WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice Old City Hall, Toronto Region
Between:
Her Majesty the Queen
— and —
Nicodemus Crant
Application Before: Justice R. Shamai
Heard on: December 9, 2016
Reasons for Ruling released on: January 26, 2017
Counsel:
- Mareike Newhouse — counsel for the Respondent (Crown)
- Greg Roberts — counsel for the Applicant, Mr. Nicodemus Crant
Reasons for Ruling
SHAMAI, J:
Introduction
1Mr. Crant seeks relief under Section 11(b) of the Charter, alleging that the four years, 9 months and 9 days between the days he was charged until he was to be sentenced amount to an unconstitutional delay. The delay is most unfortunate, and the manner in which the time unspooled is in many ways unusual. As at the day he placed his motion before the Court, August 24, 2016, the elapsed time certainly exceeded the ceiling newly set in place by the Jordan case. The facts and the law demonstrate that the delay, however, was not unreasonable, as the law instructs me.
2Nicodemus Crant was charged on November 15, 2011 on six counts of child pornography offences, and related offences. I found him guilty on February 23, 2016 on one count of possession of child pornography and one count commonly known as "luring". The interactions in question occurred in August 2011 and during the following months. Apart from a brief encounter on the street of a semi-rural community in Newfoundland, the activities which I found to have occurred, in my judgment dated February 23, 2016, were all via internet and telecommunication. There was no physical contact involved between Mr. Crant and the young person.
3I set this out at the outset, as I did in detail in last year's judgment, in order to set the context at some baseline of seriousness of offence. Although this sex offence against a young adolescent male did not involve touching, I do not minimize the seriousness of the offences: one count of possession of child pornography and one count of luring. This plays some role in the analysis of the Application.
4As will be immediately apparent, the timing of the Application is itself unusual: it was brought on August 24, 2016. That is the date when I anticipated proceeding to sentence. After the February 23 convictions, a number of factors, which will be detailed shortly, delayed sentencing. As is well-known, the Supreme Court of Canada issued its decision in Jordan on July 8, 2016. Six weeks and five days later, on the sentencing date, counsel brought the present application. There is no issue, in my view, that the application may be brought at any time before the trial judge, before the passing of sentence (R. v. MacDougall, [1998] S.C.J. No. 74). Nonetheless, it does add a few layers of detail to the application, not the least of which being my first-hand knowledge of the elapse of time, and my findings in the reasons rendered eleven months ago.
5A previous 11(b) application was decided first in favour of the Applicant, and a stay was entered. The stay and the underlying decision were then reversed on appeal. Clearly I am bound by findings of fact by the Summary Convictions Appeals Court, a decision of The Honourable Justice Goldstein. That decision was rendered on October 29, 2014. Thus I consider the manner in which the time was consumed between April 27, 2015 and August 24, 2016. I review the events taking me from August 24, 2016 to January 27, 2017. I consider the events preceding the trial I conducted. I consider the impact of the Jordan framework, in this case, clearly captured by the category of transitional cases where the total elapsed time exceeds the presumptive 18 months to trial in a provincial court. That framework of analysis encompasses the time considered by Justice Goldstein, on the appeal. His characterization of the elapse of time to October 29, 2013 is binding on me, in my view.
6I cannot leave my introductory overview without flagging an issue which will become quite apparent in the detail of the history, and that is the manner of representation. Mr. Crant has been represented by the same counsel from the inception of the case. In my court, counsel has pointed out two things about his involvement, repeatedly: one, that he is acting pro bono for Mr. Crant, and second, that his practice is not a criminal practice, and so is inexperienced in criminal litigation. Clearly, his commitment to his client is significant. However, the trial tactics negatively affect the amount of time required by this trial, at several junctures.
Framework for Analysis Under Jordan
7From paragraph 46 of the decision of the Court in Jordan, a "new framework" sets up a
"ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court…. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow".
8Clearly the Court wanted to avoid the massive stays of proceedings which followed the abrupt change of direction triggered by the release of the Askov decision in 1990. The administration of justice cannot tolerate a recurrence of what transpired after the release of Askov, having regard to the massive stays which resulted. Transitional considerations have been set out, to promote a contextual application of the framework with a view to ensuring that the post-Askov situation is not repeated. The Court in Jordan contemplates a specific framework for cases in the system to which a new look at 11(b) might be warranted. At paragraph 96, the court says, that while the new framework, including the presumptive ceilings, applies to cases currently in the system, it is subject to two qualifications:
"First for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed"
9Clearly that is the rubric into which this case fits.
10I do note, before examining other analytic tools to be applied, a caveat made by the Court at paragraph 102:
"Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. Change takes time."
11The Court refers to a passage from the Mills case, [1986] 1 S.C.R. 863, a comment of then Justice Lamer of the Supreme Court of Canada, when an 11(b) case first presented itself for consideration by the highest court. In a nutshell, His Lordship observes:
"In other words, it would be inaccurate to give effect to behavior which occurred prior to this judgment against a standard the parameters of which were unknown to all"
12The Court in Jordan continues:
"For cases already in the system, the presumptive ceiling still applies; however"the behavior of the accused and the authorities" – which is an important consideration in the new framework – "must be evaluated in its proper context" (Mills at p. 498). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance." (emphasis added)
Two features of this case warrant comment before examining the factual context here.
