WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2 May 2017

Court File No.: Ottawa 15-SA5097

Between:

Her Majesty the Queen

— and —

R.V.

Before: Justice Robert Wadden

Heard on: April 27, 2017

Reasons released on: May 2, 2017

Counsel:

• Brian Bencze, counsel for the Crown
• J. Michael Spratt, counsel for the defendant

RULING ON s. 11(b) CHARTER APPLICATION

WADDEN J.:

[1] R.V. is facing charges of four counts of Indecent Assault contrary to s. 149 of the Criminal Code. The offences are alleged to have occurred against the complainant C.K. in 1980. Although R.V. is presently 53 years old he is charged as a youth as he was under 18 at the time of the allegations.

R.V. brings this application alleging a breach of his rights under s. 11(b) of the Charter of Rights and Freedoms and seeking an order staying proceedings against him for unreasonable delay.

Background

[2] R.V. was charged on July 30, 2015. Originally, three separate informations were laid, involving (1) youth charges related to a complainant W.C, spanning dates from January to November, 1981, (2) adult charges related to W.C. and (3) youth charges related to the complainant C.K., spanning dates of January to December 1980, which are the charges before me. A re-laid information, including all youth charges involving both complainants, was laid on December 10, 2015, with trial dates set for December 12, 14, 15 and 16, 2016. The accused brought a severance application on the joint youth information and in a ruling on September 6, 2016 the application judge severed the youth charges involving W.C. from those involving C.K. The C.K. charges are scheduled for trial before me on June 14-16, 2017. That will be approximately 22.5 months from the laying of the charges.

[3] The accused takes the position that of all that time only 21 days can be attributed to defence delay. The defence position is that as the remainder far exceed the threshold for delay the charges should be stayed. The Crown takes the position that the defence caused over 9 months of delay by requesting to have the youth trial held after the adult preliminary hearing, and caused another period of over 7 months delay by refusing to have the youth trial proceed on dates already set aside for the adult preliminary hearing. Alternatively, the Crown takes the position that the ruling on severance was an extraordinary circumstance, as envisioned in R. v. Jordan, 2016 SCC 27, that should not count in an assessment of the delay.

The Legal Principles

[4] The law in this area is governed by the Supreme Court decision in R. v. Jordan and numerous decisions at various levels of court which have been decided since. The parties are in general agreement as to the applicable legal principles, although there is some disagreement as to the application of some of the principles. There is no issue that the Jordan decision has set a presumptive ceiling of 18 months for a case proceeding in provincial court, and this case is, on its face, beyond that ceiling. As these charges were laid before the release of the Jordan decision it is a "transitional" case which requires a contextual and flexible analysis.

[5] As this case is proceeding under the Youth Criminal Justice Act, the accused has asked me to adopt the reasoning of Paciocco J., writing in this court in R. v. J.M., 2017 ONCJ 4, that a presumptive ceiling of 15 months should apply for youth cases. I am not inclined to follow that decision in this case. Neither R. v. Jordan, nor the previous Askov/Morin regime, established different time requirements for youth cases as opposed to adult cases. The reasoning in J.M. supporting a different ceiling is essentially based on differences between an adult and a youth, as referred to in paragraph 115 of R. v. J.M. – the less developed ability to appreciate the consequences of behaviour, the effect of time on a youth, and the importance of having treatment as part of disposition delivered as quickly as possible. Those factors highlight additional prejudice that delay causes a youth, but none are present in this case. The accused before me is a fully grown adult who was already in his 50's when he was charged with these offences. There is no reason in this case to apply a lower ceiling for delay than the 18 months set by R. v. Jordan.

Analysis

[6] The Crown has principally focussed on three periods of time to justify how long this case has taken to proceed to trial – firstly, the period leading to the setting of the first trial dates, which the accused requested not be set until after the adult charges; secondly, the entire delay after the severance decision, which, the Crown argues, was an exceptional circumstance that resulted in delay of these charges from December 2016 to June 2017; and thirdly, the period after November 8 & 9, 2016, which dates were offered to the defence for this trial.

