Court Information
Court: Ontario Court of Justice
Date: 2016-10-24
Court File No.: Toronto
Between:
Her Majesty the Queen
— AND —
Sangyoun Han
Before: Justice L. Pringle
Heard on: April 18, 2016; October 12, 2016
Ruling released on: October 24, 2016
Counsel
Mr. D. DeSantis — counsel for the Crown
Mr. G. Zoppi — for the defendant Sangyoun Han
Decision
PRINGLE J.:
Sangyoun Han: Ruling re delay
1. Introduction and Overview
[1] Sangyoun Han was charged with impaired driving and "over 80" on March 8, 2015. The information was sworn and laid before the court on the next day, March 9, 2015.
[2] Mr. Han's 1 ½ day trial began over a year later on April 18, 2016 but was unable to be completed on the next day due to an overbooked court docket. The trial is now scheduled to continue on November 3, 2016. The total delay from the date the information was sworn to the anticipated completion of the trial is 19 months and 25 days.
[3] This is an application by Mr. Han to stay the charges pursuant to s.11(b) of the Charter for unreasonable delay. The Applicant relies on the recent Supreme Court of Canada case in R. v. Jordan, 2016 SCC 27, and submits that the delay is unreasonable because it is over the 18 month presumptive ceiling for constitutionally tolerable delay set out in that case.
[4] The Crown submits that 4 months and 14 days of defence delay should be deducted from the total delay. As a result, the Crown says the net delay is 15 months and 11 days, which is presumptively reasonable according to Jordan.
[5] This case raises the issue of how to calculate defence delay under the Jordan rules.
[6] As will be seen, the analysis lends some credence to Justice Cromwell's prediction in dissent that any hoped for simplicity flowing from the presumptive ceiling may be illusory.
2. The Chronology in this Case
March 9 – April 10, 2015
[7] Mr. Han retained counsel Mr. Zoppi prior to his first appearance in court on April 10, 2015.
April 10 – June 12, 2015
[8] On the third appearance in court on May 22, 2015 the defence noted that the breath and booking videos still had not been disclosed, despite two Crown requests to the police on April 8 and May 15. Disclosure of these items was eventually provided on June 2, 2015.
June 12 – July 13, 2015
[9] Once disclosure of the breath and booking videos was provided, a Crown pre-trial and Judicial pre-trial were held. On July 13, 2015, the case was scheduled for a 1 ½ day trial on April 18 and 19, 2016, approximately 9 ¼ months later.
April 18 and 19, 2016
[10] An affidavit provided by a student at the Crown's office explained how the overbooking situation arose on April 19: a visiting judge from another court was presiding over an ongoing attempt murder preliminary hearing in the fall of 2015. When that matter did not finish in the estimated time, further evidence dates were set in the New Year that included April 18 and 19, 2016, on top of the Han matter. In early April 2016, the trial coordinator decided to move the Han matter before Justice Pringle who had become available as a result of another case collapsing. However, Justice Pringle was double booked with other matters on April 19, so the second day of the Han case had to be re-scheduled.
[11] Accordingly, at the end of the first day of Mr. Han's trial on April 18, the parties went to the trial coordinator to re-schedule the continuation date. The trial coordinator offered 10 dates that the court was available. These included May 16, 18, June 13, 17, 21-23, July 4, 7 and August 8. The Crown was available but the defence was not on May 16, 18, June 21-23, July 4 and 7. The defence was available on June 13, 17 and August 8, but the Crown was not. The first mutually agreeable date to all parties was August 19, which was selected. No concerns were expressed regarding delay.
April 18 – April 27, 2016
[12] On April 20 the Crown realized that he had made a scheduling error and was not available on August 19. The parties corresponded by email and agreed to bring the matter forward. On April 27th, a new date was canvased with the trial coordinator. At this time three additional dates were offered: June 14, August 26 and October 3. The defence was available on all those dates but the Crown was not. The Crown was also not available between October 3 and November 18, due to involvement in a homicide trial. The first mutually agreeable date was November 18, 2016, scheduled on top of another matter.
[13] I expressed concern and stated that this didn't seem workable, and the defence confirmed that delay would certainly be an issue with November dates. After speaking to the trial coordinator, I suggested that the Crown might have to have the case reassigned to another Crown for August 19, or take a day out of the homicide he was scheduled to be involved in during the fall of 2016. I requested that the parties work together to determine how to get an earlier date.
