Court File and Parties
COURT FILE NO.: 811/16 DATE: 20170411
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – BRITTANY TAYLOR Applicant
Counsel: Denys Bradley, for the Crown. Michael Haraschuk and Renee Gregor, for the Applicant.
HEARD: April 7, 2017
BEFORE: R. D. Gordon, R.S.J.
Overview
[1] Ms. Taylor is facing a single count of possessing fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act. She is of the view that she has been denied her right to a trial within a reasonable time and asks that the charge be stayed.
Background Facts
[2] Ms. Taylor was arrested on May 27, 2015 when the police, having searched her bedroom under authority of a search warrant, found 60 fentanyl patches.
[3] She was released on consent pursuant to a recognizance of bail on the morning of her arrest. Her bail conditions were reduced progressively over time when three bail variation requests were consented to by the Crown.
[4] Ms. Taylor elected trial by jury. Her preliminary hearing was conducted on March 21 and 22 of 2015. Pre-Trial motions were heard on December 21, 22 and 23 of 2016. Her trial is scheduled for May 23-25 of this year.
[5] From the date of her arrest to the date of completion of her trial is expected to be 24 months.
The Applicable Law
[6] Section 11(b) of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time.
[7] In the case of R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada redefined the approach to be taken in determining whether a person has been tried within a reasonable time. It prescribed a new framework for analysis of section 11(b) applications and held that, absent defence delay, the trial of charges which proceed in the Superior Court should be completed within 30 months of the information being laid. That 30 month ceiling was set having regard to the tolerance for reasonable institutional delay, prejudice to the accused, as well has the inherent needs and the increased complexity of most criminal cases.
[8] As the delay in this case falls below the 30 month ceiling, the applicable framework is as follows:
Step 1 Calculate the total delay between the date of laying of the information and the date of completion of the trial.
Step 2 Subtract defence Delay. Included in defence delay is delay arising from an express or implied waiver of section 11(b), or delay arising from the conduct of the defence.
Step 3 If the resulting net delay is below the ceiling of 30 months prescribed in Jordan, the delay is presumptively reasonable and the onus falls upon the defence to establish that the delay is unreasonable. To do so the defence must satisfy the court of two things: Firstly, that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and secondly, that the time the case has taken markedly exceeds the reasonable time requirements of the case.
[9] As the charges against Ms. Taylor were brought prior to the release of the decision in Jordan, this is a transitional case and the two requirements of defence initiative and the case taking markedly longer than reasonably required must be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding Jordan; and further, if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before Jordan was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system. [See Jordan paragraphs 99 and 100].
[10] One of the benefits of this new framework for analysis is that it reduces the need to engage in complicated micro-accounting of every day spent reaching the conclusion of trial. Rather, for cases in which the delay is beneath the presumptive ceiling and the accused has taken meaningful and sustained steps to expedite matters that micro-accounting is replaced by a global assessment of whether the case took markedly longer than it reasonably should have. [See Jordan paragraph 111].
[11] Stays for cases in which the delay falls below the presumptive ceiling will be rare and limited to clear cases. [See Jordan paragraphs 48, 83, 101].
Analysis
Step 1 – The Total Delay
[12] Ms. Taylor was arrested and the information laid on May 27, 2015. Her trial is expected to be completed on May 25, 2017. The total delay is therefore two days shy of two years.
Step 2 – Subtract Defence Delay
[13] The Crown has suggested three periods of defence delay.
[14] The first is on June 10, 2015 when Ms. Taylor made her first appearance in the Ontario Court of Justice. Her matter was addressed by counsel Mr. Ticalo who said: “…I understand, Your Honour, that Mr. Venturi will be retained in this matter, but four weeks is going to be required to make arrangements for his retainer.” The matter was therefore adjourned four weeks to July 8. The Crown is of the view that this four week period should be attributed to the defence.
