R. v. Ansah, 2007 CanLII 19416 (ON SC)

COURT FILE NO.: 0614/05

DATE: 20070525

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN
S. Patterson, for the Crown
Respondent

– and –

AKWASI ANSAH, ANNA BUAKO, PETER NARTLEY, KHANDRA ELEYE, TAM TRAN, AYAN JIBRIL and HANI MUSE

A. Ansah on his own behalf; J. Norris for Buako and Nartley; M. Doli for Eleye; M. Kerbel for Tran; A. Farooq for Jibril; and D. Gallagher for Muse

Applicants

HEARD: May 23, 2007

M. Dambrot J.

[1] This rather straightforward fraud case has taken almost three years to get to trial. The applicants argue that their right to be tried within a reasonable time protected by s.11(b) of the Charter has been breached by this over-all lapse of time, and that the charges should be stayed.
[2] In this case, I do not find it necessary to engage in a piecemeal analysis of each component of the period of delay in order to perform the balancing exercise necessary to assess the claim of unreasonable delay. I will spend a few moments describing the nature and history of this case, and then turn immediately to a consideration of the well-known factors that inform the determination of unreasonableness.
THE NATURE AND HISTORY OF THIS CASE

[3] The Crown alleges that the seven accused participated in a fraudulent claim for insurance arising out of a non-existent motor vehicle accident.
[4] On June 12, 2002, six of the accused, along with a seventh accused who is now deceased and Sheila Bindah, reported to the police that they had been involved in a motor vehicle accident. They said that they were traveling in two vehicles, and that one of the vehicles had been rear-ended by the other. They subsequently made injury claims to the insurance companies that were the insurers of the two cars. A total of $86,451.93 was paid out, mostly to service providers. The payments to the individuals ranged from $800 to $27,000.
[5] In October 2002, Bindah approached one of the insurers and reported that there had been no motor vehicle accident, and that the insurance claims were fraudulent. The insurer commenced an investigation. An accident reconstruction expert was retained, and provided a report on November 19, 2002, and a supplementary report on December 10, 2002. The final accused, Mr. Tran, was identified and alleged to have facilitated this fraud. The matter was referred to the police in February 2004.
[6] The police were essentially handed a case on a silver platter. There was virtually no investigation left to be done.
[7] On June 11, 2004, the police contacted the accused, and arranged for their surrender and release from the police station. An information was sworn on June 15, 2004, and the accused first appeared in court on August 10, 2004.
[8] Because the investigation had been completed prior to the involvement of the police, the police were able to deliver the Crown brief to the Crown prior to the first appearance. Counsel for the accused were advised that four boxes of disclosure were available for them to pick up in the Crown’s office on the day of the first appearance.
[9] I do not consider it necessary to describe in detail the events that followed. It is sufficient to summarize them. It turned out that the promised disclosure was not available on August 10, 2004. Two volumes of disclosure were finally provided to the accused shortly before November 30, 2004, but this disclosure did not include the seven volumes of material generated by the insurance company’s investigation. The absence of this material became apparent during a judicial pre-trial conducted on January 13, 2005, resulting in the pre-trial aborting.
[10] The missing disclosure was finally made available to the accused on February 9, 2005, almost eight months after the charges were laid, and almost eight months after it was made available to the Crown. To this day, no one is able to explain why disclosure was delayed. Following the completion of disclosure, a judicial pre-trial was scheduled for March 8, 2005. This pre-trial was completed successfully.

[11] The failure to make timely disclosure was not the only mysterious event that delayed the commencement of the preliminary inquiry. This case began in the College Park courthouse, but on September 30, 2004, it was transferred to the Metro West Court at 2201 Finch Avenue West. After three appearances at that courthouse, on January 13, 2005, the case was transferred back to College Park. No explanation for the transfer of the case to Metro West, or its transfer back to College Park, has ever been provided to the accused.
[12] The transferring of the case between courts is more than a mysterious nuisance. Along with the change of venue comes a change of Crown responsibility. Different offices had carriage of the case at the two courthouses. It is hard to escape the conclusion that this contributed to the failure of the Crown to get this case on the rails, when one considers the following.
[13] On September 22, 2004, Mr. Norris wrote to the Crown at College Park asking for the early assignment of a Crown to this case to permit the conducting of a pre-trial. Not only was this helpful suggestion not adopted by the Crown, but the Crown did not even have the courtesy to reply to Mr. Norris’s letter.
[14] When the case was transferred to Metro West, Mr. Norris dutifully wrote to the Crown there explaining the problem with disclosure, and repeating his request that Crown counsel be assigned to the case. Once again, he did not even receive the courtesy of a reply.
[15] I do not recite these details in order to cause embarrassment. I do so to demonstrate that the Crown failed utterly to fulfill its responsibility to manage this case, which it argues today is a complex one that justifies some leeway in the consideration of the intake period. It is plain that it was mismanagement, and not complexity, that extended the intake period in this case. As a result of that mismanagement, which includes the unaccountable failure to make early disclosure, the unaccountable transferring of the case from courthouse to courthouse, and the unaccountable failure to assign counsel to take control of the case, the preliminary inquiry was not held until November 2005.
[16] Of course, one might say that a delay of seventeen months from charge to preliminary inquiry isn’t so bad in a complex fraud case with eight accused and six defence counsel. A remarkable aspect of this case, however, is the fact that counsel were retained expeditiously, and have exhibited a desire to accommodate the early disposition of the proceedings throughout. At the most, counsel may have waived 28 days of delay in the entire three-year period, and that simply to avoid an appearance at Christmas time following the completion of the preliminary inquiry. The number of accused and the number of counsel has never contributed to the delay in this case.
[17] In addition, I am unable to agree that this case is complex. Crown counsel points to the 3200 pages of documents that form part of evidence that will be adduced at trial. But the reality is that the Crown’s case will consist almost entirely of the evidence of an accomplice, and the reconstruction expert. The documents, although voluminous, are essentially the record of the claims for benefits made by the accused, and supporting documentation. No forensic analysis of these documents was made or required. No investigation had to be undertaken or completed after the charges were laid. The fraudulent scheme alleged by the Crown could not be simpler, and could not be simpler to prove. This is not a complex case.
[18] Following the preliminary inquiry, the first appearance in the Superior Court took place on January 25, 2006. A judicial pre-trial was scheduled for, and heard on March 1, 2006. On that date, the matter was fixed for trial on November 21, 2006.
[19] The case did not proceed to trial on November 21, 2006. The Crown and accused were ready to proceed, but no court was available, and no court became available over the next few days. Ultimately, the case was adjourned to May 22, 2007 for trial.
ANALYSIS

