R. v. MacIsaac, 2018 ONCA 650

minicounsel

[Indexed as: R. v. MacIsaac]

Ontario Reports

Court of Appeal for Ontario

Watt, D.M. Brown and Huscroft JJ.A.

July 18, 2018

141 O.R. (3d) 721 | 2018 ONCA 650

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Retrials — Clock starting to run for retrial on date appellate court ordered new trial — Net delay just over 19 months if including time trial judgment on stay was under reserve and just over 17 months if reserve time was excluded — Crown not rebutting presumption of unreasonableness if delay exceeded ceiling — Delay while Crown deciding whether to seek leave to appeal to Supreme Court and while trial judge on retrial reserved her judgment at conclusion of retrial not constituting exceptional circumstances — Crown should have summons accused while considering whether to seek leave to appeal — Clock for retrial commencing day new trial ordered not when Crown issuing summons — Transitional exceptional circumstance not applying as delay would have been unreasonable under Morin framework — Accused filing motion to stay proceedings for delay six months before date for retrial — After Crown learning earliest date for ten consecutive days of trial was date already set, Crown should have accepted earlier non-consecutive dates given need to prioritize retrial — Retrial taking place over four years after alleged offence — Delay unreasonable if it fell below ceiling as defence took meaningful steps that demonstrated sustained effort to expedite proceedings and case took markedly longer than it should have — Crown breaching its duty to expedite retrial.

The accused was convicted of aggravated assault. The Court of Appeal allowed his appeal and ordered a new trial. The Crown waited for almost nine weeks before summoning accused to retrial while it considered whether to seek leave to the Supreme Court of Canada. Almost six months before the date set for start of his retrial, the accused applied for a stay of proceedings under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms for unreasonable delay. The Crown ascertained that there was no earlier date available in the Ontario Court of Justice for a trial to take place over ten consecutive days and it took no further steps to expedite the retrial. The trial judge reserved her ruling on the delay motion until the end of trial and then further reserved it for about two months before dismissing that application and convicting the accused. The accused appealed, reiterating his argument that his right to trial within a reasonable time was violated.

Held, the appeal should be allowed.

The trial judge erred in finding that the clock started to run for the retrial on the date when the summons for retrial was issued. The Court of Appeal's order quashing the accused's conviction left him in the position of being a person charged with an offence. Accordingly, the clock should have run from the date the Court of Appeal ordered a new trial. The Crown should have summoned the accused to the retrial while considering whether to seek leave to appeal. It was not necessary to decide in this case whether the period during which a decision is under reserve should be counted in calculating total delay. That issue should be left for resolution in a future case with a fuller evidentiary record and argument. If the time the decision was under reserve was included, the total delay was just over 19 months. If reserve time was not included, the total delay was just over 17 months. There was no defence delay. If the delay was just over 19 months, it was above the 18-month ceiling and was presumptively unreasonable. The Crown failed to rebut the presumption of unreasonableness. Further, retrials should be given priority and, in normal course, 18 months is too long to await a retrial in the Ontario Court of Justice. The nine-week delay while the Crown was considering whether to appeal to the Supreme Court of Canada and the two-month delay while the judgment was under reserve did not constitute exceptional circumstances. The transitional exceptional circumstance did not apply as the delay would have been unreasonable under the Morin framework. If the delay was just over 17 months and therefore fell below the presumptive ceiling, the defence had rebutted the presumption of reasonableness. The defence established that it took meaningful steps that demonstrated a sustained effort to expedite the proceedings and that the case took markedly longer than it should have. Trial defence counsel sought the earliest possible dates for the retrial. The Crown sought ten consecutive days. A ten-day block was not available for one full year from the time the Crown sought to set the date. By simply accepting the trial coordinator's refusal to agree to provide earlier dates, the Crown breached its duty to prioritize the retrial. The Crown should have concluded that earlier dates, although not consecutive, needed to be obtained for this retrial. A stay of proceedings should be granted.

