Court File and Parties
COURT FILE NO.: CR/15/40000/6540000 DATE: 20170317 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Respondent - and - R.D. Applicant
Counsel: Kasia Batorska, for the Crown (Respondent) Hillson Tse, for the Applicant
HEARD: March 16, 2017
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4(2.1) of the Criminal Code of Canada
Molloy J.
reasons for judgment (Application to Dismiss for Delay)
Introduction
[1] R.D. faces charges of sexual assault, sexual interference, incest, and uttering threats. The charges stem from alleged sexual abuse against his younger sister over a period of eight years between 2001 and 2009. R.D. was arrested on those charges on September 23, 2014. His trial in this Court is scheduled to begin on March 20, 2017 and estimated to conclude on March 28. The total delay from the date of arrest to the last day of the trial is 30 months and six days, exceeding the presumptive ceiling established by R. v. Jordan by six days. The defendant seeks a stay of the charges against him on the grounds that the delay violates his right under s. 11(b) of the Charter to a trial within a reasonable period of time.
[2] The application was argued before me on Thursday, March 16, 2017, with the trial scheduled to start on Monday, March 20. At the conclusion of the argument, I dismissed the application, stating that reasons would follow. Those reasons are set out below.
The Test Under Jordan
[3] The first step in an analysis under the Jordan framework is to determine the total length of the delay. Counsel are agreed that the total delay in this case is 30 months and six days.
[4] Next, any delay attributable to the defence should be subtracted from the total delay. This will include periods of time for which the defence has waived its 11(b) rights, as well as periods of time where delay was actually caused by the defence. The latter will include conduct of the defence that are found to be a deliberate or calculated tactic to delay and also periods of time where the Crown and the court are ready to proceed to the next step, but the defence is not. Jordan, at paras. 60-66. In this case, the defence contends that none of the delay is attributable to the defence. The parties agree that there was no defence waiver and no tactical conduct by the defence undertaken for the purpose of delay. However, the Crown submits that there are two periods of time during which the defence was responsible for at least some portion of the delay, with the total defence delay exceeding six days.
[5] After deducting any period of delay attributable to the defence, the next step is to determine whether the 30-month ceiling has been exceeded. If it has, Jordan establishes that there is a presumption of unreasonableness, with the burden on the Crown to rebut that presumption. The Crown may do that by showing exceptional circumstances, such as the complexity of the case or discrete events outside the control of the Crown that could not be reasonably foreseen or avoided, neither of which is alleged in this case. Alternatively, for transitional cases (those, such as this one, which were already in the system when Jordan was decided), the court may consider whether the time taken to get the case to trial was justified based on the parties’ reasonable reliance on the law as it existed prior to Jordan). This will typically involve an analysis of whether the delay would have been considered to be unreasonable under the previous case law. Jordan, at paras. 69-71, 77-80, 92-98, 99-104.
[6] If the delay falls below the 30-month ceiling, the onus is on the defence to establish that the delay is unreasonable. To do so, the defence must establish: (1) that it took meaningful steps, demonstrating a sustained effort to expedite the proceedings; and (2) the case took “markedly longer than it reasonably should have.” The majority judges in Jordan noted that they “expect[ed] stays beneath the ceiling to be granted only in clear cases.” Jordan, at paras. 82-83.
Analysis: The 30-Month Ceiling Was Not Exceeded
[7] Delay by the defence in retaining counsel, including delay in making an application to Legal Aid, can be deducted from the overall delay in determining whether the ceiling established in Jordan has been exceeded. R. v. Isaacs, 2016 ONSC 5225 at paras. 89-90; R. v. Paauw, 2016 ONSC 7394 at paras. 36-42.
[8] R.D. was called as a witness on the application before me. He testified that on the day he was released on bail (which was September 26, 2014), the “bail supervisor lady” (apparently referring to someone from the Toronto Bail Program) took him to the Legal Aid office, where he was told that in order to apply for legal aid he needed the disclosure and the Crown screening form.
[9] By the next return date on October 30, 2014, disclosure had not yet been made. The matter was put over to November 27, 2014. On November 27, some disclosure was provided (the information and synopsis). R.D. appeared in person and was assisted by duty counsel who advised the Court that R.D. had retained Mr. Zoppi to represent him. The Crown undertook to look into the disclosure issue.
