New & Notable: Prejudiced? Prove it.

On July 25, 2002 Ching “Billy” Law was attacked at an internet café called Virtual Domain.  The main perpetrator was a young offender, SE.  SE had a machete and in his attack almost severed Law’s hand.  The attack involved several other men.  Lau and Li were alleged to be two of them.


Prior to trial the accused brought a motion for a stay of proceedings based on unreasonable delay.  The motion was dismissed.  They appealed.  That ground of appeal was dismissed (although the appeal against conviction was allowed on other grounds): 2012 ONCA 291. 


The impugned time frame included 19 ½ months between the charge date and the commencement of trial.  The time was broken down as follows by the trial judge:
(1) initial inherent intake period from March 25, 2003 – June 13, 2003: 2.66 months; (2) Crown delay with disclosure from June 13, 2003 – October 2, 2003: 3.5 months; (3) systemic requirements from judicial pre-trial, October 2, 2003, until committal for trial following the preliminary hearing, May 11, 2004: 7.25 months; (4) inherent intake in the Superior Court from May 11, 2004 – June 17, 2004: 1.25 months; (5) systemic time to schedule Superior Court trial from June 17, 2004 – November 8, 2004: 4.75 months. Subtracting the inherent intake periods, the total time attributable to Crown and institutional delay was 15.5 months [para 8].
On appeal the accused did not challenge this breakdown but contested, inter alia, that the trial judge erred by discounting the alleged prejudice.  The accused had filed affidavits setting out some alleged prejudice which was summarized as follows:
The appellants’ bail conditions amounted to very strict house arrest which did not make an exception for work or education. As a result, the appellants were not allowed to work, to earn any money, or to socialize at all. Mr. Lau’s affidavit (sworn on information and belief by a student in his counsel’s office), stated that he was obliged to give up a computer business from which he earned some money and that he had no money for a bail review application. Family events were also cancelled or re-arranged because he could not leave Ontario. He could not go to school, and had no social life over the entire period. Mr. Li had to give up doing odd jobs for cash, and as a result also had no money for a bail review application. He had gained weight because he was housebound and had not been able to travel to the United States when his grandfather was dying. His family relationships were also strained because of the confinement [para 10].
The trial judge rejected these claims of prejudice on the basis “they were not substantiated by any details…” [para 11].  The accused assert this was not open to the judge to do.  The Court of Appeal disagreed:
The trier of fact is not obliged to accept any evidence tendered before it…The trial judge gave his reasons for disbelieving the affidavit evidence tendered by the appellants on the issue of whether they suffered actual prejudice by being prevented from working and going to school by the terms of their restrictive bail conditions. He relied on the fact that no details were provided regarding the work that the appellants were unable to do or an educational plan that was thwarted. The trial judge was entitled to require some proof of what was being asserted, particularly on a motion for a stay of proceedings where the issue of actual prejudice is an important component of the analysis [para 13].
The court noted that nonetheless, the trial judge did recognize a “moderate degree” of inferred prejudice due to the restrictive bail.  This prejudice, however, was not sufficient, in the circumstances, to establish a violation of section 11(b).