13First, as noted above, this is a matter which was subject to a previous stay by way of relief on an 11(b) ruling, initially favourable to the Applicant, but ultimately reversed on appeal. The elapsed time from the hearing of the Application, to Justice Cavion's ruling a stay, through the time of the appeal until the ruling, does not count against the Crown or the institution. Bringing the Application was a defence motion. Until proceedings were revived, upon Justice Goldstein's ruling, Mr. Crant was not a person in jeopardy, or, in the words of the Charter"charged with an offence". (R. v. Potvin, [1993] S.C.J. No. 63)
14Second, Mr. Crant is, at the time of this application, in fact no longer a person charged with an offence. He does not enjoy the presumption of innocence. I found him guilty on two counts of criminal conduct last February. However, the law sensibly recognizes that the "exquisite agony" of a person enduring the vicissitudes of uncertainty pending final disposition, by way of sentence, attract the protection of Section 11(b). That process must not be unreasonably delayed. (R. v. MacDougall, [1998] S.C.J. No. 74, paras. 28–39). Society has an interest in a timely end to the prosecution, and the ends of sentence, in most cases, are best accomplished when proximate in time to the commission of the offence. The offender continues to be entitled to have his proceedings completed in full, within a reasonable time. Particularly as the factors determining unreasonable delay have changed, with the Jordan decision, the nature of the liberty interests affected no longer require so close an examination in an allegedly unreasonable delay after conviction but pre-sentence, as might have been appropriate in the previous approach.
The Factual Backdrop
15In light of the above noted features of this case, I start my examination of context not at the date of charge, as Justice Goldstein has ruled that period to not be an unreasonable delay. I may refer to some of his findings in the final analysis, however.
16The Summary Convictions Appeals court remitted the matter for re-trial on October 29, 2014.
17November 20, 2014 was the first appearance back in the Ontario Court of Justice to set date. No transcript is available for that date: I am advised that the audiotape has been lost. A trial verification form (TVF) does reflect the selected date of April 27 as the first of four days to be set down for trial. Although the TVF typically reflects earlier dates when counsel indicated their availability for trial, no such dates are noted on this form. A judicial pretrial is noted on the form; to the best of my understanding, this was the judicial pretrial which took place on December 6, 2012 before Justice Green, prior to the first 11(b) motion and trial dates being set.
18It is significant that no further judicial pretrial was conducted prior to the dates for trial being confirmed in court on November 20, 2014. I note that in his reasons on the Crown appeal from the 11(b) ruling, Justice Goldstein expresses his view that four days appeared to him to be an excessive amount of time for this trial. As well, no motions were noted for argument, apart from the 11(b), which was scheduled ahead of the trial initially and not set down again, on November 20. I conclude on the evidence available to me that both counsel were content that the four days available from April 27 were both a sufficient time, and at the earliest available dates to both parties and the Court.
19April 27 was in fact the day the trial commenced before me. For reasons never expressed clearly on the record, a number of concessions which had been made at the original JPT were withdrawn. As well, a series of statements were made by defence concerning disclosure and "hidden evidence", intimating that Charter applications and possible abuse of process motions were to be brought. No notice of motion was before the court. Crown had not been alerted to such. At this point, counsel drew to the attention of the court his lack of familiarity with criminal courts and process.
20In order to ensure that the trial stayed on track, I inquired whether one of my colleagues might be available to conduct a judicial pretrial, immediately. Justice Borenstein assisted. The initial concessions were revived, and counsel advised in chambers and on the record that no Charter issues were to be litigated, specifically in relation to "deleted" evidence.
21At 12:45 p.m. that day, we were ready to commence the hearing of evidence. With the benefit of hindsight, this delay was clearly caused by the uninformed and untimely actions of the defence.
22The testimony of PND, the complainant, commenced that afternoon. Thirteen at the time of the incident, PND was 16 years of age when he testified. PND and his mother were the two civilian witnesses for the Crown in this matter. His testimony in chief extended from Monday afternoon, to Tuesday. Although counsel had indicated on the record on Monday that he would only have a few questions in cross-examination, he now indicated that his cross-examination would require two to four hours.
23PND and his mother had flown in from Newfoundland, and their attendance was timed to permit Ms. J., the mother, to return to her family responsibilities to younger children while her partner flew to Western Canada on business. The Court urged Crown to extend the witnesses' stay in Toronto to accommodate the projected cross-examination. This was done, with a new departure date of April 30.