Authorities

Applied:

Other cases referred to:

Statutes referred to:

Proceeding

APPEAL by the accused from the conviction entered on April 18, 2017 and the sentence imposed on May 19, 2017 by Kehoe J. of the Ontario Court of Justice.

Counsel:

Frank Addario and James Foy, for appellant
Katie Doherty, for respondent

The judgment of the court was delivered by

HUSCROFT J.A.:

Overview

1The appellant was charged with one count of aggravated assault arising out of a collision with the complainant during the final seconds of a recreational, non-contact hockey game in a senior men's league in Ottawa. The complainant suffered severe injuries including lacerations to his face, two missing front teeth and a concussion. The Crown's theory at trial was that the appellant delivered a blindside, head-high hit on the complainant with intent to injure him, in retaliation for the complainant's having tripped the appellant's teammate earlier in the game. The appellant argued that his collision with the complainant was an unavoidable accident.

2The appellant was convicted of the offence, but this court concluded that he did not receive a fair trial because the trial judge engaged in impermissible speculative reasoning in reaching her verdict. His conviction was quashed and a new retrial was ordered: R. v. MacIsaac, 2015 ONCA 587.

3The appellant's retrial was not scheduled to take place for over 17 months following this court's order. The appellant brought an application for a stay under s. 11(b) of the Canadian Charter of Rights and Freedoms, but his application was dismissed by the trial judge and the retrial proceeded as scheduled. Following the retrial, the trial judge reserved her decision. She released a 206-page judgment two months later and the appellant was convicted of aggravated assault for a second time.

4The appellant returns to this court and argues that the charge against him should be dismissed for delay. In the alternative, he argues that the trial judge erred in convicting him and that a new trial should be ordered.

5For the reasons that follow, I conclude that the appeal must be allowed, the convictions quashed and a stay entered. As a result, there is no need to consider the other grounds of appeal.

Background

Timeline

6The appellant was charged with aggravated assault on July 11, 2012. He elected trial in the Ontario Court of Justice and was convicted on December 16, 2013, following an eight-day trial.

7On August 31, 2015, this court quashed the conviction and ordered a new trial. The appellant's counsel was served with a summons for the retrial on November 30, 2015. On February 3, 2016, a ten-day retrial was scheduled to run from February 6 to 17, 2017.

8On August 25, 2016, the appellant brought an application for a stay of proceedings under s. 11(b) of the Charter. That application was dismissed on October 26, 2016, and the retrial went ahead as scheduled.

9The trial judge reserved her decision following the last day of trial, which was February 16, 2017, one day earlier than scheduled. On April 18, 2017, the trial judge released her judgment finding the appellant guilty of aggravated assault.

The Trial Judge's Stay Decision

10The trial judge dismissed the appellant's application for a stay of proceedings under s. 11(b) of the Charter. In her reasons, she reviewed the entire proceedings, beginning with the first trial. She found that the net delay on the first trial was 17 months to the end of sentencing, thus below the presumptive ceiling of 18 months established by Jordan, 2016 SCC 27. Similarly, the retrial also was expected to fall below Jordan's presumptive 18-month ceiling.

11The trial judge made the following findings concerning the second trial:

August 31, 2015 — retrial ordered
October 16, 2015 — Crown decides not to seek leave to appeal to Supreme Court
November 6, 2015 — summons for retrial issued
November 6, 2015 to November 30, 2015 — defence delay of three weeks incurred because appellant could not be served due to invalid address
December 1, 2015 — summons served on appellant's counsel
December 2, 2015 to February 3, 2016 — defence delay of one month incurred for adjournment requests concerning the pre-trials and related issues; Crown delay of one month incurred to allow for consultation with complainant
February 3, 2016 to February 6, 2017 — institutional delay

12The trial judge calculated delay from issuance of the summons for retrial on November 6, 2015 until the last day scheduled for trial, February 17, 2017, a period of over 15 months. She did not take into account the time that would be required to write her judgment, which in the event took two months.

