COURT FILE NO.: CR-17-656 DATE: 2019 07 10
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Ryan Morrow, for the Crown
- and -
DWAYNE CAMPBELL Jennifer Budgell, for the Defence
HEARD: June 14, 2019, in Brampton
application for Stay Reasons
L. SHAW J.
Overview
[1] It is alleged that on December 19, 2016, the applicant, Mr. Dwayne Campbell, together with a co-accused, Mr. Gary Dennis, participated in a home invasion of Mr. Kervin Simmons’ home. Mr. Simmons’ 12-year-old daughter, K.B., was home at the time. In the course of robbing Mr. Simmons, it is alleged that K.B. witnessed the events and was also subjected to violent acts by the applicant and the co-accused. A joint trial on a seven-count indictment is scheduled to commence on July 8, 2019. This is the third trial that has been scheduled.
[2] It is not in dispute that the two prior trials were adjourned as a result of the co‑accused’s conduct. On the eve of the first trial, he discharged his lawyer and the trial was adjourned so that he could retain new counsel. The second trial was then adjourned, as the counsel the co-accused had retained, following a successful Rowbotham application, was unavailable on the dates the trial had been scheduled.
[3] The applicant asserts that he has been denied his right to a trial in a timely fashion as a result of delay caused by the co-accused. His position is that this delay is a breach of his s. 11(b) rights under the Canadian Charter of Rights and Freedoms, and he therefore seeks an order to stay the proceedings pursuant to s. 24(1) of the Charter.
[4] The parties are in agreement that the total delay between the charge and the anticipated last day of trial is below the 30-month presumptive ceiling established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. They also agree that the total net delay is 28 months and 26 days.
[5] The issue to be determined on this application is whether the applicant has met the test set out in Jordan, at para. 82, for establishing that the delay is unreasonable. When the delay is less than 30 months, the defence has the burden to show the following:
- That the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and
- That the case took markedly longer then it reasonably should have.
[6] The main area of contention is whether, in order to demonstrate that the applicant took meaningful steps, he ought to have applied for severance of the charges from the co-accused, knowing of the delays caused by the co‑accused. The Crown’s position is that the applicant ought to have done so. The applicant’s position is that the Crown ought to have severed the charges and filed a separate indictment against the applicant, knowing of the potential violation of his right to a trial in a timely fashion and given the co‑accused’s conduct.
[7] To date, the Crown has not agreed to sever the charges, as its position is that it is in the interests of justice that there be a joint trial.
Background
[8] The applicant and co-accused are charged with a seven-count indictment for the following:
- Unlawfully robbing Kervin Simmons contrary to s. 344 (b) of the Criminal Code, R.S.C., 1985, c. C-46.
- Unlawfully robbing K.B. (a minor) contrary to s.344 (b) of the Criminal Code.
- Using an imitation firearm, namely a gun, while committing the indictable offence of robbery contrary s.85 (2) (a) of the Criminal Code.
- With intent to assist himself to commit the indictable offence of robbery, attempting to choke K.B. contrary to s.246 (a) of the Criminal Code.
- Unlawfully confining Kervin Simmons contrary to s.279 (2) of the Criminal Code.
- Unlawfully confining K.B. contrary to s.279 (2) of the Criminal Code.
[9] The applicant also stands charged with failure to comply with a probation order contrary to s.733.1 (1) of the Criminal Code.
[10] The nature of the offence and the age of one of the victims are factors the Crown has considered in maintaining its decision to proceed with a joint trial. There are two victims of this alleged home invasion: Mr. Simmons and his daughter, K.B., who was 12 at the time of the alleged offence. She will be 15 at the time of trial. It is alleged that the applicant and his co-accused entered Mr. Simmons’ home on the morning of December 19, 2016, grabbed Mr. Simmons from behind and tied his wrists and ankles with electrical cords. He was kicked in the face. K.B. was in her bedroom and hid in her closet. She saw a man enter her bedroom with a gun, leave and then return. When he found her, he grabbed her and took her downstairs to where her father was being held. One of the men told Mr. Simmons that unless he gave them everything, he would shoot his daughter in the head. One of the men put K.B. in a chokehold and demanded the code to a safe, which they made K.B. open. The men left the victims confined in a closet and fled the house.