[20] I turn next to my analysis of the factors that must be considered when determining whether an unreasonable delay has occurred.
1. The Length of the Delay

[21] The total time from the date of the charges to the likely completion of the trial is three years. Not surprisingly, Crown counsel acknowledges that the length of delay in this case warrants examination.
2. Waiver of Time Periods

[22] At most, the accused could be said to have waived twenty-eight days.
3. Reasons for Delay

(a) Inherent Time Requirements

[23] As I have already noted, the Crown submits that this is a complex case, and argues that a total of 9.5 months can be attributed to inherent time requirements pre- and post-committal. In reaching this figure, he includes seven months for acceptable intake. As I have indicated, I do not consider this case to be complex. In addition, all of the accused but one were represented by counsel from the first appearance, and exhibited a willingness to move this case along expeditiously. Complete disclosure was in the hands of the Crown from the date the charges were laid, and could have been made available to the accused at the first appearance. The intake period was prolonged by the Crown’s failure to manage the case responsibly. I would conservatively assess the time required for intake as no more than three months and the total inherent time requirements of this case as no more than 5.5 months.
(b) Actions of the Accused

[24] No actions of the accused contributed to the delay in this case.
(c) Actions of the Crown

[25] As I have said, the Crown’s inattention to this case, and its failure to manage the disclosure and the venue responsibly, despite being put on notice by the defence that supervision of the case was needed, contributed significantly to the delay.
(d) Institutional Delay

[26] Institutional delay post-committal beyond what is generally considered to be acceptable also contributed significantly to the delay in this case. The case took eighteen months to go from the order to stand trial to the ultimate date for the commencement of trial. Approximately one month of this period was waived, and a further 2.5 months can be attributed to inherent time requirements, leaving 14.5 months as post-committal institutional delay. This significantly exceeds what is generally considered acceptable. Of this delay, six months can be attributed to a lack of court space. This six month period is particularly significant because the case had already been substantially delayed pre-committal by the actions of the Crown.
(e) Other Reasons for Delay

[27] There are no other reasons for delay.
4. Prejudice

[28] In this case, the delay is of sufficient length to warrant an inference of prejudice. In addition, while the accused have suffered a very limited impairment of their liberty, evidence of actual prejudice has been led. Needless to say, the prejudice suffered by each of the seven accused differs both in its nature, and its seriousness. I do not propose to catalogue it all. It is sufficient to say that the accused have variously suffered real losses of and interference with employment, interference with education, in one case disruption of a family unit, stress, anxiety, embarrassment and stigma, and the inability to locate at least one defence witness of some importance.
5. The “Balancing”

[29] My final task in deciding whether the 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 this case, when I take into account the considerations that I have outlined, I conclude that the interest of the accused and society in a prompt trial outweighs society’s interest in bringing the accused to trial. Regrettably, the delay caused by the indifference of the Crown to the management of what it considers to be a serious and complex case, coupled with delay caused by limits on institutional resources, which in turn caused real prejudice, all in the face of accused who are blameless in contributing to the delay, tip the balance in favour of a termination of these proceedings short of trial.
[30] A stay of proceedings will be entered in respect of all of the accused and all of the charges in the indictment.
[31] I will not end these reasons without saying, in view of what might be seen as harsh comments directed towards the conduct of the Crown, that Mr. Patterson, who represented the Crown before me, was not Crown counsel in relation to this case when any of the conduct of which I am critical took place. On the contrary, before me, he presented the Crown’s position firmly and pressed it to its legitimate strength, but he did so fairly and with complete candour. The public can expect nothing more.

___________________________

M. Dambrot J.

Released: May 25, 2007

COURT FILE NO.: 0614/05

DATE: 20070525

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

AKWASI ANSAH, ANNA BUAKO, PETER NARTLEY, KHANDRA ELEYE, TAM TRAN, AYAN JIBRIL and HANI MUSE

Applicants

REASONS FOR DECISION

M. Dambrot J.
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