April 27 – August 19, 2016
[14] On June 9th, the Crown emailed the defence and advised that June 20 had become available. Mr. Zoppi indicated that at the time of the trial on April 18, that date would have worked, but since then, that date had become unavailable.
August 19, 2016
[15] On August 19 the court was advised that attempts to secure an earlier date than November 18 had been unsuccessful. On canvassing the trial coordinator on August 19, she offered some new openings in the trial calendar of September 6, October 4, 13, 24 and 25 that were now all available to the Crown since his homicide trial was no longer going ahead. Those dates had been recently scheduled by the defence for other matters, and were therefore not available to him, although other dates were free. Accordingly November 18 was confirmed.
[16] Later, the parties were able to reschedule the continuation to the earlier date of November 3.
3. The Jordan Framework for Analysis
[17] In R. v. Coulter, 2016 ONCA 704, the Court of Appeal provided a summary of the Jordan framework for analysis of delay as follows:
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para.47);
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para.66);
Compare the Net Delay to the presumptive ceiling (Jordan, at para.66);
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para.47). If it cannot rebut the presumption, a stay will follow (Jordan, at para.47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para.71);
Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para.75);
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para.80);
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para.48);
The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para.96).
4. Applying the Analysis to this Case
4.1 The Total Delay
[18] The total delay in this case is 19 months and 25 days.
4.2 Defence Delay
[19] In Jordan, the Supreme Court held that defence delay consisted of periods of delay that were waived by the defence, or periods of delay that were caused by the defence.
[20] There is no issue in this case regarding waiver. Delay was never waived, indeed it was flagged as a live issue by the court and the defence when dates were being canvassed on both April 27 and August 19. Moreover, it is not suggested that the defence deliberately delayed or failed to move this case along at any point.
[21] However, the issue of whether the defence "caused any delay" is clearly contested. The nub of the issue in this case arises out of para.64 of Jordan:
As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.
[22] It is relatively straightforward to calculate delay "resulting from" defence counsel's unavailability when it is simply the defence that is unavailable during the time to the next offered date. If the defence is unavailable, but the Crown and the court are ready to proceed, there is little basis for the defence to complain about delay. This seems to have been the situation in R. v. Williamson, 2016 SCC 28 at para.21; R. v. Korzh, 2016 ONSC 4745 at para.22; R. v. Gandhi, 2016 ONSC 5612 at paras. 40-41; R. v. Kennedy, 2016 ONSC 4654 at paras. 92-93; R. v. Swaminathan, 2016 ONSC 4913 at para.27; and R. v. Coulter (cited above) at paras.73, 75 and 77. In these cases, the courts attributed all the ensuing delay to the defence, from the first date the court and Crown were ready to proceed, to the next available date for all parties.
[23] It does not appear to be quite as simple to determine if the delay "results from" defence counsel's unavailability where there are numerous intervening dates where the Crown is also unavailable.
[24] In R. v. Godin, 2009 SCC 26, at para. 23, Justice Cromwell stated:
Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. …I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable." (my emphasis)
[25] A number of courts have applied Godin to cases after Jordan.
[26] In R. v. Edan, 2016 ONCJ 493, the trial did not proceed as scheduled due to late disclosure by the Crown. In rescheduling the trial Justice Botham found that where defence counsel had reasonable availability for continuation dates, but the dates "simply did not coincide with the court's availability… it would be unreasonable to attribute the difficulty in accommodating a second trial date in this matter to defence unavailability and contrary to the spirit of the SCC's comments in Jordan". Accordingly, the court found no reason to deduct any of that time from the total time to trial.
[27] In R. v. Ashraf, 2016 ONCJ 584, Justice Band applied Godin and declined to attribute 20 days of delay to the defence where the court offered only one available date on a day where the defence had previous commitments. During the transition period after Jordan, Justice Band found that the defence was entitled to rely on Godin.
[28] The Crown agrees that Godin applies to transition cases. Here, the Crown suggests that while the defence did not have to be "perpetually available", Mr. Han and his counsel should have been available by the third available date offered by the trial coordinator, that is June 20. Accordingly, the Crown submits that I should find that the defence "caused" the delay from June 20 to November 3, and deduct it from the total delay.
[29] The defence disputes that it caused any of the delay, and says the defence was reasonably available. Mr. Zoppi urges me to follow the approach of Justice Botham and decline to deduct any defence delay.
[30] Although the court in Jordan cautioned against the micro-counting of days, and told judges to take a bird's eye view instead of getting bogged down in the minutiae, the numbers matter. If the Crown position is adopted, the defence delay takes the final number below 18 months and the delay is presumptively reasonable; if the defence position is accepted, the delay is over 18 months and presumptively unreasonable.
