor to label her as crazy. And on the other hand, she indicated there was no basis for her to have this belief. She then stated that she was concerned that her family and friends would think she was crazy or schizophrenic. In cross-examination, she indicated that it was her family that was supportive of her re-attending the psychiatrist, and that she is in a culture of openness and that she felt open to discuss it with her family. She then retreated to the thought that perhaps her friends would hold her in lower esteem if they found out that she was seeing a psychiatrist.

 32      In any event, this psychiatric intervention took place almost one and a half years ago and before any trial date was set.

 33      As with any criminal charge, the fact that it hangs over one's head may well cause anxiety and it is for that reason that some prejudice is inferred by courts given an extended length of delay. But I cannot find, in terms of the anxiety and depression, that it is causally related directly to the delay in this matter.

 34      The next allegation was that she lost her job "after these allegations."

 35      In cross-examination, Ms. Nguyen was questioned as to the fact she was planning to give up her job prior to the allegation and had either drafted or delivered a letter of resignation.

 36      In cross-examination, she indicated that although wishing to resign because of the way she was treated by her place of employment, she wanted to finish out her shift and that the letter was to be two weeks notice.

 37      There is no issue, but that her position was terminated, but the drafting of the Affidavit in the sentence is less than candid as it appears to try to attribute the loss of her job to the allegation.

 38      When terminated, Ms. Nguyen was not advised of the reasons nor was she desirous of the employment at that time. I note from the timing that she was, of course, pregnant at the time, and she had decided to resign her position. She indicated that she did not seek employment again until her son became a year old. Her son is now 14 months old. Therefore, at the earliest, she has only been seeking employment in the last two months. In fact, the Affidavit is less precise than this. It indicates that she began to think about returning to work. There, is no indication of any effort being made save and except an Application for a job at a furniture factory.

 39      Ms. Nguyen indicated in her Affidavit that many jobs ask for police records. She did not have a police record. She knew that she was only charged and was not found guilty and had no record. This would not be a disincentive to seeking employment. She also indicated that she made the application to the furniture factory but "they did not call me back."

 40      In cross-examination, she indicated that she did call them to find out why they did not call her back, and she found out they were having a work slow-down. This is clearly contrary to what she was asking the court to rely on in paragraph 8 of the Affidavit, namely, that the loss of that job is somehow related to the fact she is charged with an offence.

 41      Not only did she receive information to the contrary, but any inference that that is the case is speculative at best and only subjective belief on her part. There are no indications in the Affidavit or otherwise that there is any diminution of memory or fair trial concerns. No witnesses have been lost and thus the prejudice to the applicant here is the inferred prejudice from the fact that it has been about 21 to 22 months since the time of the alleged offence.

 42      I note as well that the applicant was released on a Promise to Appear and has been under no conditions of bail or no restrictions on her liberty.

 43      Obviously, the presence of actual prejudice will tend to lessen any time period of institutional delay, in terms of what might otherwise be reasonable. This feature however is not determinative of the application. Thirteen months passed from the time the date was set to today's date. All of this is properly characterized with the exception of the last two weeks as institutional delay.

 44      Mr. Rippell indicated on August the 8th, 2003 "My client and defence counsel were prepared with much, much earlier dates and it's of grave concern that it's going to be more than a year from today's date that she'll have her trial, particularly since she just gave birth to her first child. And for more than the first year of that child's life, she has no criminal record and she's going to have these charges hanging over her head, so that's of grave concern to the defence."

 45      Justice Wilkie also asked "Is Crown content with these dates?" And a representative for Crown counsel indicated "Yes." Ms. Stoddart asked me to find from that exchange between the Court and Crown that the Court was merely affirming that the Crown would be ready on the dates that were scheduled on the verification of the trial date. Of course, that is not strictly necessary, given that the Court has the verification of the trial date provided by the Trial Co-ordinator, which lists all of the dates offered and the availability of the Crown and the defence for this matter.

 46      The Court's question was whether the Crown was content with the dates, not whether they were available on the dates. The Crown answered in the affirmative. This is of some concern, given the previous expression by Ms. Stoddart, not the Crown on August 8th, that time was a concern to the Crown.

 47      In June, when the pretrial was held, counsel for the Respondent clearly stated that the Crown was ready (Ms. Basso for the Crown) to set a date that day.

 48      It has been made clear in subsequent cases in the Court of Appeal that all parties bear responsibility for ensuring that a trial occurs within a reasonable time; that includes Crown Counsel, defence counsel and the Court.