24However, difficulties with the young witness began to emerge by the end of that second morning. In fact, without assigning blame to the young witness, his health issues contributed to the elongation of proceedings, such that in all, his testimony was not completed until November 19, 2015. The further difficulties associated with this delay will be examined in due course. Due to PND's difficulties, the completion of his cross-examination was deferred until the following day and Ms. J. commenced her testimony. Whether this is a "discrete event" in the legal language, an unanticipated extraordinary circumstance, or one which the Crown ought to have anticipated and made allowance for, in advance, is a question to which I will return.
25Another unexpected event occurred by the end of Day Two of the four day trial, on April 28. Counsel had agreed to the four day estimate, well before the trial commenced, and confirmed it on April 27 with Justice Borenstein, saying there would be no motions brought. Defence counsel announced his intention to bring a motion for mistrial. The Court required the evidence to continue. The following day, again, prior to the completion of evidence, and with no motions filed, counsel again indicated he had motions in the nature of Charter applications for disclosure, and mistrial applications, due to what he termed (as at the start of the trial) "destroyed evidence". He referred to "deleted chats". He was directed to hold his motion until the completion of the evidence of the civilian witnesses, and of the officers, in order for there to be some orderly flow to the evidence, especially with the challenges presented by the civilian witnesses, and the absence of a formal motion, as well as the undertakings placed on the record. The basis for a mistrial was never made clear to this Court.
26Ms. J.'s testimony was completed on the third day set for trial. PND recommenced his cross-examination, but once again expressed considerable discomfort. I understood it to be a possible migraine, exacerbated by the lighting in the CCTV room, where he gave his evidence. As well, I had concerns, given what I was advised, that there was a possible attention deficit issue.
27Once again, by end of day, Counsel referred to motions he would be bringing, regarding "the computer issue"; "the deleted chats"; the "Stinchcombe issue", based on "substantial destruction of evidence". No motion was filed, not on a Charter issue nor a mistrial or anything else. No reason was expressed by counsel for the departure from the position stated in the judicial pretrial or case management meeting with Justice Borenstein, days before.
28Half a day was lost the following day due to a conflicting court engagement, to which defence counsel had committed. That day, April 30, given the issues raised in the face of the eleventh hour judicial pretrial (perhaps more properly called case management) meeting on the first day of trial, I urged counsel to meet again with Justice Borenstein, as the likelihood of completing the trial within the allotted time was nil. The Court had been able to arrange to continue the trial for most of the following day, May 1, although it had not previously been scheduled. Crown had a competing previous commitment for part of the day, about an hour and a half in the morning and the Court day commenced at 11:30 a.m.
29The day's evidence commenced with the continued cross-examination of the lead officer with Toronto Police in the matter, Det. Shawn Marshall. The direction of the cross-examination, apparently tangential to the trial issues, once again caused inquiry by the Court. Still no motions had been filed.
30A further meeting with Justice Borenstein was conducted, in the nature of case management, on May 11. In light of the note, which Justice Borenstein provided, and which has been attached to the information, a number of issues were voiced on the record: His Honour's concern that no meaningful review of disclosure had been conducted by counsel, and that a motion must be filed in relation to issues raised by defence. A lengthy discussion ensued on the record about whether the admissions made with Justice Borenstein could be relied on, and what the Crown's case, absent admissions, would entail. Despite undertakings that no motions would be brought in the matter, counsel seemed intent again on bringing motions. Crown presented an eminently flexible position in relation to the procedural requirements of putting the motion before the Court.
31After extensively reviewing the possible shape a motion might take, and what basis it might have, and what bearing counsel's other court matters or experience as a lawyer might have on the conduct of the present trial, the Court agreed to not take the evidence that day of the young witness, who was back in Newfoundland but available by remote link to give evidence. This was because Counsel indicated his cross-examination would be more focused and possibly less intrusive if he was able to cross-examine the Crown's expert on the issues underlying various motions, which he expressed a wish to bring.
32It was plainly Counsel's position that he would frame the motion he was exploring and put it before the Court for May 19. This would at the very least permit Crown to know what issues it had to be alert to, and cover in the evidence. That date was scheduled as vacation for the Court, for me, but a courtroom was available, and I made myself available in order to move the matter along.
33I took the extraordinary step, as the record of May 12 shows, of advising Mr. Crant that his lawyer's conduct of the trial was clearly bringing him into an area where he did not have expertise and that he might want to enlist the assistance of a criminal law specialist, as the trial was ultimately about his own interests. I indicated that the conduct of counsel was not such as to require the drastic measure of asking counsel to remove himself from the record, but that the defendant might want to ask his lawyer to get input from a criminal lawyer.
34May 19, no motions had been served on Crown and filed with the Court. Materials indicating, among other things, a Constitutional Question were placed on the dais when I walked into court. Within the materials, there was no clear statement as to the nature of the alleged breach or the remedy that was sought. Once again, the hearing stood down in order for counsel to discuss together the nature of the issue that was to come before the Court.
35On the record again, the seemingly ever-flexible position placed on the record, concerning the admissibility of police reports, was then withdrawn then re-asserted. Then it blew up again. Crown decided to proceed on the basis that the reports were not conceded to be admissible, thereby undertaking to prove their admissibility.