[11] This would have been a terrifying experience for a 12-year-old girl to have witnessed and experienced. The Crown’s concern and the factor that it considers paramount in proceeding with a joint trial is the trauma and re‑victimization K.B. will suffer if she is required to give evidence at two separate trials. This is a legitimate concern, but one that must be balanced with the constitutional right of an accused to be tried in a timely fashion in accordance with the principles as set out in Jordan.
Preliminary Issue
[12] The Crown had initially taken the position that the application should not proceed on the basis that the court did not have a full evidentiary record, as the applicant had failed to provide copies of transcripts from all court attendances, of which there was many, in both the Ontario Court of Justice and the Superior Court of Justice. At the commencement of the hearing, the court was provided with some transcripts, in addition to those that had been filed. After reviewing the matter, the Crown was satisfied that all transcripts had been provided, other than one for an attendance in the Ontario Court of Justice on July 7, 2017. The parties agreed to review the transcript after the hearing and schedule a date for further submissions, if necessary. By way of email correspondence I received, both counsel agreed that no further submissions were necessary based on a review of the transcript from that attendance.
History of the Proceedings
[13] The applicant’s first appearance was in bail court on February 17, 2017. There were 12 attendances in the Ontario Court of Justice before the preliminary hearing, which was scheduled at the court attendance on March 30, 2017. The preliminary hearing commenced on September 8, 2017, and was completed on September 13, 2017.
[14] The matter was first in the Superior Court of Justice on September 29, 2017, and the first trial was set at that attendance for June 11, 2018.
[15] That trial was adjourned on June 1, 2018, as the co-accused had discharged his lawyer and was attempting to retain new counsel. At the court attendance on June 22, 2018, trial dates for a second trial commencing January 21, 2019. When the dates were set, the co-accused had not yet retained new counsel, although he was looking to retain Mr. Jordan Weisz.
[16] There were then a series of court attendances up to January 21, 2019, where the primary focus was on the co-accused’s efforts to retain counsel, his legal aid appeal and the Rowbotham application.
[17] At the court attendance on July 13, 2018, the court was informed that the co-accused’s application to change counsel through legal aid had been denied and he was pursuing an appeal. On that date, counsel for the applicant informed the court that the lawyer whom the co-accused was seeking to retain, Mr. Weisz, would not be available for the January 21, 2019, trial. Counsel for the applicant informed the court that the applicant was prepared to proceed with the trial set for January 21, 2019, and her client was not waiving his s. 11(b) rights. An issue was also raised about the witness, K.B.’s, availability, and the Crown informed the court that it might be seeking to adjourn the trial depending on whether Mr. Weisz was retained.
[18] At the next court attendance on August 10, 2018, counsel for the applicant informed the court that the co-accused’s legal aid appeal had been denied and that he was now pursuing a Rowbotham application. It was expected that Mr. Weisz would be retained, but he was still unavailable for the January 21, 2019, trial. Counsel for the applicant informed the court that there might be an adjournment application brought by the Crown or by Mr. Weisz, once he was retained. She stated that her client wanted to get to trial but if there was going to be an adjournment request, she wanted to know sooner rather than later. At that attendance, the Crown informed the court that it would not be seeking an adjournment of the trial, as it would work with K.B.’s availability so that the trial could proceed as scheduled in January 2019. The trial date remained and Durno J. stated that “It would be with or without counsel for Mr. Dennis”.
[19] At the next four court attendances on September 14, 2018; October 12, 2018; October 16, 2018; and October 23, 2018, the court was advised that the co‑accused’s Rowbotham application was still outstanding. Mr. Weisz never appeared in court on behalf of the co-accused on these dates, as he had not yet been retained pending the outcome of the Rowbotham application. Furthermore, he informed counsel for the applicant that he would not provide dates for his availability to set a new trial date until such time as he was retained. Counsel for the applicant did not appear in court on October 12, 16 or 23, 2018.
[20] At the court attendance on November 20, 2018, the court was informed that the co-accused’s Rowbotham application was successful and that Mr. Weisz intended to bring an adjournment application of the January trial date due to his unavailability on those dates. Counsel for the applicant was not in court that day.
[21] The adjournment application was before Durno J. on December 14, 2018. Both the Crown and the applicant opposed the adjournment application and both indicated that they were ready to proceed to trial. Counsel for the co‑accused indicated that he would be available for a trial in June 2019.