1. Actions Prior to Setting the First Trial Date

[7] In dealing with the actions that occurred prior to the setting of the first trial date, I will address, first, an email sent to the trial coordinator, dated December 17, 2015, by Mr. Spratt, counsel for the accused. In that email Mr. Spratt requested trial dates be set on the youth matters after October 8 & 9, 2016, although it appears he must have meant November 8 & 9, 2016, as he was referring to the dates for the adult preliminary inquiry. He made it clear in the email that his first available dates for trial on the youth matters were November 21-25, 2016.

[8] The Jordan decision is clear that defence unavailability, when the court and Crown are ready to proceed, will be regarded as defence delay. In this case, Mr. Spratt indicated unavailability before November 21, 2016. However, the record is not clear as to what dates, if any, the court could have offered for this trial prior to those dates, or prior to the December dates. I am not able to make a finding as to when the court was able to proceed with the trial, and therefore in spite of Mr. Spratt's explicit indication of unavailability I am unable, on the record before me, to agree with the Crown that the entire period of delay from December 2015 to October or November 2016 should be attributed to the defence. Given the lack of information about earlier trial dates I am unable to say what effect this action had on the overall delay in the setting of the first trial.

2. The Severance Decision

[9] Dealing next with the severance decision, I note that at the time the December 2016 trial date was set it was anticipated that the accused would bring a motion for severance of the charges. That motion was set for August 30, 2016. The judge hearing that motion granted severance and delivered reasons on September 8, 2016. As a result the two youth informations could not be tried together. The charges involving W.C. were heard on the scheduled trial dates in December 2016, and the charges involving C.K. were ultimately set for the June 2017 dates.

[10] The Crown argues that the severance decision was an "exceptional circumstance" as contemplated in R. v. Jordan, and that the resulting period of delay should be deducted from the calculation of overall delay.

[11] Counsel for the accused argues that the severance resulted from an improper decision by the Crown to join the charges in the first place, and any resultant delay arose from that tactical decision.

[12] In R. v. Jordan the court explained "exceptional circumstances" as follows, at paragraph 69-74:

69 Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

73 […] Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. […]

74 Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it.

[13] On reading the severance decision of Bourgeois J., there is nothing to indicate that the decision of the Crown to join the charges was made improperly, either for tactical or other reasons. Indeed, in a well-reasoned decision Bourgeois J. explained the many valid reasons that exist for the joinder of charges, including overall efficiency in the use of court time. Her Honour's decision recognized there was merit to both sides in this case but decided, on balance, that the charges should be severed.

[14] I do not accept the defence argument that because the ruling went against the Crown the decision to join the charges was improper in the first place. "Trials", to quote Moldaver J., "are not well-oiled machines." The Crown is entitled to make procedural decisions, in good faith, about the conduct of a trial. The fact that some decisions may be overruled or reversed in the course of the proceeding does not render them improper. It would not be right to second-guess each decision made in the court process, judging its propriety based on the ultimate outcome. Judges are often called upon to adjudicate on those decisions, whether it be objections to the calling of witnesses or objections to a line of questioning or, in this case, a joinder of charges. The fact that a trial judge makes a ruling against one side or another does not render counsel's decision as having been improper from the start.

[15] In this case, the Crown made a decision to join charges, reducing three separate informations to two. It was apparently anticipated that a similar fact application would be pursued, although that seems to have been abandoned. Hearing all of the charges on the two youth informations together would have resulted in a saving of court time, which is a valid objective to have pursued on the part of the Crown. Had the matters been heard together, they were scheduled to conclude under the presumptive ceiling of 18 months. In this case, the judicial ruling severing the charges was outside the Crown's control. In my view, it was the type of exceptional circumstance that Moldaver J. contemplated as being one of the "practical realities of trials."

[16] But defining it as such does not necessarily result in the subsequent delay being excluded from the overall delay. While the Jordan court states, at paragraph 75, that "The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay," the Court went on to say that:

[…] the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events […].