36One half day court time was consumed in this fashion.
37Despite the two last minute case management meetings with Justice Borenstein, on April 27 and May 12, and the lengthy exhortation in court on May 12 and May 19, no proper motion was before the court. Nonetheless Crown agreed to call the evidence it had anticipated calling, from Sgt. Manoharan of the Toronto Police Service.
38Further dates were scheduled in August, accommodating the various vacation schedules of counsel and the Court. The dates were set in a courtroom which was best equipped to receive evidence by remote link and arrangements were made with the support services at the Courthouse for that purpose.
39On August 12, Sgt. Manoharan testified.
40On August 13, PND was cross-examined on the "motion". The motion raised a Charter infraction in relation to materials which were allegedly destroyed (with reference to "apps" and messages said to have been on phones and laptop computers) either prior to their being seized by police, or destroyed and never seized by police.
41August 21, this Court issued written reasons dismissing the motion. Four additional dates were secured for the purpose of continuing the cross-examination. Arrangements were made to ensure that he would have the transcripts of his evidence in chief, in order to refresh his memory, and in the event that any issue with contradiction arose. The elapse of time from April 27, when counsel indicated that he would not be bringing any Charter motions, to August 21, when the motions he did bring were disposed of, was a delay occasioned primarily by Defence action.
42November 10, 2015 was the next date for continuation of the trial. The young witness was in a different time zone, at a police detachment in a different town, which itself required hours of driving through difficult terrain and weather by the witness and his parent, in a different province, without the support services generally provided in this courthouse. It appeared that there was little or no communication between Crown's office and the authorities in Grand Falls, where the witness was. It was unclear who was assisting the witness, even in the basic ways that a courtroom clerk would do in Toronto, by managing the material to be placed before the witness, or advising the witness of the time to return from breaks. Certainly there was no support service, as the Victim Witness Assistance Program provides in this Courthouse. This became critical, as the witness was asked questions, which required him to refer to transcripts. He had not had this opportunity, and was given time to review the passages over the lunch recess. Somehow, he was not given the transcripts over the lunch, through the faulty co-ordination with authorities, specifically, with whomever was holding the transcripts, at the location where he was. A further recess was granted upon the Court being advised of this. The material was retrieved for him. However, the young witness, by this time 17 years old, was not prepared to participate farther in the court's process. He did not return as instructed, and with some considerable logistical difficulty, was located and returned to the video room a short time after instructed to do so. He testified that he was no longer willing or able to participate by answering questions.
43Once again an adjournment was granted, to give the witness a better opportunity to attend in a prepared and rested condition. Due to his own health issues, referred to earlier, and the long days of travel to get to the ill-supported locations, some considerable distance from his home, taking his evidence presented unforeseen challenges.
44On the return date of November 19, the videolink setup gave problems, for reasons that were never fully understood by me. I note that we had the "high tech" courtroom at the Old City Hall, where videolink evidence had been taken in other proceedings for years, from different jurisdictions around the world. We had the assistance of the dedicated and trained support staff. The nature of the setup at the other end, and the support in place for the system was something over which this Court had little control. No doubt arrangements were made in good faith by the Crown, but they were made without a thorough understanding of the witness, nor of the logistics of the attendance required in Newfoundland. Concerning the witness, it is possible that the Crown, prior to the April appearance, had not known of his personal health issues. One would have thought that preparatory interviews of the young person and his mother might have brought them to light prior to the April trial appearance. At the very least, Crown had to be well aware of the witnesses' issues and special needs once his testimony was being adduced by remote link.
45That same day, November 19, the defence case opened with Mr. Crant's testimony in chief. The defendant was cross-examined on November 30. Evidence was taken by remote link from his mother, who was in a small village in Newfoundland. The evidence was taken by Skype, and although no objection was raised, the witness was not in a courtroom or other court-supported location; there was no official presence accompanying her on location. We only had an audio link, and given the witness's age-related hearing deficits and possibly cognitive issues, the quality of the evidence was limited.
46On December 1 and 10, submissions were heard. The Court was prepared to give reasons for judgment after the holiday break, but counsel were unavailable until late January. The matter was adjourned to February 12. Unfortunately I was ill that day and unable to attend at court. A further adjournment was required until February 23.
47On that day, reasons were rendered, with two findings of guilt in the result. Counsel sought a presentence report, something endorsed by Crown and the Court. Crown referred to the fact, which had emerged in the course of the trial, that Mr. Crant was a man of Aboriginal heritage, and that the Court ought to take into consideration factors in that regard. The device of a "Gladue Report" was discussed, as a vehicle to make that information available. The Court left the decision to the defence. Sentencing was adjourned to April 25.
48Although defence decided to order the report that was not done until April 8. On April 25, Jonathan Rudin, programme director at Aboriginal Legal Services advised in writing that due to the date of initiation of the request, that the report would be provided to counsel by June 11. Sentencing was therefore adjourned to June 15.
