Court of Appeal for Ontario

Date: May 31, 2017 Docket: C60166 Justices: Doherty, Miller and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Andrew Gordon Appellant

Counsel

Paul Calarco, for the appellant

Michael Fawcett, for the respondent

Hearing and Appeal

Heard: May 8, 2017

On appeal from the convictions entered by Justice Robert F. Goldstein of the Superior Court of Justice on February 23, 2015, with reasons reported at 2015 ONSC 1192, and the dismissal of the s. 11(b) application by Justice Katherine B. Corrick of the Superior Court of Justice on March 18, 2015, with reasons reported at 2015 ONSC 1757 and, an appeal, if leave be granted, from the sentence imposed by Justice Robert F. Goldstein of the Superior Court of Justice on June 9, 2015.

Decision

Doherty J.A.:

Grounds of Appeal

[1] There are two grounds of appeal:

• Did the trial judge err in holding that the appellant's right to trial within a reasonable time was not breached?
• Was the trial judge's finding that the "gun" used in the robbery was a firearm unreasonable?

Was There a Breach of s. 11(b)?

[2] The trial judge considered and dismissed the s. 11(b) claim, following the analysis prescribed in R. v. Morin, [1992] 1 S.C.R. 771. Morin was overruled in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The approach to s. 11(b) created by the majority in Jordan is radically different from the approach set out in Morin. Even though the trial judge heard and decided the s. 11(b) motion almost a year and one-half before Jordan was decided, Jordan applies to the s. 11(b) claim on appeal: Jordan, at paras. 92-95.

[3] Jordan declares that any delay beyond 30 months in completing a trial in Superior Court is presumptively unreasonable. The burden falls on the Crown to rebut that presumption: Jordan, at para. 68.

[4] The charges were laid in January 2010. The appellant was tried and convicted in February 2015 and sentenced in June 2015. In total, 65 months elapsed between the laying of the charge and the imposition of sentence.

[5] A delay of 65 months is more than double the cap set in Jordan. However, Jordan indicates that any time attributable to defence delay must be subtracted from the total delay to determine the "net delay". The "net delay" is then compared to the presumptive 30-month ceiling: see R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-36.

[6] There was some defence delay. The preliminary inquiry was delayed for about 7 months, due to the unfortunate death of defence counsel. The setting of the first trial date in Superior Court was delayed by about 1.5 months at the request of defence counsel. The first trial date in Superior Court was set 11 months into the future in part to allow the defence an opportunity to finalize its retainer. I do not accept the Crown's argument that this entire 11 months should be treated as defence delay. The appellant could not have been tried immediately even if he had a lawyer. Some time was needed to make a trial court available and allow for Crown preparation.

[7] I do, however, think that some part of the 11 months should be treated as defence delay. The accused's need to secure counsel's retainer was one factor considered in adjourning the case for 11 months. It cannot be said with any exactitude how much of the 11 months should be treated as defence delay. Having regard to the time needed to set other trial dates in the course of this proceeding, I would attribute 7.5 months to the time needed to fix the trial date and 3.5 months to the time needed for the defence to secure its retainer.

[8] Total defence delay amounts to 12 months. Subtracting the 12-month defence delay from the total delay of 65 months, yields a net delay of 53 months, still well beyond the 30-month limit in Jordan.

[9] Jordan further provides that when the net delay exceeds 30 months, the Crown may rebut the presumption that the delay is unreasonable by showing that the delay was justified by exceptional circumstances: Jordan, at para. 68. Exceptional circumstances can include discrete, unexpected, or unavoidable events beyond the control of the Crown, the complexity of the particular case, or what Jordan describes as the "transitional exceptional circumstances", referring to cases that were in the judicial system before July 2016 when Jordan was released, and were subject to the s. 11(b) regime described in Morin: Jordan, at paras. 69-81, 96.

[10] The Crown argues that the co-accused's unanticipated decision to change his plea and cooperate with the police constitutes an exceptional circumstance on the facts of this case. I agree.

[11] The first trial started in September 2013. After a day or two of pretrial motions, the co-accused decided that he would cooperate with the police, provide a statement, plead guilty and testify. Crown counsel suggested to the trial judge that the trial could be adjourned briefly so that the police could take a statement from the co-accused and counsel for the appellant could consider the content of that statement before deciding how best to proceed. Crown counsel suggested that the trial may be able to proceed to completion in the remaining time allocated in September for the trial.

[12] Defence counsel took the position that the co-accused's decision to change his plea and cooperate with the police radically altered the case that the appellant had to meet. Counsel also acknowledged that he had inadvertently failed to "book" the final week that had been set aside for the trial. Although defence counsel used the word "adjournment", in his exchanges with the trial judge, it is clear that he wanted a mistrial. Counsel wanted a new judicial pretrial and a new trial date. Ultimately, the trial judge acceded to the defence request. A new trial was set for June 2, 2014, 9 months later.