[22] At that attendance, the court inquired if there had been any discussion about severance. The Crown informed the court that one of the witnesses was quite young and he was not inclined to schedule two different trial dates for the applicant and the co-accused, who should be tried together. Durno J. commented that “there are, certainly, significant potential for 11(b) issues for Campbell, who, all he wants to do is have his trial and Dennis has twice adjourned it”.
[23] The application to adjourn was denied and the trial commencing January 21, 2019, was scheduled to proceed with or without the co-accused’s counsel. The matter was adjourned with the expectation that the co-accused would make efforts to retain counsel who would be available for the trial date in January 2019.
[24] At the court attendance on December 20, 2018, the co-accused had not yet made efforts to retain new counsel. At that attendance, an order was made appointing counsel under s. 486.3 of the Criminal Code to conduct cross‑examination of a minor at trial on behalf of the co-accused. At that attendance, the Crown maintained its position that severance was not an option.
[25] The matter was before Durno J. for an update on January 9, 2019, at which time the Crown advised that discussions were underway with a possible defence counsel who would be available to cross-examine the minor witness and potentially might be available for the trial. The Crown’s position remained that the applicant and the co-accused should be tried together.
[26] On January 21, 2019, the trial was adjourned because the co-accused had not yet retained counsel. When the matter was next before the court on January 29, 2019, trial dates were set for a week commencing July 8, 2019.
[27] It is not in dispute that the applicant and the Crown were prepared to proceed to trial on June 11, 2018, and January 21, 2019. Those trials were both adjourned as a result of the co-accused not having counsel available for trial. Those adjournments were not as a result of any delay caused by the applicant or the Crown.
[28] In total, there were 18 attendances in the Superior Court of Justice up to and including January 29, 2019, when a second trial was to proceed.
Position of the Parties
[29] Both parties agree that in deciding an application for unreasonable delay, I must follow the legal framework set out by the Supreme Court of Canada in Jordan.
[30] Based upon the approach established in Jordan, the parties agree that the total delay is 29 months and 11 days. The parties also agree that 15 days is attributable to defence delay, resulting in a net delay of 28 months and 26 days. This falls below the presumptive ceiling of 30 months as set out in Jordan. As such, the applicant has the onus of satisfying the court that the two-part test, set out above, has been met.
[31] I am mindful that in Jordan, the court commented that it expected stays beneath the ceiling to be rare and limited to clear cases: at para. 48. The applicant’s position is that this is such a rare and clear case where the delay is unreasonable.
[32] The focus of the dispute is whether the applicant, by failing to bring an application to sever the charges, did not take all meaningful steps to demonstrate a sustained effort to expedite the proceedings. The applicant’s position is that the Crown ought to have severed the charge, given the delay caused by the co-accused’s conduct. The applicant asserts that he was held hostage by the co-accused’s conduct and that the Crown closed its eyes to the circumstances of the applicant, who had done everything possible to move the matter along: see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at paras. 6-7.
[33] The applicant’s position is that he did not have to move to sever the charges, because until the trial was adjourned on January 21, 2019, the court had indicated that the trial was proceeding, with or without counsel retained by the co-accused. The applicant relied on that and believed that the trial was proceeding and there was therefore no reason to apply to sever prior to January 21, 2019. Furthermore, he opposed the adjournments and at all times did not waive his s. 11(b) rights.
[34] The Crown has maintained its position that the applicant and the co-accused should be tried jointly, as that is in the interests of justice. In circumstances of delay, a tension can exist between an individual’s right to a trial within a reasonable time and the overarching principles that favour conducting joint trials. The applicant’s position is that as it became evident that his right to a trial in a reasonable time was in peril, the Crown ought to have considered that factor in its assessment of whether it was in the interests of justice to proceed with a joint trial. The applicant asserts that the Crown’s failure to do so has led to a violation of his s. 11(b) right to a trial within a reasonable time.
[35] The Crown’s position is that the applicant has not taken meaningful steps to demonstrate a sustained effort to expedite the proceedings, including not applying to sever the charges, and the case has not taken markedly longer than it reasonably should have.
Analysis
Issue One: Did the Applicant take Meaningful Steps?