13The trial judge subtracted seven weeks of delay that she attributed to the defence, arriving at a net delay of 13 months and one week — well under the presumptive ceiling of 18 months. The trial judge concluded that the defence could not establish that the delay was in any event unreasonable, and so dismissed the appellant's s. 11(b) application.

The Arguments on Appeal

The Appellant

14The appellant contends that the delay in the retrial was over 19 months, and so exceeds the presumptive 18-month ceiling established in Jordan for proceedings in the provincial court. The appellant submits that there are no exceptional circumstances and that a stay should be granted.

15The appellant argues that the trial judge erred in calculating the total and net delay in three ways:

by failing to consider the Crown's obligation to expedite a retrial;
by discounting delay from the time this court ordered a retrial until a summons was issued; and
by misclassifying essential steps in the trial process as defence delay.

16The appellant does not accept that either the period during which the Crown was considering appealing this court's first decision to the Supreme Court or the period during which the trial judge reserved her judgment are exceptional circumstances that should be deducted from the net delay.

17In addition, the appellant argues that the transitional framework for cases already in the system when Jordan was decided cannot save this case because the delay would have been unreasonable under the pre-Jordan case law. The Morin guidelines were that eight to ten months of institutional delay was tolerable: see R. v. Morin. In this case, the time between setting the second trial date and the start of the trial was 12 months. Moreover, the Morin guidelines had to be adjusted downward because this was a retrial, and as a result should have taken place faster than a first trial. The appellant submits that the trial judge erred in looking for proof of prejudice rather than inferring prejudice from the total delay in this case.

18Finally, the appellant submits that the delay was unreasonable even if it fell under the presumptive ceiling of 18 months, because neither the courts nor the Crown fulfilled their obligation to schedule the retrial as soon as possible.

The Crown

19The Crown submits that delay in completing the retrial did not exceed the 18-month presumptive ceiling and that the delay was not unreasonable in any event.

20The Crown concedes that the trial judge should not have deducted seven weeks for defence delay. The Crown accepts that the total delay on the retrial was 19 months, two weeks, but submits that resulting delay was only 15 months, two weeks, once the delay for two exceptional events is deducted. The first is the seven-week period during which the Crown was considering an appeal to the Supreme Court following this court's decision ordering a retrial. The second is the two-month period during which the trial judge's decision was under reserve.

21The Crown submits, further, that even if the 18-month presumptive ceiling established by Jordan was exceeded, the presumption of unreasonableness is rebutted in the circumstances of this transitional case. The Crown contends that although the case was not among the most complex, it was a lengthy provincial court trial and required detailed consideration by the trial judge. The delay was not unreasonable under the Morin guidelines and the Crown took steps to minimize the delay in any event.

Discussion

Overview

22The Jordan methodology has been canvassed by this court in several cases. See, e.g., R. v. Jurkus, 2018 ONCA 489; R. v. Gopie, 2017 ONCA 728; R. v. Coulter, 2016 ONCA 704; and R. v. Manasseri, 2016 ONCA 703. There is no need to rehearse it here. It suffices to say that, in the usual case, total delay is measured from the date the charge is laid to the end of the trial. Defence delay is then subtracted from this period to determine the net delay. If the net delay falls above the presumptive ceiling the delay is presumptively unreasonable, but the Crown may rebut this presumption by establishing that there are exceptional circumstances. Conversely, if the net delay falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. When charges pre-date Jordan, the framework must be applied flexibly and contextually, taking into account the parties' reliance on the previous state of the law.

23Unlike Jordan, however, this case concerns delay in the context of a retrial rather than a first trial. This is no small difference. The Jordan principles must be applied in a manner consistent with the Crown's duty to re-try cases as soon as possible.