[10] On the next court date, January 8, 2015, the Crown provided additional disclosure in the form of the notes of the police officers involved. At that time, the Crown also advised that the DVD containing the police interview of the complainant was ready for disclosure, but that given the sensitive nature of the matter, disclosure of the DVD would be made only to R.D.’s lawyer, and not turned over to R.D. directly. She noted that R.D. was planning to retain Mr. Zoppi but had not yet done so. At that time, the Crown also noted that for the first time that morning she had been made aware that R.D. wanted a Crown screening form so that he could apply for legal aid. The Crown immediately gave R.D. the form. The matter was put over to January 29 to enable R.D. to apply for legal aid and formally retain counsel. The Crown indicated that she would be in a position to proceed to a Crown pre-trial shortly after that.
[11] R.D. testified before me that upon being given the Crown screening form on January 8, 2015, he immediately provided it to Legal Aid and his application was approved that same day.
[12] On January 29, an articling student from Mr. Zoppi’s office appeared. Legal aid had already been approved by that time and Mr. Zoppi was retained. The DVD disclosure was provided to Mr. Zoppi’s office that same day. It is apparent from transcripts both prior to and subsequent to this one, that the DVD was in fact ready to be disclosed for some time prior to that, and at the very latest by January 8, 2015. [6]
[13] R.D. had known since September 26, 2014 that he needed a Crown screening form in order to complete his Legal Aid application. He had consulted with defence counsel, the counsel he eventually retained, from as early as one month after that. Although he knew he needed the form and knew that he did not have the form, he did not raise the matter until January 8, 2015. In particular, he did not raise it at his appearances on October 30 or November 27, on both of which occasions he was assisted by duty counsel and had already consulted with the defence counsel he wished to retain. The Court was advised on October 30, 2015 that Mr. Zoppi had in fact been retained. There is no suggestion that R.D. was deliberately delaying the matter. However, the Crown was clearly unaware that the Crown screening form was required. As soon as the Crown was made aware of this, the form was immediately provided. Since full Crown disclosure was ready on January 8, the delay between January 8 and January 29 is directly attributable to R.D.’s failure to complete his Legal Aid application earlier. That is not to blame or ascribe fault to R.D. However, in my view, the delay nevertheless is attributable to the defence – or at least some portion of it must be.
[14] Given that the total delay only exceeds the ceiling by six days, this period of time alone is sufficient to bring the matter under the Jordan 30-month ceiling.
[15] In addition, I have considered the period of time between February 12 and March 5, 2015. Given that defence counsel had just been retained and had not had time to consider the full disclosure, it was reasonable to adjourn the matter for a short time so that defence counsel could prepare prior to setting a Crown pre-trial date. The matter was therefore put over to February 12, 2015 for that purpose, a date to which defence counsel agreed. However, when counsel appeared on February 12, 2015, he stated that “we have just recently received the complainant’s video statement” and that “we’re just going through it”. Defence counsel therefore requested a further adjournment to March 5, 2015 before setting the pre-trial date. In fact, the total length of the video is under two hours and the defence had it for two weeks before asking for another three weeks to review it and arrange a pre-trial.
[16] Again, it is not a matter of ascribing blame or fault to defence counsel. Nevertheless, the additional three-week adjournment was at the request of the defence, when the Crown was ready to proceed, and indeed had been ready since January 8, 2015. I recognize that a reasonable period of time for defence counsel to prepare is not properly described as delay by the defence. Nevertheless, at least some portion of this time is attributable to defence delay and must be subtracted from the total overall delay.
[17] It is not necessary for present purposes to precisely define the amount of delay attributable to the defence. Suffice to say, it considerably exceeded six days and therefore brought the total delay beneath the 30-month ceiling.
[18] As a result, there is no presumption of prejudice and there is no onus on the Crown to establish that the delay was reasonable. Rather, the onus to establish unreasonable delay lies on the defence.
Analysis: The Defence Has Not Established Unreasonable Delay
[19] To meet its onus of establishing unreasonableness, the defence must show that it took “meaningful steps that demonstrate a sustained effort to expedite the proceeding” and also that the case took “markedly longer than it should have”. Jordan, at para. 82.