49On the return date of June 15, the Gladue Report was not ready. The writer of the report advised that a further seven to ten days would be required. Although that would have meant the report was ready by the third week in June, counsel discussed dates after August 24, due to vacation dates both of counsel and the Court. June 24 was set as an interim date to confirm the receipt of Gladue report.
50On June 23, the Gladue Report was received. As a continuing matter to which I had been committed on the earlier date had now collapsed, I advised counsel on June 23 that I was prepared to address sentence on June 24. Crown was available for 2 p.m. on June 24, but defence was not.
51I note that on both April 29 and June 24, Crown took the unusual step of appearing both as agent for defence counsel and on behalf of the offender.
52As indicated, on August 24, the present motion was placed before the Court. It reflected the change in the law arising from the Jordan decision. That decision, as is well known, was released on July 8. Counsel did not bring his motion or order any transcript material until late in August.
53I note that as with previous "motion" material, the documents put before the court showed a careless lack of regard for the rules of the court as to time of filing, manner of service and filing, content and even as to the jurisdiction of the Court. They were styled in the "Metropolitan Toronto Region", a conflation of the name of the previous (until 1999) municipal organization, which was never a juridical designation, and the present "Toronto Region". They purported to raise a Constitutional Question, as with previous filed material, which would trigger service on the Attorney General for Canada and the Attorney General for the province, and require the Court to know of the participation of those entities – although no such issue was in fact being raised. They showed service on the Provincial Prosecutor, which is not the body responsible for prosecuting criminal offences in the Province of Ontario. Surely, if through lack of understanding or familiarity with criminal prosecutions, Mr. Roberts was previously unaware of the identity of the prosecutorial arm in criminal matters in the province, his lengthy and extensive exchanges of materials with Crown would have made it plain to him that the Crown Attorney for each Region prosecutes, through the Assistant Crown Attorney's who generally act on criminal matters. This persistent disregard for the process characterized Mr. Roberts' approach to the proceedings throughout.
The Calculation
54While it is clear that Mr. Crant has been waiting for the completion of his trial since the charges were laid on November 16, 2011, until the waiver of delay on August 24, 2016, the calculus of unreasonable delay is nowhere as simple as to say that amounts to 57 months and 9 days:
"… the presumptive ceiling … is not the end of the exercise: … compelling case specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling. Obviously reasonableness cannot be captured by a number alone." (Jordan para 51; emphasis added)
55Clearly, in the Jordan framework, this is a "transitional" case: "A judicial change in the law is presumed to operate retroactively and apply to past conduct" (Jordan para 93). Tried in the provincial court, the Ontario Court of Justice, this case is subject to the presumptive ceiling of eighteen months. However, in assessing the elapsed time"a transitional exceptional circumstance will apply when the Crown satisfies the Court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice" (Jordan para 96)
56Clearly, the burden shifts to the Crown in this case, to show why the delay in excess of that ceiling is nonetheless reasonable – where the delay MINUS DEFENCE DELAY is nonetheless reasonable. Exceptional circumstances may be found, as the law per Jordan describes them, to further reduce the number to be considered in the reasonableness calculus. Reliance on the law as it existed for the duration of the majority of the delay complained of here will be a factor in the analysis of unreasonable delay, as the first exceptional circumstance. The second exceptional circumstance, where moderate complexity marks the prosecution in a jurisdiction with significant institutional delay problems, cannot be said to apply to this case, nor was it argued.
57With this, I would set aside the following periods of time as not amounting to unreasonable delay for various reasons:
From the date of the laying of the information, November 16, 2011, until October 29, 2014, when Justice Goldstein reversed the stay entered by Justice Cavion, the time must be regarded as neutral. A determination was made by the Summary Conviction Appeal Court, Justice Goldstein that the time adjudged to be unreasonable on the 11(b) application before Justice Cavion was in fact wrongly decided, and the delay was not unreasonable. During the time after the stay was entered by Justice Cavion until the appeal decision remitted the matter to be tried, Mr. Crant was not a person charged, in the meaning of Section 11 of the Charter of Rights. While the matter was under appeal, the 11(b) clock did not run (Potvin, supra). Thus during the above noted period, some 154 weeks, and 5 days (3 years less 19 days) the delay must be considered as neutral and deducted from the overall calculus.
The information was returned to the set date court at Old City Hall in three weeks. No complaint is made of this period of time; it appears to me to be a reasonable inherent delay, required for the trial of the matter.
Once returned to the Old City Hall for trial in the Ontario Court of Justice, counsel wasted no time in setting a date for trial. The evidence shows that the first agreeable date was selected, and that based on a judicial pretrial conducted prior to the first trial, four days were set. Although Mr. Roberts complains that the defence had no voice in setting the date, his agent had attended on the judicial pretrial meeting with Justice Green and the four days were agreed as a generous trial estimate. No further judicial pretrial was conducted prior to setting the retrial. This is apparently the practice at the Old City Hall, and given my experience with this case and others, I have urged a change in the practice. I will note however, that notwithstanding the routine practice at the time, relying on the previous time estimate even after a new trial is ordered, the door to the judicial pretrial process is certainly not barred to counsel, returning to the Trial Co-ordinator to set date. The Trial Verification Form in this case, endorsed by the then Acting Trial Co-ordinator Lena Papadopoulos, shows the 4 day trial set with no notation of earlier dates being offered or available to one party and not the other. Thus I note the 5 months and a week prior to trial as being an acceptable elapse of time, necessary to the process.