[31] Without necessarily engaging in micro-counting, it seems to me that the language in Jordan nonetheless requires judges to assess and calculate the delay "resulting from" defence unavailability, precisely because the numbers do matter.
[32] A simple example suggested by my colleague Justice Duncan clearly demonstrates the significance of the numbers:
The court is over booked on a particular day, and the case needs to be rescheduled;
The trial coordinator offers the next two months as available to the court;
The first month, the Crown is available and ready to proceed but the defence has other commitments and is not;
The second month, Crown counsel is not available but the defence is wide open and ready to go ahead on any date.
[33] What is the "defence delay" here: 1 month or 2 months?
[34] In my view, it would be difficult to say that the defence "caused" 2 months of delay when they were available for the entire second month. Or to put it in the language of Jordan, it would be difficult to find that 2 months of defence delay "resulted from" 1 month of defence unavailability.
[35] Rather, applying the language in Jordan (and considering the Godin principles of reasonable availability and reasonable cooperation), it seems both logical and fair to find that the defence "caused" only 1 month of the delay, or that only 1 month of delay "resulted from" defence unavailability, since the other was caused by or resulted from Crown unavailability.
[36] Accordingly, in my view a court applying Jordan may find that not all the delay "results from" defence unavailability where the delay results from both Crown and defence unavailability. In this analysis, I believe that the Godin principles of reasonable availability and reasonable cooperation will continue to apply to the determination of whether the delay "resulted from" defence unavailability.
[37] In other words, where responsibility for the delay is shared, it can't automatically be said that all the delay results from defence unavailability.
4.3 Calculating Defence Delay
[38] In some cases, the cause of delay and length of delay arising out of defence unavailability will be easily identifiable. For example:
in Gandhi, the defence was unavailable during the time that defence counsel was in Florida;
in Kennedy and McDermott, the defence was unavailable when Mr. McDermott decided it was more important to him to go to the Bahamas for a wedding than to have an early trial date;
in Williamson, the defence was unavailable during the time that Mr. Williamson chose to deal with family commitments;
in Coulter, the defence was unavailable during the time his lawyer was involved in an ongoing jury trial.
[39] However, calculating delay as a result of defence unavailability is not always as straightforward as the examples noted above.
[40] In calculating delay in this case, it was of great assistance that the record was complete and the availability of the court, defence and Crown was all clearly articulated. It seems to me that in future, charts like the ones used by the trial coordinator and tendered as exhibits on this application will help to simplify the issue.
[41] So what delay resulted from defence unavailability here?
[42] First of all, it is obvious that the adjournment of the case was not caused by the defence – it was caused by the state, due to an overbooked courtroom.
[43] Secondly, I agree with the approach of Justice LeMay in R. v. Isaacs, 2016 ONSC 6214 at para.105, in breaking the time into separate parts for the purpose of analysis.
[44] Here, as of April 18 and 27, defence counsel had reasonable availability on 7 of the 15 days offered days until October 3. During this period, the Crown had similar availability as the defence, and also an additional date that opened up on June 20, (in total 8 available days). However, after October 3 the Crown was unavailable for a long period of time (approximately 6 weeks), due to other commitments. In short, over the total period, most of the unavailability fell to the Crown.
[45] In the circumstances, I believe it would be illogical to find that the totality of the delay after the April 18 adjournment was "caused by" the defence, or "resulted from" defence unavailability.
[46] Rather, I would apportion the delay as follows:
From April 18 to October 3 the court had reasonable availability, as did the defence and the Crown. Unfortunately, as sometimes happens, their schedules did not align;
The Crown agrees that applying Godin, the defence would not have been expected to be available until the date offered on June 20;
Acknowledging that the delay was caused approximately equally by defence and Crown unavailability from June 20 to October 3, I find that the resulting delay during this time was a shared responsibility;
Accordingly I attribute only half of this time to defence delay: that is, 1 month and 21 days, (half of the 3 months and 14 days from June 20, 2016 to October 3, 2016).