24This duty is not new. It was underscored by this court in R. v. Yakymiw, [1993] O.J. No. 2631, in which the court referred to "an obligation to bring the matter to trial expeditiously" following a decision setting aside a stay; in R. v. Satkunananthan, in which the court said that it was "incumbent on the Crown to take all necessary steps to ensure that [a] third trial commenced without further delay" following a mistrial at the first retrial; and in R. v. Brace, 2010 ONCA 689, in which the court emphasized the need to be cognizant of an accused's s. 11(b) rights when setting a retrial date following a mistrial.

25Of course, the Crown is not the only duty-bound actor in the process. As the Supreme Court has emphasized, every actor in the justice system has a responsibility to ensure that an accused is brought to trial within a reasonable time: see Jordan; R. v. Cody, 2017 SCC 31.

26This case was argued on the basis of the parties' agreement that the 18-month presumptive ceiling applies to the retrial, and that the onus was on the appellant to establish that the delay was unreasonable if it did not exceed the presumptive ceiling.

27In my view, the 18-month presumptive ceiling established for a first trial is too long in the circumstances of a retrial. Retrials must receive priority in the system, and in the normal course retrials in the Ontario Court of Justice should occur well before Jordan's 18-month presumptive ceiling. It may be that a lower presumptive ceiling is appropriate for retrials.

28We heard no argument on this point and it would not be appropriate to say anything more in the context of this case. This case was argued on the assumption that the 18-month presumptive ceiling applies, and I propose to deal with it on this basis. However, the Jordan criteria must be understood in the context of the Crown's duty to re-try cases as soon as possible.

29I begin by reviewing the considerations raised by the parties concerning the calculation of delay. I conclude that the delay in this case either exceeds the presumptive 18-month ceiling or is unreasonable in any event. In either case, the appeal must be allowed, and a stay must be granted.

Calculation of Delay

30Jordan provides that delay is measured from the date a charge was laid (para. 47). It does not address the date from which delay should be measured in the case of a retrial.

31The trial judge concluded that the clock did not begin to run until the summons for retrial was issued, November 6, 2015, rather than the date this court ordered a retrial, some nine weeks earlier on August 31, 2015. She erred in doing so. The right to be tried within a reasonable time arises on being charged with an offence. This court's order quashing the appellant's conviction left him in the position of being a person charged with an offence: see R. v. Potvin. Accordingly, the clock should have run from the date of this court's decision.

32When did the clock stop running?

33In the case of a first trial, Jordan provides that the clock runs until "the actual or anticipated end of trial": at para. 47. In the case of a jury trial, the end of the trial is essentially contemporaneous with the rendering of the verdict. If the trial is by judge alone, whether in the Superior Court or the Ontario Court of Justice, there may be a more significant period between the end of the trial and the verdict, when the decision is under reserve.

34The appellant argued that the period during which a decision is under reserve should be counted in calculating total delay, while the Crown argued that it should not.

35Prior to Jordan, the time a judgment was under reserve was typically considered to be part of the inherent time requirements of a case: R. v. Schertzer, 2009 ONCA 742; e.g., R. v. Lamacchia, 2012 ONSC 2583; R. v. Ferguson. However, some judicial delays in rendering a decision were considered unreasonable and warranted a stay. Most notably, in R. v. Rahey, the Supreme Court was unanimous that an 11-month delay to issue a decision on a motion for a directed verdict constituted an infringement of s. 11(b). See, also, R. v. Milani, 2014 ONCA 536.

36The appellant's stay application was heard prior to commencement of the retrial, and the trial judge used the final day scheduled for the retrial — February 17, 2017 — as the end date for calculating total delay. As it happened, the trial ended one day earlier than expected and the appellant was not convicted until over two months later — April 18, 2017 — when the judgment was delivered.

37Jordan did not address whether the time a judgment is under reserve is included in the calculation of total delay and appears to have left the matter open. On the view I take, it is not necessary to resolve the issue of reserve time for purposes of this case, and I would leave the issue for resolution in a future case, with a fuller evidentiary record and argument.

38If the time the decision was under reserve is included, the total delay runs from August 31, 2015 to April 18, 2017 — just over 19 months. If reserve time is not included, total delay is just over 17 months.