[36] There is no evidence that the applicant has caused any delay, other than the 15 days that have been taken into account in determining the total net delay. He was prepared to proceed to trial on June 11, 2018, and then again on January 21, 2019. The delay in this case was caused by the co-accused. Delay by one accused, however, should not be attributed to all. “Rather, an individualized approach must be taken to the attribution of defence-cause delay in cases of jointly-charged accused”: R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 128. The focus should be on the conduct of individual players in the justice system.
[37] There are sound policy reasons for conducting joint trials of co-accused, as the interests of justice are most often best served by having people who allegedly committed crimes together, tried together: R. v. Ny, 2016 ONSC 8031, 343 C.C.C. (3d) 512, at para. 42. Joint trials conserve judicial resources, avoid inconsistent verdicts and avoid witnesses having to testify more than once: R. v. Whylie (2006), 208 O.A.C. 247 (C.A.), at para. 24. The presumption of joint trials will only be displaced where the interests of justice require separation. That does not mean, however, that joint trials should necessarily be abandoned when there are delay issues. In Ny, at para. 45, Fairburn, J. commented as follows: “The important policy rationale for keeping joint trials intact must not be lost in the increasing shadow of an approaching ceiling. As the British Columbia Court of Appeal recently held, severance is not a ‘panacea’ when delay arises in a multiple accused trial: R. v. Singh, 2016 BCCA 427, at para. 83.”
[38] The impact of decisions to sever accused and proceed with separate trials must be considered in light of the challenges facing regions such as Brampton, where judicial and courtroom resources are stretched to the limit on a regular basis. Those demands on resources have led to more trials being conducted outside the region. Fairburn J. recognized this challenge in Ny, and since she released her reasons in 2016, the situation in Brampton has become even more challenging.
[39] This challenge to judicial and courtroom resources is only one factor to consider in determining if the interests of justice warrant a joint trial. In this case, one of the main factors animating the Crown’s decision is that there are two victims who will be testifying at the trial. One was only 12 years of age at the time of the alleged home invasion. She will be 15 at the time of trial. The Crown’s position is that aside from issues with resources, an overriding consideration in assessing the interests of justice is the nature of the alleged offence witnessed by a very young victim and the violence that she was exposed to at such a young age. If the indictment is severed, resulting in two separate trials, she will be required to give evidence twice regarding a violent incident that occurred when she was only 12 years old. Giving evidence will no doubt be traumatizing to her. I agree that this is a significant factor in assessing whether a joint trial is in the interests of justice.
[40] Another factor for the Crown to consider in assessing if a joint trial is in the interests of justice is an accused’s right to a trial within a reasonable time. There is an ongoing balancing of interests between an individual’s right to a trial in a reasonable time and the broader policy issues that inform decisions to conduct joint trials. There is no dispute that the Crown has an obligation to continue to reassess whether a joint trial continues to be in the interests of justice. Delay is a factor to consider in determining if the charges should be severed: Gopie, at para. 141. Indeed, “there may come a time when the interests of justice are no longer served by proceeding jointly, including where s. 11(b) rights are in jeopardy”: Gopie, at para. 171.
[41] In Ny, at para. 49, the court also noted that there are different mechanisms that can be used by the Crown in protecting s. 11(b) rights in the context of a joint trial. One of those is severance, but there are also remedies short of severance, including forcing the co-accused to go to trial without counsel or without counsel of choice. Indeed, in this case, the Crown stated in August 2018 that it intended to proceed to trial on January 21, 2019, regardless of whether the co-accused had counsel, and Durno J. confirmed that the trial would proceed with or without counsel on that date. This was an option open to the Crown short of severance.
[42] Regardless of the Crown’s position regarding severance, when an accused is seeking to stay proceedings that are under the 30-month presumptive ceiling, the onus is on the accused to satisfy the court that s/he has taken all meaningful steps that demonstrate a sustained effort to expedite the proceeding.
[43] From a review of the transcripts, it is evident that the Crown had maintained its position to proceed with a joint trial and this was known to the applicant. The Crown’s position was addressed at the court attendances on December 14, 18 and 20, 2018. It was also discussed at the attendances on January 9 and 29, 2019.
[44] At the January 29, 2019, court attendance, counsel for the applicant indicated that she could make herself available for a trial date in February 2019 if the charges were severed. Even at that point, the Crown maintained its position that the accused should be tried jointly and the trial date was set for July 8, 2019, when counsel for the co-accused was also available for trial.