[17] Therefore, I must look at the actions of the Crown after the severance decision to see if efforts were made to mitigate the delay occasioned by the severance. This leads to an examination of the interaction relating to the November 8 and 9 dates being offered for this trial.

The Offering of the November Dates

[18] On the adult charges a preliminary inquiry had been scheduled for November 8 & 9, 2016. After it received the severance decision from Bourgeois J. the Crown appeared in court on September 23, 2016 and offered to have the adult dates "repurposed" for the youth trial. This was offered on the understanding that committal would not be in issue at the preliminary inquiry, and the suggestion by the Crown included offering to have the witness W.C. testify on discovery, as opposed to in court. At the September 23 appearance the Crown voiced a commitment to having the accused get a speedy trial and offered to re-assign a new trial Crown, if necessary.

[19] The offer of repurposing the November 8 and 9 dates was rejected by counsel for the accused. The accused asserts various reasons for rejecting the dates. Firstly, it is asserted that the two days would have been inadequate to complete the trial, noting that three days have been set before me in June. The Crown notes that Bourgeois J.'s decision contemplated that two days would be necessary for this trial, and in any event it is easier to get a continuation for a partial day. The defence asserts that the 45 days' notice, between offering the dates in September and the hearing dates in November, was not sufficient to prepare for a trial on the C.K. charges, although the Crown rightly notes that counsel had been on the file for over a year. Also, it is notable that if the severance application had failed counsel would have had to be prepared for trial on the C.K. charges on December 12, 2016. The defence asserts that time that had already been used to prepare for the preliminary hearing would have been thrown away, although as the Crown notes that same preparation time would have been used for the discovery of the witness. It is unclear that any defence witnesses would have been subpoenaed or prepared for the uncontested preliminary inquiry scheduled for November. Finally, the accused asserts that asking him to use the preliminary hearing dates for the youth trial would cause him to incur delay on the adult proceeding at the expense of mitigating it on the youth proceeding, which is an untenable choice for an accused to make. I am not persuaded that any further delay would have been incurred on the adult charges by proceeding by discovery rather than an uncontested preliminary inquiry. As discoveries could have been scheduled without the restrictions of the provincial court schedule the matter could have proceeded quickly to Superior Court.

[20] Whatever the merits of the reasons cited by the accused for declining the November dates, it is clear that the Crown was prioritizing this case and making efforts to mitigate any potential delay. The transcript of September 23, 2016 shows in detail the extraordinary efforts made by the Crown to have this trial heard quickly. The opportunity to have it heard in November was made available to the accused. It was his decision to decline that opportunity.

[21] Those efforts made by the Crown bring it within the requirements described in R. v. Jordan where a case is affected by exceptional circumstances. Unlike the situation in R. v. Manasseri, 2016 ONCA 703, the Crown in this case remained vigilant in attempting to ensure that the accused's s. 11(b) rights were not compromised as a result of the reversal of its procedural decision.

[22] Therefore, in conformity with the reasoning in R. v. Jordan, at paragraph 75, the period of delay caused by the severance motion "must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded."

Calculation of the Delay

[23] The severance resulted in a delay of approximately 6 months, from December 12, 2016 to June 14, 2017. Deducting that from the 22.5 months results in a delay of approximately 16.5 months. Deducting the additional 21 days conceded as defence delay brings the overall delay to 15.75 months. I would also deduct the approximately one month from November 9 to December 12, 2016 when the Crown offered to repurpose the preliminary hearing dates but the accused did not wish to proceed with the youth trial on those dates. The resulting overall delay is approximately 14.75 months, which is below the 18 month threshold set out in R. v. Jordan. I note as well that the first trial in December 2016 took place approximately 16 months after the laying of the information, and no claim was made that the accused's s. 11(b) rights had been breached as a result of that length of time.

Conclusion

[24] I therefore find that the accused's rights under s. 11(b) have not been breached. The delay in this case is not unreasonable. The Application will be dismissed. The case will proceed to trial commencing June 14, 2017.

Released: May 2, 2017

Original Signed by Justice Robert Wadden