[13] The 9-month adjournment from September 2013 to June 2014 was a direct result of the co-accused's unanticipated decision to change his plea and to cooperate with the police. This 9-month delay was reasonably unforeseen and reasonably unavoidable. The delay qualifies as an exceptional circumstance under Jordan.

[14] However, Jordan instructs that not only must the circumstance be exceptional, the Crown must also demonstrate it made reasonable efforts to mitigate any delay flowing from the exceptional circumstance: Jordan, at paras. 69, 75. I am satisfied that the Crown did all that it reasonably could do to mitigate the delay flowing from the co-accused's change of position. Crown counsel suggested a brief adjournment to assess the co-accused's statement and held out the possibility that the matter could proceed as scheduled in September. Defence counsel wanted to start all over. Once the trial judge accepted the defence position, there was nothing more the Crown could realistically do to mitigate the delay caused by the co-accused's change of position. The new trial date in June 2014 was, on the information made available to the Crown and the trial court, defence counsel's first available date for a trial of the required length. The 9-month delay between September 2013 and June 2014 should be subtracted from the net delay of 53 months, yielding a delay of 44 months, still well above the 30-month ceiling set by Jordan.

[15] The Crown submits that the additional delay between June 2014 and the eventual trial date in February 2015 should also be deducted from the net delay as attributable to the co-accused's decision to change his plea and cooperate with the police in September 2013. There is a "but for" causal connection in the broadest sense between the co-accused's decision to cooperate with the police in September 2013 and the delay from June 2014 to February 2015. Had the co-accused not decided to cooperate with the police, the trial would have proceeded in September 2013.

[16] The delay from June 2014 to February 2015 was, however, directly attributable to two things. First, defence counsel had mis-diarized the date, thinking that the trial was scheduled to start on a Wednesday rather than the Monday. By Wednesday, there was no jury available to try the case. Second, although no jury court was available, there was a judge available who could try the case without a jury. The Crown would not agree to a re-election.

[17] As a consequence of counsel's mis-diarization, and Crown counsel's refusal to agree to a re-election, the trial was adjourned from June 2014 to February 2015. Those two events, and not the co-accused's decision nine months earlier to cooperate with the police, led to the delay from June 2014 to February 2015. Neither qualifies as an exceptional circumstance under Jordan.

[18] There were no other events in the course of the proceedings that could be characterized as exceptional for the purposes of the Jordan analysis. Nor was the case sufficiently complex to justify delay beyond the 30-month cap. The Crown is left only with what Jordan describes as "transitional exceptional circumstances".

[19] Jordan recognized that the new approach to delay could not simply be applied without qualification to those cases that were in the system prior to the release of Jordan and had proceeded on the basis that Morin established the constitutional standard for unreasonable delay. Jordan addressed those cases by recognizing that some delays beyond the 30-month cap can be justified based on the Crown's reasonable reliance on Morin. Several passages from the majority judgment explain how reliance on Morin must be taken into account in assessing the reasonableness of delay in those cases which were in the system before Jordan was decided:

[96] 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.

[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.

[103] …For cases already in the system, the presumptive ceiling still applies; however, 'the behaviour of the accused and the authorities' – which is an important consideration in the new framework – 'must be evaluated in its proper context' [citation omitted]. 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. [Italics in original; underlining added.]

[20] The transitional exception is based on reasonable reliance on Morin. The exception cannot assist the Crown if the delay was unreasonable as measured against the Morin criteria: see Jordan, at para. 128. To rely on the transitional exception, the Crown must show that the pre-Jordan delay was not unreasonable under the Morin analysis.

[21] The Crown contends that the trial judge correctly held that the delay was not unreasonable under Morin. The trial judge found, at paras. 29, 36, 50, that the Crown/institutional delay in the Ontario Court of Justice was about 7 months and the Crown/institutional delay in the Superior Court was about 10.5 months. The total Crown/institutional delay of 17.5 months is just below the top of the range of tolerable Crown/institutional delay described in Morin.

[22] I see no reason to disagree with the factual findings underlying the trial judge's allocation of the various time periods. The trial judge also identified the other relevant factors under the Morin analysis and balanced those factors in an appropriate manner. The trial judge correctly held that under the Morin analysis there was no breach of s. 11(b).