39On the Jordan approach, once total delay is known, any delay attributable to the defence must then be subtracted to calculate the net delay: Jordan, at para. 60.

40There is no such defence delay in this case. Although the trial judge attributed seven weeks of delay to the appellant, including three weeks of delay because of problems serving the summons for retrial and four weeks because of adjournment requests concerning the pre-trials and related issues, the Crown fairly concedes that these attributions were in error. The appellant was not responsible for difficulties encountered in serving the summons for retrial, nor did the defence take illegitimate actions in responding to the retrial that caused delay.

41Accordingly, net delay is unaffected by defence delay. It is over 19 months, if reserve time is included; it is over 17 months if it is not. I will consider the matter under both scenarios. As I explain below, assuming the presumptive ceiling is 18 months, the net delay in the first scenario is above the ceiling while the net delay in the second scenario is not. However, the delay was unreasonable under either scenario and a stay must be granted.

The First Scenario: If Delay is Above the Presumptive Ceiling, It is Unreasonable

42Jordan dictates that net delay above the presumptive ceiling is unreasonable unless the Crown can establish the presence of exceptional circumstances that rebut the presumption (para. 47). Exceptional circumstances are events that are either reasonably unforeseen or reasonably unavoidable, and cannot reasonably be remedied by the Crown once they arise: Jordan, at para. 69. As the Crown points out in this case, exceptional circumstances need not be rare: Jordan, at para. 69. Nor did Jordan establish an exhaustive list of circumstances that might qualify as exceptional; on the contrary, the court left the determination of exceptionality to the trial judge's good sense and experience: at para. 71.

43Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases: Jordan, at para. 71. In addition, a transitional exceptional circumstance may arise if, as here, a case was already in the system when Jordan was decided: Jordan, at paras. 94-98.

44A discrete exceptional event must be either reasonably unforeseen or reasonably unavoidable, and something that cannot reasonably be remedied by the Crown once it arises: see Jordan, at para. 69. Discrete exceptional events may include, but are not limited to, medical or family emergencies, the recantation of a witness requiring the Crown to change its case, or the appointment of the accused's counsel to the bench: Jordan, at paras. 72-73; Cody, at para. 49. The delay caused by such events is deducted from the net delay to the extent it cannot be reasonably mitigated by the Crown and the justice system: Jordan, at paras. 73, 75; Cody, at para. 48.

45The Crown submits that there are two discrete exceptional events in this case: the time taken while the decision was under reserve and the time taken to seek leave to appeal the decision of this court to the Supreme Court.

Delay While the Judgment Was Under Reserve

46The Crown submits that time the decision was under reserve was a discrete exceptional event because "[t]he extraordinary length and scope of the trial judge's reasons evidence that a reserve was unavoidable in this case".

47I would reject this submission.

48This was a vigorously contested, multi-day and witness trial. That time is required to provide the parties with reasonably intelligible reasons the trial judge considers sufficient to provide a basis for meaningful appellate review is to be expected. It is not, in itself, a discrete exceptional event, nor does it become such an event in this case by virtue of the length of the reasons provided or the issues involved.

Delay to Consider Seeking Leave to Appeal to the Supreme Court

49The Crown was entitled to seek leave to appeal the decision of this court ordering a retrial and had 60 days in which to do so: Supreme Court Act, R.S.C. 1985, c. S-26, s. 58(1)(a). The Crown submits that the nine-week period during which it considered seeking leave to appeal to the Supreme Court was another discrete exceptional event.

50There is no merit to this submission.

51The decision whether to seek leave to appeal to the Supreme Court is not an unforeseeable or unavoidable event of the sort contemplated by Jordan. On the contrary, it is a routine matter that arises in every case in which an appeal from conviction succeeds. A decision allowing an appeal and ordering a retrial may well be unexpected in particular circumstances by the Crown, but it is not an unforeseeable event on that account. It is always a possibility and the Crown must be prepared to consider its appeal option in every case.

