Court File and Parties
COURT FILE NO.: CR-16-90000761-0000 DATE: 20170705 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ANGELINA CODINA
COUNSEL: L. Trefler, for the Crown A. Codina, self-represented
HEARD: June 22, 2017
BEFORE: S.A.Q. Akhtar J.
Introduction
[1] The applicant, Angelina Codina, is a former practising lawyer charged with offences under ss. 91 and 126 of the Immigration and Refugee Protection Act (“IRPA”). The Crown alleges that she provided immigration advice, for payment, to a number of individuals when not authorised to do so (“the first set of charges”). The Crown further alleges that the applicant counselled a client to make misrepresentations on an immigration application (contrary to s. 91(1) of the IRPA) and committed a number of bail violations in respect of the first set of charges (“the second set of charges”).
[2] The applicant was arrested and charged with the first set of charges on 8 May 2014, with the preliminary inquiry commencing on 23 November 2015 in front of Caldwell J. The second set of charges was laid on 17 September 2015 and proceeded to a second preliminary inquiry in front of Ray J.
[3] Both preliminary inquiries were terminated with the Crown’s preferment of a direct indictment on 13 December 2016, resulting in the applicant’s case first appearing in this court on 11 January 2017. On 8 March 2017, the court scheduled an eight-week trial to begin on 11 September 2017. The total delay between the date of charge and time to trial is 40 months.
As a result, the applicant claims her right to a trial within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms has been violated and seeks a stay of the first set of charges. In response, the Crown submits that the applicant’s motion record is deficient, with many critical appearance dates missing from the filed material. Without a full record, the Crown argues that it cannot properly respond to the application. Further, it submits that the court is not in a position to determine the cause of delay and any amount of time to be deducted as result of defence conduct.
The Jordan Framework
[4] The Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27 provided a new framework for the analysis of alleged s. 11(b) violations. Total delay is calculated from the time that an accused person is charged to “the actual or anticipated end of trial.” A new ceiling, for a trial by indictment, of 30 months is the limit at which delay is considered presumptively reasonable. Any delay in excess of that amount is considered presumptively unreasonable unless the Crown can rebut the presumption by demonstrating the existence of exceptional circumstances.
[5] Deciding whether the ceiling has been breached requires the deduction of any delay attributable to the defence from the total delay. If, after that calculation, the period of delay falls below 30 months, it is deemed reasonable. In order to rebut the presumption of reasonableness, it is up to the defence to show it took meaningful steps to expedite proceedings and that the case took markedly longer than it reasonably should have: Jordan, at para. 48.
[6] Turning to the case at bar, the Crown’s position is that the bulk of the delays were caused solely by the applicant’s actions. Accordingly, when defence delay is deducted from the total delay, the time period remaining would fall well within 30 months. The applicant, on the other hand, places responsibility for the delay on the manner in which the Crown proceeded to prosecute without any clear roadmap or strategy. This failing, coupled with the lack of institutional resources, caused the breach of her Charter rights.
Defence Delay
[7] In Jordan, at paras. 61-63, the court took pains to define defence delay as:
(1) delay waived by the defence, and (2) delay that is caused solely or directly by the conduct of the defence.
[8] The latter component means that defence action (or inaction) must be the sole or direct cause of the delay and “illegitimate insomuch as it is not taken to respond to the charges:” R. v. Cody, 2017 SCC 31, at para. 30.
[9] In Cody, the court set out the broad scope of scrutiny required to assess the substance of delay caused by the defence. At paras. 32-33, the court held:
Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s.11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11 (b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).
[10] Without wishing to state the obvious, determining the correct amount of delay to be apportioned requires a full transcript record of the court appearances leading up to the trial date.
The Practice Direction
[11] Responding to the concerns raised by Jordan, this court developed a province-wide protocol governing applications alleging a s. 11(b) violation (“the Practice Direction”).
[12] Paragraphs 31 and 32 of the Practice Direction are reproduced as follows:
Unless otherwise directed by a judge and subject to paragraph 32 below, the applicant’s application record must contain the transcripts of all prior court appearances in the case. Where an appearance included the hearing of evidence and submissions, only the portion of the transcript reflecting discussions about adjournments, scheduling and selection of the next court need be provided.
The court encourages and expects the parties to work together to identify any periods of delay within the case that all parties agree are attributable to the defence or to “exceptional circumstances”, as defined in R. v. Jordan, or (in transitional cases) to one of the five categories of delay identified in R. v. Morin ((i) inherent time requirements; (ii) delay attributable to the accused/defence; (iii) Crown delay; (iv) institutional delay and (v) other reasons for delay). Where the parties reach such an agreement, an agreed statement of fact may be filed with respect to that period, rather than transcripts.