[23] In most cases, especially when all of the delay occurred prior to the release of Jordan, if the court concludes that the delay was not unreasonable under Morin, the transitional exceptional circumstance described in Jordan will justify delays beyond the 30-month cap. There will, however, be situations in which the delay, while tolerable under Morin, becomes unconstitutional under Jordan. As explained in Jordan, at para. 98:

[I]f the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case. [Emphasis added.]

[24] The language in the above-quoted passage describes a narrow category of cases. This case was arguably not "simple", but it was certainly not complex. The 44-month delay significantly, if not "vastly", exceeded the 30-month ceiling set in Jordan. However, and this is crucial, I find no evidence of any "repeated mistakes or missteps by the Crown" that contributed to the delay.

[25] The Crown's refusal to consent to a re-election in June 2014 caused an additional 9 months' delay. Considered in isolation, and from the new perspective on delay provided by Jordan, the Crown's decision could be characterized as a "misstep", giving rise to further delay. However, the Crown's decision must be considered in the context of the other steps taken by the Crown at about the same time. In the weeks following the adjournment in June 2014, the Crown made efforts to shorten the upcoming trial by obtaining certain factual admissions from the defence. Most importantly, after the February 2015 trial date was set, the Crown continued to seek out earlier trial dates for a jury trial. The Crown secured dates in August 2014 and offered those dates to the defence. Defence counsel did not respond to the Crown's offer.

[26] Placed in its proper context, the Crown's refusal to consent to a re-election in June 2014 cannot be described as a "misstep". Nor does it reflect the "culture of complacency" that so concerned the court in Jordan: see Jordan, at para. 104.

[27] The circumstances of this case demonstrate the wisdom of the transitional exception built into the Jordan analysis. When the Crown refused to agree to a re-election in June 2014, the Crown knew the prosecution was well within the Morin guidelines for delay. Indeed, there had been virtually no Crown/institutional delay in the Superior Court to that stage. The Crown's decision to keep the jury and consequently delay the trial, while probably unreasonable in the context of the "hard cap" approach in Jordan, was reasonable in the context of the Morin analysis as applied to the chronology of this case.

[28] The Crown's reasonable reliance on Morin must be factored into the s. 11(b) assessment required by Jordan. In my view, that reasonable reliance justifies the 14-month delay beyond the 30-month ceiling created by Jordan. I would not give effect to this ground of appeal.

Was the Finding that the "Gun" Was a Firearm Unreasonable?

[29] On the evidence of the victims, one of the robbers pointed a handgun at them and threatened to shoot them if they attempted to escape. Fortunately, the gun was not fired during the robbery. The police did not recover the weapon.

[30] The appellant submits that it was unreasonable for the trial judge to conclude that the gun was real in the sense that it was capable of firing bullets and therefore fell within the definition of a firearm in s. 2 of the Criminal Code, R.S.C., 1985, c. C-46. The appellant submits that the evidence was equally consistent with the conclusion that the gun was an imitation firearm.

[31] There was ample evidence from which the trial judge could infer that the gun used in the robbery was a real gun capable of firing bullets. Certainly, the victims thought it was real and the robbers acted as if it was real. A trier of fact is entitled, although clearly not obligated, to take a robber at his word when, in the course of the robbery and to subdue the victims, the robber points what appears to be a gun at the victim and threatens to shoot them. It is a fair inference that the threat is not an idle one and that the robber has the means at hand to make good on the threat.

[32] Compagnoni, one of the perpetrators, testified for the defence. On his evidence, one of the accomplices brought a gun to the robbery. Compagnoni used the pistol to threaten the victims. He pled guilty to committing robbery with a firearm. Very late in his evidence, when questioned by the trial judge, Compagnoni indicated that he did not think the gun was real. He offered no explanation for his failure to mention this belief the first three or four times he was asked about the weapon.

[33] This single answer by Compagnoni, even if it was not disbelieved by the trial judge who found Compagnoni's evidence unreliable, would not necessarily render the trial judge's conclusion that the gun was a firearm unreasonable, having regard to the totality of Compagnoni's evidence. In any event, there was ample other evidence capable of supporting the conclusion that the gun was a firearm. This ground of appeal fails.

The Sentence Appeal

[34] The sentence appeal was contingent on this court accepting the argument that the Crown did not prove that the gun was a firearm. As I would reject that argument, it follows that I would refuse leave to appeal sentence.

Conclusion

[35] I would dismiss the appeal from conviction and sentence.

Release and Concurrence

Released: May 31, 2017

"Doherty J.A."

"I agree B.W. Miller J.A."

"I agree D.M. Paciocco J.A."

Footnote

[1] The s. 11(b) motion was heard prior to arraignment. The judge who heard the motion did not conduct the subsequent trial. For ease of reference, however, I will refer to her as the trial judge in these reasons.