[20] As noted by the Supreme Court of Canada in Jordan, it will be an unusual case in which the defence could establish unreasonable delay where the delay is under the 30-month ceiling. The 30-month period was set in light of the inherent delay necessary to process a case and the tolerance for some period of institutional delay as recognized in earlier case law. Jordan, at para. 83.
[21] The Crown submits there are two factors that negate a sustained effort to expedite the proceeding: (1) the delay in bringing this 11(b) application; and (2) the delay in bringing a third party records application.
[22] I do not agree that the delay in bringing this 11(b) application is sufficient to rebut what the defence says is its sustained efforts to expedite. The first trial date for this matter in the Superior Court in Toronto was set for Monday, October 24, 2016. No judge was available that day and, although the trial was held down for two more days, none became available, with the result that the trial was adjourned to Monday, November 28, 2016. By then, the delay was so significantly under the 30-month ceiling that it would not have been reasonable for the defence to contemplate a s. 11(b) application. It was only when the trial could not be heard in the week of November 28th, again because there was no available trial judge, that the possibility of a s. 11(b) application arose. The adjournment of the trial to March 20, 2017 created that possibility as it was now over the 30 months, albeit just barely. Defence counsel took immediate steps to order all of the transcripts required for the application. It is fair to recognize that the holidays during December would have hampered that effort. The transcripts were not received until January 31, 2017. The defence materials for the motion were filed on February 23, 2017. I do not see that amount of delay to be inconsistent with a desire to expedite the trial proceeding.
[23] However, I agree with the Crown’s position with respect to the third party records application. This matter was pre-tried in this Court on February 2, 2017 at which time defence counsel indicated his intention to bring an application to obtain records of counselling provided to the complainant, which records were in the hands of a third party. Defence counsel was directed that the third party records application should be heard prior to the trial date, which is consistent with the protocol in this Court. If third party records motions are returnable too close to a trial date, it is impossible to process them, arrange for a hearing date and provide time for the motion judge to decide the matter and render a decision prior to the trial date. Although defence counsel knew this at the beginning of February 2017, and knew that the trial date was set for October 24, 2017, the third party records motion was not delivered until September 2017, at which point a further period of time was required to be provided for counsel for the complainant to review those records. That did not leave enough time, in a very busy court with an already full docket, to process the application and have it heard prior to the trial date. Therefore, the application was set to be heard for the trial date and was argued before McWatt J. on October 26, 2017. Justice McWatt reserved her decision and subsequently issued written reasons dismissing the defence motion for production.
[24] Even if there had been a trial judge available on October 24, 2016, there was a very real likelihood that the trial date would have to be aborted so that the third party records motion could be heard. Obviously, there was ample time between February and September for the defence to have brought this application in a timely way. The failure to bring the motion well in advance so as not to jeopardize the trial date is not consistent with a “sustained effort to expedite the proceedings” as required under the test in Jordan. That is sufficient to defeat the defence motion to stay the charges for unreasonable delay.
[25] Further, there is no indication in any of the appearances before the Court at any stage that the defence was seeking to press ahead. No concerns were raised, for example, as to any prejudice to the accused or any special circumstances that might have led to his trial date being expedited. There is, of course, no requirement for the defence to do such a thing. However, it is now alleged that R.D. was suffering significantly from anxiety, high blood pressure and other disorders during the time prior to trial and that his conditions were aggravated by stress. If the defence was truly attempting to have the trial heard faster than would normally be the case, there is no evidence of that on the record.
[26] Likewise, the delay in retaining counsel in the initial stages is not consistent with a “sustained” effort to expedite the proceedings.
[27] In addition, the defence has failed to discharge its onus with respect to the second aspect of the test. The delay in getting this case to trial is not a “marked” departure from the reasonable time requirements of the case. In Jordan, the Supreme Court held that for this purpose, the reasonable time requirements of a case “derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.”
[28] This is a serious matter involving charges of incest and sexual assault, including full intercourse, for a six-year period commencing when the complainant was only nine years-old. That said, the issues raised and the evidence involved are not overly complex and do not move the case beyond the average time to deal with a case of sexual assault going back that many years.