[15] In Jordan the Court held that defence actions taken to legitimately respond to the charge fall outside the ambit of defence delay. Accordingly reasonable defence requests for preparation time, defence applications and defence requests that are not frivolous will generally not count against the accused even if the court and the Crown are ready to proceed. In my view, a four week adjournment for the accused to complete her retainer is action taken to legitimately respond to the charge and does not result in delay.
[16] The second period arose on July 8 when the matter was adjourned a further three weeks at the request of defence counsel to obtain Ms. Taylor’s instructions and because counsel would be on holidays between July 6 and July 20. The matter was adjourned to July 29. I am of the view that even though this request was at the request of counsel for the accused, it was for a purpose generally included in the inherent time requirements of a case. That is, counsel had met with the Crown just a few days previous and did not have the opportunity to discuss the results of that meeting with the accused and obtain her instructions. In any event, there is no evidence that the Crown or the court was ready to proceed in any other way on that July 8. I am not persuaded that this delay should be attributed to the defence.
[17] The third period arises out of the request by defence counsel to have the pre-trial Charter applications scheduled sixty days in advance of trial. In my view, this was a reasonable request made for other than defence purposes. Specifically, it was a request made to allow the trial judge a sufficient opportunity to consider and rule upon the Charter applications before beginning the trial.
[18] There having been no defence delay, the net delay is just under twenty-four months. This is a full six months below the presumptive ceiling set for matters in the Superior Court of Justice.
Step 3(1) – Defence Efforts to Expedite the Trial
[19] The new framework requires the accused to have taken meaningful steps that demonstrate a sustained effort to expedite the proceedings. As noted in Jordan, the court is to consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. In particular, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown in timely notice when delay was becoming a problem, and conducted all applications reasonably and expeditiously.
[20] The record before me reveals the following steps taken by counsel for the accused:
- Within 7 weeks of Ms. Taylor’s arrest, counsel had received disclosure and met with the Crown for what was described as a “counsel pre-trial”.
- On July 29, 2015 defence counsel agreed to set the preliminary hearing for March 21 and 22 of 2016 notwithstanding that all disclosure issues had not yet been resolved. Counsel indicated on the record his concern with respect to delay and that he would be forwarding a letter to the trial coordinator and Crown for earlier dates.
- On July 29, 2015 he wrote to the trial coordinator with copy to the Crown seeking earlier dates for Ms. Taylor’s Preliminary Hearing.
- In a letter addressed to the Crown dated October 15, 2015 defence counsel again indicated his client’s concern about delay.
- Although counsel did not raise delay in his pre-trial brief, the judge conducting the pre-trial on May 16, 2016 made the following entry in her Report to Trial Judge: “No delay issues if trial date w/i 6 mos from now”.
- Thereafter counsel appeared regularly and as required by the court. He indicated his availability on all dates offered for pre-trial applications and trial. Some of those dates were not available to the Crown or Crown witnesses.
[21] Contextually, the concern of the accused relative to delay seems to have been related to the restrictive nature of her terms of release. Specifically, on July 29, 2015, when counsel first raised the issue of delay he phrased it as follows: “I am concerned with respect to delay. I can advise that Miss Taylor’s 21 years old. She has no criminal record. She does have a curfew. She is required to reside at a specific address. I am not opposed to putting those dates down at this juncture, but I would be forwarding a letter to Miss Marcotte, as well as the Crown Attorney, for earlier dates.” And later that same day: “Yes, Your Worship, Miss Taylor is under specific prejudice in relation to this particular matter based on a number of factors, including her age as well as the recognizance of bail…She has a Curfew and she’s required to reside with a specific individual.” Originally, her release terms required that she reside with her surety and be in her residence between the hours of 10:00 p.m. and 7:00 a.m. On August 26, 2015 her recognizance was amended on consent so that she could reside at an address approved by her surety. This was done to allow her to move away from Sudbury to attend school. On January 7, 2016 her recognizance was amended on consent again to require that she be in her residence between midnight and 7:00 a.m. thus allowing her additional social time. Finally, on May 11, 2016 her recognizance was amended once again on consent to remove the requirement that she be in her residence during any particular hours.