58The more difficult analysis begins with the first day of trial. As evident from the detailed review of events earlier, the estimate of four days for trial, notwithstanding the comments both of Justice Goldstein and the first trial Crown, that two days should be sufficient to try the matter, was grossly insufficient, given subsequent events that could not reasonably have been anticipated by the summary conviction appeal court or indeed anyone other than perhaps the defence. As is evident as well, this is in part due to the failure by defence to file motions as required by the rules, and to account for the time required by those motions in setting trial time. Even accepting a position advance from time to time by defence, that an abuse of process motion ought to be heard at the end of the trial, the lack of clarity, the time taken up with attempting to clarify what if anything the continued rumblings about various motions might mean to the proper conduct of trial took up an enormous amount of court time. This court time was eroded as well by the efforts through eleventh hour judicial pretrial and case management involvement arranged by myself, the Trial Judge, with a view to the fair and orderly disposition of the charges. Notwithstanding positions taken in chambers with Justice Borenstein, reduced to writing by him, read into the record, and appended as handwritten memo of the chambers discussions, the intent of the defence wandered far from its stated course. This may happen, certainly in the course of a trial. However, this was a repeated pattern of conduct by the defence. As Trial Judge I took the unusual measure of cautioning Mr. Crant that with his counsel's much touted inexperience in criminal matters, he would do well to direct his lawyer to seek the advice of a criminal law specialist. Whatever happened between lawyer and client, I know not, but Mr. Roberts continued in his idiosyncratic way to conduct the trial, unguided by the rules of the Court, the agreements made and placed on the record with a case management judge, and the exhortations of the trial judge to conduct the trial in an orderly fashion according to the rules and the fundamental rules of fairness. Crown took a most lenient position in the face of this conduct, not relying on timely service or even written notice of motions, just some rough idea of what was to be argued. Crown even went the distance of appearing as agent for counsel and the defendant on various interim appearances. It was not for want of the Crown's will to complete the case in a timely and fair way that so much time was consumed in completing the trial.
59Were it not for the position of the Crown, in attempting to bend the rules and accommodate the efforts of counsel to assist, albeit in an area of law to which he claimed to be a stranger, I would think the applications and erratic requests of counsel might be considered the "deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, para 63). Had I characterized them as such at the time, I ought perhaps to have dismissed them out of hand. However, I gave great leeway to counsel, to accommodate his inexperience. I am not convinced, reviewing the record, that inexperience in criminal law is the only explanation for this meandering fuzzy course of litigation. One thing I am clear on, the defence conduct of the trial was responsible for much of the delay from April 27 until December 1, 2015.
60The Crown was not without stumbling blocks in its presentation of the case, and to some extent these appear to have been avoidable. I understand that the young witness lived in Newfoundland, in a somewhat remote community, which I learned is the only First Nations reserve in Newfoundland. I understand that while it was the local RCMP which initially investigated the matter, up-to-date interviews with PND had not been provided prior to the young man's arrival with his mother in Toronto, for trial on April 27. I have not been advised of the state of understanding of the Crown of the challenges faced by the witness, in terms of the ADHD and migraines he experiences, and which in my view compromised the efficient use of trial time. I do note that in the Victim Impact Statement filed with the Court, his mother referred to the ADHD, and during the course of the trial was apparently able to name the problems which seemed to make the ordeal of testifying more challenging.
61The taking of evidence by remote link seemed like the best way to not further disrupt the young person's life, allowing him to remain in his home province. It seemed particularly fair, as we were employing CCTV in any event, and so, whether in an adjoining room or a province a few thousand kilometres away, his presentation to the Court should have been the same. What was apparently not taken into account was the distance and the road conditions in getting to the appointed place for the technological setup, and the absence of effective support, even in the most rudimentary way, for the witness. No informed or responsible and neutral person appeared to be guiding PND through the process, nor was he assisted in using the transcripts which were produced for him to refresh his memory. Exacerbating all of this is the fact that this is a teenaged person, thirteen years of age at the time of the incident, 16 when the trial began and seventeen when he completed his testimony. Our courts have, in recent decades, taken very specific steps to accommodate young people and children in testifying, recognizing the peculiar emotional and memory issues which typify the adolescent and younger years of development. If any of this factored into the Crown's assessment of how to take the evidence, it was not communicated to me. In this case, the imposition on the witness was made worse not only by the circumstances particular to him and to any one of that age, but as well, because his mother was the Crown's witness, and in any event was not about to let her son travel out of province and out of the small centre which was home, to participate in the trial process. Both in coming to Toronto, and extending the stay here, and in facilitating the taking of evidence by remote link, the imposition on the lives of PND's entire family has been negatively impacted. Significantly.