[29] The Crown did its part to ensure that this matter moved forward expeditiously. There were no requests by the defence that the Crown do something that were not immediately addressed. For example, when the Crown was made aware that the accused required the Crown screening form in order to make his application to Legal Aid, the Crown immediately provided it, at the courthouse on that same day. Likewise, when the trial dates in October and November were not met, the Crown was most cooperative in scheduling new trial dates in an exceptionally short period of time. There were no delays of any kind attributable to the Crown.
[30] There were, however, delays caused by the circumstances of the Superior Court in Toronto in the fall of 2016. To appreciate the context of the delays that occurred in this case, it is necessary to look at the “local considerations” referred to in Jordan in a manner that is “contextual and flexible.” Jordan, at paras. 87-91 and 94.
[31] Mr. R.D.’s first appearance in the Superior Court was on December 17, 2015. On that date, the matter was adjourned to February 2, 2016, a typical period of time required to process the case in this jurisdiction and to give counsel time to prepare and file pre-trial memoranda. On February 2, 2016 a pre-trial was conducted and October 24, 2016 was set for a 7 day trial with a jury. Again, this is a typical period of time (just under nine months) for cases of that length in this jurisdiction. Under the previous case law these periods of time would have been considered reasonable and s. 11(b) problems would not have arisen.
[32] Toronto has always had a busy criminal trial list, with a higher percentage of complex trials and long trials than is the case for other jurisdictions in the province, and perhaps in the country. Over the past two decades, as the population has grown and both the length and complexity of criminal trials have increased dramatically, there has been no appreciable increase in the number of judges in this jurisdiction. It has therefore become increasingly difficult to manage the Toronto criminal trial list in a manner that ensures a trial is scheduled within a reasonable period of time as required under the Charter. Trial scheduling in Toronto has always required scheduling more trials than can actually be accommodated, with the knowledge that many of those cases will resolve prior to or on the trial date, and that a number of them will have requested adjournments for circumstances beyond the control of the court and the parties. If we scheduled criminal trials in direct relation to the number of courtrooms and judges available, the waiting list for trials would be years long, rather than months long as we have been able to maintain. Therefore, we consistently and significantly overbook criminal trials. This requires careful handling and juggling, based on our historic resolution and adjournment rates. Occasionally, there would be a week when there would not be an available trial judge for one or two trials. However, this occurred rarely and we have, for the most part, been able to reschedule within acceptable timeframes.
[33] Following the release of the Supreme Court of Canada’s decision in Jordan in July 2016, there was a dramatic decline in the number of cases that resolved prior to or on their trial dates. Compounding that problem, there was a serious shortage of trial judges in Toronto due to the failure to appoint new judges as existing judges retired or were appointed to the Court of Appeal. Attempts were made to alleviate the problem by transferring judges to the criminal team from other areas of the court’s work, leaving those groups even more stretched than the criminal team. Many judges, myself included, gave up vacation and non-sitting time rather than see cases dismissed for delay. Notwithstanding those combined efforts, in the fall of 2017 many trial dates could not be met because there simply were not enough judges.
[34] To illustrate, in the eight months from January to July 2016 (prior to the Jordan decision) only four cases were not reached due to a lack of judges and all of those were able to be rescheduled and heard within three months so that no s. 11(b) issues arose. By way of contrast, in the three months from September to November 2016, 22 criminal trials were adjourned because there was no judge available to hear them. Unfortunately, R.D.’s two trial dates were among those not reached.
[35] It was in this context that the institutional delay in this court occurred. For transitional cases, it is relevant to consider the extent to which the parties were in compliance with previous norms considered to be reasonable. The Supreme Court in Jordan emphasized that “change takes time” and that, for most cases already in the system at the time the decision was released, what had previously been considered a reasonable delay should not be converted into an unreasonable one. Jordan, at para. 101. In my view, this is equally compelling logic in considering whether the defence has met its burden of showing that a delay under the 30-month ceiling was nevertheless unreasonable.
[36] Accordingly, I find that the time it took to get this matter to trial, particularly in light of local considerations, was reasonable in all the circumstances, and was clearly not “markedly” in excess of what would be reasonable. Further, and in any event, the defence conduct was not always consistent with a desire to expedite the proceedings. Therefore, the defence has failed to meet its onus of demonstrating unreasonable delay.
Conclusion
[37] For the foregoing reasons, this application is dismissed.
Molloy J.
Released: March 17, 2017