52The duty to re-try a case as soon as possible imposes no great burden on the Crown, even assuming there may be good reason to consider seeking leave to appeal to the Supreme Court in a particular case. It would be a relatively simple matter to take the steps required to set a retrial in train while a leave application is being considered.

The Transitional Exceptional Circumstance

53The Crown further submits that if delay exceeds the presumptive ceiling, it was reasonable in the circumstances of this transitional case.

54I would reject this argument.

55In Gopie, at para. 178, this court outlined the relevant criteria informing the transitional exceptional circumstance analysis, namely: (i) the complexity of the case; (ii) the period of delay in excess of the Morin guidelines; (iii) the Crown's response, if any, to any institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused.

56These considerations do not avail the Crown in this case. This was a relatively straightforward case, as I have noted, and the delay would not have been reasonable under the Morin guidelines. I accept that the Crown took some steps to minimize the retrial delay, but ultimately it stuck with its request for ten consecutive trial days, knowing from information provided by the trial coordinator that this meant pushing back the trial date one full year. This was simply inappropriate in the context of a retrial involving a charge that had been laid in 2012 — over four years earlier.

57In summary, the delay in this case is not affected by either exceptional circumstances or transitional exceptional circumstances. If time under reserve is included in the calculation of delay, then the net delay is over 19 months and exceeds the presumptive ceiling. The Crown has not rebutted the presumption of unreasonableness. On the first scenario, the delay is unreasonable and a stay must be granted.

The Second Scenario: If Delay is Below the Presumptive Ceiling, It is Unreasonable

58Under the second scenario, in which the time under reserve is not included in the calculation of delay, the net delay is over 17 months. In my view, even under this second scenario where the burden is on the defence to show that the delay is unreasonable, a stay is required.

59As a preliminary matter, I reiterate that retrials must receive priority in the system, and that this should normally result in a delay well under the 18-month presumptive ceiling established in Jordan. However, as I indicated above, this appeal was argued on the basis of the parties' agreement that the 18-month presumptive ceiling applies, and I will resolve it on this basis.

60When delay falls below the presumptive ceiling, the onus is on the defence to establish that the delay is unreasonable despite not exceeding the ceiling: Jordan, at para. 82. The defence must establish (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer than it reasonably should have.

61The defence burden is met in the circumstances of this case. The record reveals that appellant's trial counsel sought the earliest possible dates for the retrial. For its part, the Crown sought ten consecutive days for trial. That was a choice it was entitled to make, but it was a choice with consequences. Large blocks of time will often be unavailable when setting trial dates, and in this case ten consecutive days were not available, according to the trial coordinator, for one full year from the time the Crown sought to set the date.

62On August 9, 2016, after the appellant filed his application for a stay, Crown counsel informed the trial coordinator that the appellant had filed the stay application and inquired as to the availability of an earlier date. However, the trial coordinator informed Crown counsel that no earlier date was available for a ten-day trial, and the Crown took no further action.

63In these circumstances, it is no answer to the appellant's delay argument that the trial coordinator would not agree to provide earlier dates. The Crown cannot simply take no for an answer in the context of a retrial. A greater sense of urgency is required, lest the culture of complacency the court warned of in Jordan be condoned.

64The Crown's duty to re-try the appellant as soon as possible meant that the Crown could not maintain its preference for consecutive trial dates. It had to make whatever arrangements were necessary to commence and complete the retrial as soon as reasonably possible, even if that required accepting trial dates it considered suboptimal.

65The bottom line is this: this was retrial on an aggravated assault charge that was over four years old. The appellant was already put through one trial and faced another. His retrial should have been prioritized, but it was not. The consequence is that the appellant's right to be tried within a reasonable time has been breached.

Conclusion

66I would allow the appeal, quash the conviction and enter a stay.

Appeal allowed.

End of Document

Case Summary

Authorities

Proceeding

Overview