62Should the Crown be assigned responsibility in the delay analysis for the extra time required to complete PND's evidence, due to the difficulties he experienced both in Toronto and in making himself available by remote link, and in arranging that remote link? I should think that in some measure the Crown must take responsibility. The needs of a witness ought to be known in advance. Those issues must be taken into account in assessing a trial estimate.
63The institution bears some responsibility as well. It is hard to understand how, with a "high tech" courtroom which has operated for years to connect to witnesses in different parts of the world, it was so hard with the ready availability of web-linked video cameras, it was so hard to take the evidence of the witness. Nonetheless, the record is such as it is.
64In the result, with regard to the elapse of time from April 27 until judgment was rendered on February 23, 2016, I am prepared to assign responsibility for lost time to Mr. Crant, and in a smaller measure to the Crown and to institutional delay. In terms of the trial estimate and the needs of the witness, and the subsequent failure to facilitate what should have been a much smoother process, the Crown must bear some responsibility.
65It is evident, in a fine-toothed examination of the use of trial days, that time set aside initially for trial was not kept in part, not only due to the factors described above, but also, because for one half day of the four days of trial, defence counsel needed to attend to a court matter elsewhere. Another half day was consumed by the attendance for case management directed by this Court, as the assumptions underlying the requirements of the trial were clearly not the reality which presented itself within the opening comments of defence. Although this Court, being me, took steps to make a fifth day of trial available during the week assigned for the trial, that day could not be fully used, due to a brief commitment of Crown. Given the late assignment of the May 1 date to this trial, that cannot be counted against the Crown, it must be understood as a "neutral" passage of time.
66Portions of other days committed to the trial were lost for a variety of reasons. As indicated earlier, portions of days were taken up with discussions concerning the changes in direction defence took. Portions of days were taken up with attempts to understand what motions were intended to be brought by defence, and to what extent departures from the Rules of Practice could be tolerated. The most significant part of that inquiry involved Crown's ability to respond without notice; however, as has been pointed out, some of those departures must betray the attitude of counsel to compliance with the most basic of rules: naming the Court, respecting timelines, serving parties properly, framing arguments in terms of the issues to be litigated. Even with the present motion, the Court has been asked to reconsider rulings made in the course of trial, with weighty casebooks referring the Court to cases utterly irrelevant to the 11(b) issue.
67This is not the case which Justice MacDonnell considered in his role as a Summary Convictions Appeal judge, in R. v. Beteta-Amaya [2011] O.J. No. 5136, where the mis-estimation of trial time was adjudged, on the appeal, a neutral delay. After reviewing a series of cases where trials did not complete within the originally estimated times, His Honour comments:
"This was not a case like (W) A.J. where a shortage of resources necessitated an adjournment to complete the trial, nor was it a case like Thomson where the failure to complete the matter within the estimated time was due to the Crown's neglect of its obligations. It was simply a case where there was a mutual, good faith misjudgment as to how much time the trial would require." (emphasis added) (para 26)
In this case, the mis-estimation of time is almost wholly attributable to the inability of counsel to chart the course he would take, in terms of motions and applications which ought to have been known well before the commencement of trial. At the very least, having taken a position in chambers, in a case management meeting hastily convened to avoid the trial going off-track, counsel must be relied upon to do as he undertakes to two separate judges that he will do. While trials frequently "take on a life of their own", in the sense that unexpected events occur, evidence turns out differently than expected, new witnesses show up, or do not appear, the events which were unexpected here had to do with the difficulties the young witness had – and those in my view should have been known as well. So far as the time consumed by last minute ill-prepared motions go, they were entirely based on evidence known to the defence from an early stage, before the first trial dates were set. Counsel may have wished from that time to litigate what he called "deleted" or "destroyed" evidence, but he had time in advance to schedule for that. Not doing so in a timely way led to enormous losses of time.
68The loss of eleven days from the date first set for judgment until the actual date, February 23, is a relatively short delay, and one which was due to the judge's illness, cannot weigh against the Crown in the accounting of unreasonable delay.
69The failure to order the Gladue Report until April 8 created a delay, which was clearly caused by the defence. It is impossible to know whether a Report ordered promptly on February 23 might have permitted more timely sentencing, but one must assume so. I note as well, that although the Courts direct me, understandably, that a sentencing delay is governed by Section 11(b), the conceptual framework no longer involves a person enjoying the presumption of innocence, and so in the context of the entire process, and especially in light of the facts here, the elapse of six months from judgment to sentencing date cannot be seen as unreasonable, in this situation. It was caused by and agreed to by defence, again, even in the face of an immediate offer to deal with sentencing on a confirmation date, once the Gladue Report was made available.
70Ironically, this inability to come to court as soon as the delayed report was ready, not unreasonable though that may have been at first blush, meant that this entire motion exercise was triggered, as the sentence was to be imposed on August 24, after the Jordan decision was released. Had sentence been imposed prior to July 8, the Court would likely not have been required to deal with this motion.