[45] A meaningful or proactive step is something more than stating on the record that you oppose a request for an adjournment and want to proceed to trial on the earliest possible date: see Jordan, at para. 85. In this case, when the Crown made its position known that it would not agree to sever, it was open to the applicant to make that application. Such an application would be a meaningful or proactive step, even if such a request would be unlikely to succeed because of the general desirability that co-accused be tried together: R. v. Rye, 2018 ONSC 7474, at paras. 28-29.
[46] It was open to the applicant to apply to sever when the first trial was adjourned because the co-accused terminated his counsel on the eve of trial. The applicant did not do so. Thereafter, between June 2018 and January 2019, there were a number of court attendances that were essentially tracking the co‑accused’s attempts to retain counsel. The delays were apparent. Nonetheless, even after the second trial was adjourned, again due to the co‑accused’s conduct, the applicant did not apply to sever, knowing that the Crown was not prepared to do so.
[47] The applicant now relies on the Crown’s failure to sever as a basis to assert that his right to a trial within a reasonable time has been violated. This argument would be persuasive, however, had he brought an application to sever, even if its chance of success was doubtful, as the applicant concedes. Had he applied to sever, the applicant would have met the first part of the Jordan test of demonstrating that he had taken meaningful steps to move the matter forward.
[48] The applicant’s position that it was not incumbent on him to bring a severance application, as the court had indicated that the trial was proceeding even if the co-accused did not have counsel, must be assessed in context. When the second trial date was set, it was done before the co-accused had retained counsel. There was a risk, at that time, therefore, that whomever the co-accused retained might not be available for the January 21, 2019, trial. At the court attendances on July 13, 2018, and August 10, 2018, counsel for the applicant indicated to the court that she in fact anticipated a request for an adjournment. She had been in contact with Mr. Weisz, whom the co-accused intended to retain, and he had told her he was not available for the January trial dates and he would not provide her with any dates for his availability until he was retained. Four months later, on November 20, 2018, it was confirmed that the co-accused’s Rowbotham’s application was successful. At that point, Mr. Weisz was retained and it was confirmed that he would be applying to adjourn the trial. The adjournment request was denied by the court on December 14, 2018.
[49] The applicant was therefore aware for five months (between July 2018 and December 2018) that there would be a request for an adjournment, yet did not apply to sever. Until the court heard the request and adjudicated on the matter on December 14, 2018, there was a real risk that the adjournment request could be granted.
[50] When seeking a stay when the delay is under 30 months, the applicant must demonstrate that he was proactive about expediting the proceeding. Passively waiting for the co-accused’s appeal of a legal aid decision and then the outcome of his Rowbotham application is not sufficient. A similar conclusion was drawn in R. v. Belcourt, 2017 ONSC 3934, at para. 90, where the court noted that where an applicant is content to “drift along” with their co-accused, who has caused delay, this is not a meaningful step.
[51] While the applicant in this case could not be expected to have a crystal ball in June 2018 and know that the January 2019 trial was going to be adjourned, the test in Jordan requires meaningful steps. For instance, the applicant could show that he attempted to set the earliest possible hearing dates or conducted applications reasonably and expeditiously: Jordan, at para. 85. In the circumstances of this case, it has not been shown that the applicant proactively took steps to move the matter along expeditiously, which could have been shown, for instance, by applying for severance, knowing of the likelihood of another adjournment request, despite the court’s comments that the trial would be proceeding: see e.g. Belcourt, at para. 93. Again, it is insufficient for the applicant to point to the Crown’s conduct with respect to severance when attempting to show that the accused took meaningful steps.
[52] The applicant asserts that the standard by which meaningful should be assessed is one of reasonableness and not perfection. While I agree, in this case, an application to sever, knowing of the Crown’s position, the co-accused’s conduct and the risk of another adjournment, is not a standard of perfection but one of reasonableness.
[53] While the applicant had no positive duty to bring a severance application, when moving for a stay of the proceedings, the test as set out in Jordan requires a level of diligence that might otherwise not be required. Assuming the trial would proceed while waiting for the co-accused’s counsel to be retained, knowing that he would then move to adjourn the trial, cannot be the kind of sustained effort contemplated in Jordan when seeking to stay a proceeding under the presumptive ceiling. While the applicant had no obligation or duty to be more proactive, when seeking to stay the proceedings for delay based on a violation of s. 11(b) Charter rights below the presumptive ceiling, a sustained effort to expedite the proceedings is necessary.