Who Orders the Transcripts?
[13] The Practice Direction is explicit in stating that it is the applicant who must file the transcripts of all previous court appearances. If both sides agree on particular periods of delay, an agreed statement of facts may be filed. The case at bar, however, reveals very little consensus between the parties, both of whom lay the blame for the delay in reaching trial on each other.
[14] Despite the Practice Direction, and the fact that the proceedings began with her arrest on 8 May 2014, the applicant filed transcripts that begin with her court appearance before Caldwell J. on 15 October 2015. The next transcript is dated 23 November 2015, the first date set for the preliminary inquiry. Some of the earlier transcripts were ordered by the Crown but the vast majority from 2014 and 2015 are absent.
[15] The applicant takes the position that the missing transcripts are of no moment as there is no dispute that the 23 November 2015 preliminary inquiry date was set on 27 October 2014. Consequently, the appearances between the two dates have no relevance as the period of delay cannot be disputed. She further argues that if the Crown felt that there was anything of significance in the intervening appearance dates, it was their responsibility to provide those transcripts.
[16] I disagree with the applicant’s argument for the following reasons.
[17] First, as noted, the applicant’s position flies in the face of the Practice Direction. Nor can the applicant be under any misapprehension about the extent of her obligations. At her court appearance on 1 March 2017, McMahon J. informed the applicant of her duty to order all appearance transcripts. When the Crown raised the potential danger of the applicant being selective about which dates she would order, McMahon J. made the following comments:
The Court: What she has to comply with Practice Direction which says that all the adjournment applications when matters are spoken to have to be filed, right that's what the practice direction says. But you can't pick and choose to say I'm going to do the following. Every […] adjournment of the matter or shortening is required as part of her application. We’re all ad idem on that. I think, right? Ms. Codina: Yes, yes, I understand, Your Honour. Ms. Trefler: But that would also include various adjournments in the course of the present inquiry-- The Court: Right. Ms. Trefler: —to [sic] just so that Miss Codina is clear.
[18] Despite that exchange, when I questioned the applicant on her failure to follow McMahon J.’s instructions, she provided a number of excuses, none of which made much sense. Initially, the applicant submitted that she had been told by the transcribing court reporter that, since the Crown had ordered the missing transcripts, the reporter was prohibited from providing further copies to her. I find this account of the reporter’s response to be somewhat surprising as I am unaware of any rule that forbids the multiple ordering of the same transcript - a practice which is very common in criminal cases.
[19] When further quizzed, the applicant appeared to change her account stating that, after being told by the reporter that the Crown had ordered several transcripts, she felt no need to order the same. Again, this explanation makes little sense: the exchange with McMahon J. leaves no room for doubt that the applicant knew it was her responsibility to obtain all of the transcripts. The applicant’s justification also fails to account for the missing transcripts that the Crown did not order.
[20] Secondly, notwithstanding the Practice Direction, the onus of filing all transcripts of prior court appearances always rests upon the party alleging the Charter violation. Since the applicant was advancing the Charter argument and seeking the mandatory remedy of a stay, it was her responsibility to establish the evidentiary record: R. v. Goncalves, [2016] O.J. No. 6818 (Ont. Ct. J.), at para. 11.
[21] Thirdly, even though Jordan represents a recasting of the s. 11(b) analysis by shifting the onus to the Crown once a delay in excess of 30 months is established, that period of delay is only determined after defence delay is deducted. In other words, there is a difference between total delay and the net delay on which the presumptive ceiling is based. It is for the defence to show that the ceiling was breached – something that would require all of the transcripts.
[22] Fourthly, the practical implications of having each party order the transcripts that they would rely upon could lead to a break down in the s. 11(b) process. The Crown would only know which transcripts the defence had ordered when it filed its application. If that occurred very close to the hearing date, there might be insufficient time for the Crown to obtain the transcripts it wished to rely upon. This would be a highly unsatisfactory state of affairs and could not have been what the Supreme Court of Canada had envisioned.
[23] For these reasons, I find that the applicant failed to discharge her obligation to order and file all of the necessary transcripts in this case. Accordingly, I dismiss the s. 11(b) application without prejudice but order that, if it is renewed, the applicant must comply with the conditions set out in court and reproduced as follows:
[24] All transcripts must be obtained and filed with the court and the Crown by 10 July 2017;
[25] The application record will be reviewed by me to ensure that it is complete;
[26] If the record filed by the applicant remains deficient, she cannot renew her s. 11(b) application;
[27] If the applicant complies with these timelines, the s. 11(b) hearing will be held before me on 20 July 2017.