[22] As these restrictions lessened, so too did the steps counsel took to expedite her trial.
[23] Counsel for the accused did not attend personally at the Superior Court assignment court. His agent at no time indicated that delay was an issue. He sent no letters to the Superior Court asking that earlier dates be assigned or indicating that he was in any way unhappy with the dates being proposed. The pre-trial brief filed by counsel for the accused did not flag delay as a concern and did not indicate that a section 11(b) application would be forthcoming.
[24] I find that although there were meaningful efforts made by the accused to expedite her trial initially, those efforts largely ceased following counsel’s letter to the Crown of October 15, 2015. There were no further meaningful efforts until the application was filed on December 14, 2016. In these circumstances, I am unable to find that the efforts were sustained.
Step 3(2) – Did the Case take Markedly Longer than it Reasonably Should Have
[25] Even if I am mistaken as to the sustained efforts of the accused to expedite the trial of this case, this is not a clear example of a case taking markedly longer than it reasonably should have.
[26] It is a serious case of possession of fentanyl for the purpose of trafficking. Although the factual matrix of the case is not particularly complex, the defence team has viewed the legal issues arising out of the case as complex with the result that completion of this case will require three evidentiary hearings: the preliminary hearing (over two days at which eight police officers were required to testify), the pre-trial Charter applications (over three days at which four police officers were required to testify) and the trial (which is currently scheduled for three days). The pre-trial applications brought by defence included challenges to the search warrant, the arrest and detention of the accused, her right to counsel, her right to silence, the use of her fingerprints in the prosecution of the offence, and the voluntariness of her statements and actions. The defence factum ran some 43 pages in length (the rules prescribe a factum of 10 pages).
[27] For each hearing, in addition to accommodating the schedule of the court and counsel, the schedules of the various police officers had to be considered. Due to the number and nature of the pre-trial applications, it was reasonable to provide a length of time between their hearing and the trial to allow me an opportunity to consider and formulate my decisions.
[28] Contextually, it is important to consider that in the past the courts have operated at less than full capacity during the summer months in order to accommodate the holiday schedules of judges, court staff, lawyers and potential jurors. It is worth noting that the scheduling of all three hearings was first considered in the spring or early summer of 2015 and 2016 and routinely bypassed all summer dates. This represents institutional delay that has been reasonably acceptable for many years and is a component of the reasonable time requirements of the case.
[29] On consideration of these factors, the time this case has taken does not markedly exceed the reasonable time requirements of the case.
The Issue of Prejudice
[30] Considerable time was spent by counsel on the issue of prejudice to the accused caused by the delay.
[31] In Jordan the court was clear that prejudice will no longer play an explicit role in the section 11(b) analysis [see paragraphs 54, 109 and 110]. The court set out a clear framework for considering cases which fall below the presumptive ceiling and made no mention of prejudice in that framework. Rather, the concept of prejudice is said to underpin the entire framework. It is accounted for in the creation of the ceiling. It is also tied to defence initiative in that one may expect accused persons who are truly prejudiced to be proactive in moving their matters along. [see Jordan paragraph 109].
[32] Indeed, this case is somewhat illustrative of that notion. The defence initiatives to move this case along seem to have been tied to the prejudice caused to the accused by the restrictive bail conditions by which she was bound. As those restrictions were removed the efforts of counsel to move the matter forward expeditiously lessened.
[33] In any event, it is my view that the issue of prejudice does not warrant explicit consideration outside of the analysis of counsel’s meaningful and sustained efforts to expedite the proceedings.
Conclusion
[34] The Accused has not met the onus of establishing that a delay of 24 months in having this case tried is unreasonable. Her application for a stay is dismissed.
R. D. Gordon, R.S.J.
Released: April 11, 2017
COURT FILE NO.: 811/16 DATE: 20170411
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – BRITTANY TAYLOR Applicant
DECISION ON CHARTER MOTION R. D. GORDON, R.S.J.