 49      It was clearly open to the Respondent, if these dates were not satisfactory on that date, namely August 8th of 2003, to bring this matter to the attention of the Administrative Justice or to re-visit the dates with the Trial Co-ordinator to find earlier dates, to prioritize this matter or to have the matter brought back to have this matter rescheduled. And it appears to be why it was that the Court addressed the Crown specifically on August 8th whether they were content with the dates.

 50      Counsel for the Respondent is quite accurate in indicating that this blitz, which we are now engaged in, just commenced on September 1st of 2004 and goes until at least January of 2005. And that it would not make sense to bring this matter forward into this blitz as it would only bring the matter forward some one week. However, the blitz is not the only way in which counsel can prioritize matters of a serious nature that need to be heard.

 51      Crown counsel asked me to essentially deduct time from June 2003 to August of 2003, because the Applicant did not set her date when the Crown was ready to. Although it was clearly open to the Applicant to target dates and have them confirmed after discussion with the Applicant, there is nothing before me from either counsel to show that any earlier dates were available, had that been done.

 52      I agree with Crown counsel that there is no limitation period upon which a trial ought not to take place. Each case must be determined on its own facts. And the additional complexity, although not of a high degree is such as to not make this case entirely comparative to Meisner which was a four hour matter. And thus, the time period that Justice Hill mentioned of nine months and six days being "at the margin" for an offence that requires a four hour trial is not apposite.

 53      Although it is clearly the case in the Supreme Court of Canada in Askov that an eight to ten month period is what is normally suggested with the lower end of the range appropriate for less complex matters and the higher end of the range more appropriate for more complex matters.

 54      That being said, even with the additional complexity in this case, this matter exceeds ten months by over two months, bordering on three months.

 55      I have reviewed all of the cases that have been provided by both counsel and although the case is not directly on point, make reference to Regina and Batte, 145 C.C.C. (3d) 498 from the Ontario Court of Appeal.

 56      As I indicated, it is not a strictly comparative case because Batte was a trial by jury after committal. The systemic delay in that case that was being considered was the period of approximately one year. But the total delay was over three years.

 57      In that case, the trial judge concluded that "12 months for a charge of this nature over and above what would be reasonable is, when weighed against the public desirability of having charges of this type in these circumstances tried, in my opinion, not too much." The trial judge spoke of the societal interest in trying serious charges.

 58      Although their Lordships in the Court of Appeal at paragraph 89 said it was a serious charge, the Court put a burden on the Crown, who prioritized other cases over that one causing it not to be reached in court sittings indicating that even if the case had proceeded on the April 15th sittings, 30 months would have already passed. The Crown offered no explanation for the inability to try the case during these time periods. The abortive first trial did not commence for about 37 months after the order to stand trial and 18 months after the sentencing of another related matter.

 59      The other factors the trial judge had highlighted in deciding that the one year of unexplained institutional delay did not infringe the appellant's rights were the lack of significant prejudice, the overall complexity of the matters, the not infrequent change of counsel and the choice of Brampton as a forum. Of course here, there is no choice of Brampton as a forum, it is a forum of right, it's not a change of venue application. Here there was not a change of counsel.

 60      I also note that, in fact, in Batte there were fair trial prejudice allegations made, which were not properly dealt with by the trial court including that at least two potential defence witnesses had expressed concern about losing more time from work and had become reluctant to testify.

 61      As I said, although these cases are much different, that is this case and the Batte case, the Appellate Court cautioned the trial court about overemphasizing complexity of the case. In that case, the complexity was referred to as "some complex matters, but just disclosure and third party records and admission of similar fact evidence."

 62      And although those matters were dealt with by pretrial motion and were able to be used at the trial, in this case there is less complexity, that is the Khan application and the use of an interpreter.

 63      As their Lordships indicated one cannot, on one hand excuse a considerable delay because of the need to try the more serious charges first while ignoring the affect that manner of proceeding had on simplifying the issues on the subsequent trial.

 64      While I have not found actual prejudice, I have found that distress and anxiety and stigma of being charged is aggravated by the extended period of time, in this case some 21 months. And weighing and balancing all of these factors, 13 months or 12 and a half months, considering the first date offered by the Court, given the lack of considerable complexity of this matter is too long and on balance, all these factors mandate a finding that Section 11(b) has been infringed. As such, the matter will be stayed.

QL UPDATE:  20041022
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