71It is at this point, that I must return to the direction from the Supreme Court of Canada on numerous occasions, most recently cited by Justice Moldaver in Jordan that we must not become so entangled in the trees that we lose sight of the forest. The purpose of the analysis of elapsed time is not as pointed out by Justice Code in the Gandhi case (2016 ONSC 5612 , [2016] O.J. No. 4638 @ para 45, not a matter of assigning blame, but rather to understand whether the use of time was reasonable in an exercise whose goal is to provide a fair trial by, among other things, ensuring that it is completed in a reasonable time. In this case, all of the elapsed time was under the umbrella of the predecessor regime to that set out in Jordan. Even once the decision was rendered, Counsel did not immediately bring a motion, but rather, waited the six and one half weeks to return on the date set for sentencing, and announce his intention to bring a motion alleging unreasonable delay.
72This trial was conducted after a stay had been entered then reversed, on a motion under Section 11(b) of the Charter. Counsel frequently pleaded his unfamiliarity with criminal law and criminal practice. Nonetheless, it is apparent that he was alive to the provisions of this section of the Charter and at least some of the practice and the law, developed in connection with it. At no time was the matter of delay adverted to by counsel, until a waiver of delay was placed on the record on October 6, 2016, the first date set for argument of the motion announced on August 24.
73This entire trial was conducted while Mr. Crant, who asserted the prejudice worked upon him by the delay until June 2013, appeared countless times, clearly suffering both physically and emotionally by the extended ordeal. I appreciate that under the new regime, prejudice is one of the particularly subjective elements, whose assessment the Supreme Court sought to excise from the calculus. However, as I must have regard to the parameters of delay in a transitional case such as this one, I will simply note, as a matter of human empathy, that Mr. Crant has made his personal discomfort quite apparent to the Court. As it was not specifically pleaded as a factor to be taken into account in assessing delay under the previous legal regime, I do not however assign weight to it.
74In the result, the forest of the 71 months pending completion of this trial process, to date set for sentence, must be understood as follows:
Nov 15/11 to October 29/14 – 9.5 months delay, per Goldstein J – within tolerable limits at the time
October 29/14 – April 27/15 – requirements of the case – neutral
April 27/15 to August 24/16 – delay occasioned or tolerated by defence without complaint. Of the sixteen months, I assign responsibility for some of the delay to Crown and to the institution in taking the further evidence of PND at fifteen percent. Fifteen percent is a somewhat arbitrary number; and the record does not permit a more fine grained analysis. Nor, given the overview of the approach I am to take, should I think I need to sort the pines from the oak trees, in giving some responsibility to Crown and institution for not being alive to the particular needs of the witness, and subsequently the technology and logistics in completing his evidence. I am assigning fifteen percent of that time, thus ten of the 69 weeks between April 27 and August 24, as unreasonable delay. That is a further ten months which I see as unreasonable delay.
75In the result, I assess the delay in this case as 19.5 months which were caused by Crown or institutional defaults. That barely exceeds the eighteen month presumptive ceiling, set in the Jordan case. I am not prepared to find that the modest margin amounts to an unreasonable delay leading to a stay of proceedings. When I consider that the last six weeks at issue here, the very month and a half over the Jordan presumptive ceiling, were consumed by counsel apparently contemplating the motion but not putting it before the Court, I simply cannot allow a stay to follow an otherwise mechanical application of formula. The seriousness of the offences comes into play at this stage. That was certainly a factor to be considered under the regime which governed the application of principle for all but the last six weeks of the process, prior to this motion being filed.
76I have placed considerable thought into whether the faulty conduct of the trial on behalf of Mr. Crant might possibly be considered an unreasonable delay. I appreciate that for reasons best known to him, Mr. Roberts has expended enormous amounts of time and money (particularly on transcripts, paid from his own pocket, he advises) on the defence here. In large measure it has been misdirected and wasteful of court resources, and a burden on the emotional life of PND and his family, per victim impact statement, and I suspect an undue weight on Mr. Crant as well. I put the issue as plainly as I felt I ought to, to Mr. Crant, part way through the trial. He chose to have Mr. Roberts continue on his behalf. This is not a case, as hypothesized in the Elliott case (2003), 114 C.R.R.(2d) 1 (referred to by SCC in Jordan, (para 65)) where the actions of defence counsel might be an extraordinary circumstance which caused undue delay, but which ought not be held against the defendant.
77Having canvassed every issue argued and more, I am dismissing the motion.
78I await your sentencing submissions.
Released: January 26, 2017
Signed: Justice Shamai
Footnote
[i] * The note read:
"The only issue in this trial is whether the Crown can prove that the accused was aware that the complainant was underage. In other words, the accused asserts and believed the complainant was older, and when he learned in fact he was underage, he deleted the clothed image of the complainant which he received and deleted the complainant's Facebook. Other live issue in this trial is whether the accused received a photo of the complainant's penis. He denies having …" I think that says" … received it. Everything else is admitted."