[47] On August 19, the parties inquired about earlier dates than the scheduled continuation of November 18, but none of the 6 dates offered by the court were mutually available. While the Crown was now free because the homicide was not going ahead, the defence had recently booked other commitments. I would apportion this period as follows:
Applying Godin, and again acknowledging that the defence need not be perpetually available, I would not necessarily expect that the defence would be available on the first date offered by the trial coordinator of September 6, which was only 3 weeks away from August 19. Similar to Justice Band in Ashraf, I would not deduct this period as defence delay;
Nonetheless, the 5 other dates offered by the trial coordinator from October 3 to 25 were far enough in the future that the delay after October 3 could fairly be said to have "resulted from" the defence unavailability. In a post-Jordan world, the defence knew that his or his client's unavailability could be subtracted from the total delay. When the defence was consistently unavailable but the Crown and the court were ready to proceed, there can be little room for complaint about state delay.
Applying Jordan, I would attribute 1 month of delay from October 3 to Nov 3, resulting from the unavailability of the defence.
[48] Therefore, the total defence delay resulting from defence unavailability is 2 months and 21 days, (that is, 1 month and 21 days + 1 month).
[49] Subtracting the defence delay from the total delay leaves a net delay of 17 months and 4 days. (that is, 19 months and 25 days - 2 months and 21 days = 17 months and 4 days).
4.4 Net Delay is below the presumptive ceiling
[50] In Jordan at para.48, the majority held:
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. We expect stays beneath the ceiling to be rare, and limited to clear cases.
[51] I am satisfied that the defence took meaningful steps that demonstrated a sustained effort to expedite the proceedings in light of the following, (see para.85 in Jordan):
the cause of the continuation was beyond the control of the defence and fell to the state;
the defence had reasonable availability for hearing dates once that event occurred;
the defence cooperated with the Crown by emailing back and forth regarding available dates once the Crown realized he had made a scheduling error, agreeing that there was no need for a formal adjournment application;
the defence put the Crown and the court on timely notice with respect to delay issues as early as April 27, 2016;
the defence attended on August 19, 2016 to speak to the matter in the absence of the assigned Crown and attempted to get earlier dates;
the defence conducted the delay application reasonably and expeditiously.
[52] I am further satisfied that the time the case has taken markedly exceeds the reasonable time requirements of a simple drinking and driving case in light of the following, (see para.87 in Jordan):
the total period of delay was almost 20 months;
the institutional delay of 9 months and 5 days to the original trial date of April 18 and 19 was not a model of dispatch to begin with, in light of the Morin guidelines of 8-10 months for constitutionally tolerable delay;
I would have subtracted time for "Charter readiness" of 3 weeks from this institutional delay for reasons I explained in R. v. Avellaneda, 2014 ONCJ 132;
then, under the previous approach to delay, I would have added an additional 3 weeks of delay to the state due to late disclosure of the breath and booking videos which was holding up a pre-trial. Indeed, the Crown had to make repeated requests to the police for this basic disclosure, and was not pressing that a date be set in its absence;
once the case had to be adjourned due to overbooking, the state bore additional responsibility for the delay. Accepting the Crown's suggestion that the defence should have been ready by June 20, the state was responsible for the delay of 2 months and 3 days between April 18 and June 20;
the total state delay under the previous approach was therefore in the range of 11 months ¼ months;
on April 27, the court noted concerns about the November 18 date and proposed possible solutions to the Crown: having the case re-assigned for August 19, or giving up a day of the homicide in the fall. Neither of these came to pass;
although the Crown did attempt to obtain one further date in June, no further action was taken until August 19 to schedule the matter earlier for trial. By that time, it was not surprising that the defence was unavailable for the fall dates now being offered;
in the face of the court's expressed concerns in April about the November date, it appears that the Crown's efforts to get an earlier date were too little, too late.
[53] Under the previous approach to s.11(b), a state delay of 11 ¼ months for a drinking and driving charge might not have resulted in a stay in the absence of some actual prejudice. There was some actual prejudice here, albeit small: first, because the delay was beyond the guidelines, and second, because Mr. Zoppi had to appear in court again on August 19 to canvas new dates.
[54] However, taking that small prejudice together with over 11 months of state delay, and considering that the court's admonition about not letting the case get off the rails beyond August 19 went largely unheeded, I believe the delay to November 3 was clearly unreasonable under the previous approach to delay.
[55] In other words, this delay would not have been reasonable or tolerable under the previous guidelines.
[56] While a Net Delay of 17 months and 4 days is about one month short of the new presumptive ceiling, I find that the defence has met the onus of showing that in this case, it markedly exceeded the reasonable time requirements of the case.
[57] The application is allowed and the charges are stayed.
Released: October 24, 2016; in court on November 3, 2016.
Signed: "Justice Leslie Pringle"