[54] When the second trial was adjourned, the applicant again took no steps to expedite the trial by moving to sever. Counsel for the applicant indicated that she could make herself available for a trial in February 2019 if the Crown would agree to sever. A meaningful step would have been to apply to sever after the second trial was adjourned and the Crown maintained its position not to sever. Again, the applicant failed to discharge his onus to demonstrate that proactive steps were taken after the second trial was adjourned.
[55] The applicant’s position that his severance application would likely have been denied based on all the principles surrounding joint trials cannot be used as a shield to justify why this meaningful step was not taken. The applicant cannot say that he did not take a step as he did not think he would be successful, and then rely on that same doctrine – severance – as a sword to say that it forms the basis or reason why the trial did not proceed within a reasonable timeframe.
[56] The Crown pointed to other conduct, which it claims demonstrates that the applicant failed to seize the initiative and take meaningful steps to expedite the matter. That conduct included failure to co-ordinate with the co-accused’s counsel, Mr. Weisz, in the fall of 2018, when the co-accused was appealing the legal aid decision and then making a Rowbotham application. I do not agree. The transcripts from those court attendances indicate that defence counsel was in contact with Mr. Weisz, even though he had not yet been retained and was therefore not attending court. She was able to provide the court with updated status reports of the co-accused’s attempts to retain counsel. To suggest that the applicant should have been having discussions with Mr. Weisz and making plans about what to do if the Rowbotham application was denied or if the adjournment was not requested is beyond the type of sustained efforts contemplated by Jordan.
[57] The Crown also took issue with the conduct of this s. 11(b) application and takes the position that the Jordan standard of diligence was not met. The Crown’s position is that this is also a factor for the court to consider.
[58] There is no dispute that the application record did not contain all the transcripts from all court attendances as is required by the rules: see “Provincial Practice Direction Regarding Criminal Proceedings”, (May 1, 2017), at 31-32 (“Practice Direction”). Furthermore, there was a 100-day delay from the date of the second trial adjournment – January 21, 2019 – to when this application was commenced. In addition, the application was not heard 60 days before trial, as is required: Practice Direction, at 24. The Crown asserts that its response to the application was filed late, as it did not receive all the transcripts, namely the transcripts that were ordered on June 6, June 10 and on the week of the hearing. The conduct of this application, it is alleged, demonstrates a lack of diligence and marked inefficiency. The decision by the defence to take a step, as well as the manner in which it is conducted, can attract scrutiny: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32.
[59] The applicant does not dispute that there were issues with the timing of this application and the ordering of transcripts, but points out that all transcripts were eventually available for the hearing and the hearing proceeded as scheduled.
[60] While this application may not have been pursued with the diligence that might otherwise be expected or required, that in and of itself would not form the basis for a finding that meaningful steps were not taken. While it is a factor I have considered, it is not determinative. Rather, it is the failure of the applicant to show that he has proactively taken meaningful steps to expedite the proceedings, such as applying for severance.
Issue Two: Did the Case take Markedly Longer than it Reasonably Should have to Proceed to Trial?
[61] Having found that the applicant did not meet the first branch of the Jordan test, I need not consider the second part of the test. For completeness, however, I will consider whether this trial has taken remarkably longer than it should have.
[62] At this stage of the test, the defence may point to such factors as the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings: Jordan, at para. 87.
[63] The applicant relies on the decision of Harris J. in R. v. Belle, 2018 ONSC 7728, at para. 8, for the proposition that in determining if a case took markedly longer than it reasonably ought to, the court can look at when the first trial date was set as a “ready-made yardstick” of reasonable time requirements for the case. That is when the trial should have been heard and completed. In this case, that would have been by the end of June 2018. The applicant also relied on Harris J.’s comment that in the case before him, an importing matter, the usual delay to get to trial in Brampton is in the range of 10 to 12 months.
[64] The applicant’s position is that the total delay of 22 months, from the date the matter was first before the Superior Court of Justice in September 2017, to the date of trial, is what makes the time markedly longer than is reasonable.
[65] Harris J.’s decision is distinguishable from the facts in this case. In Belle, there was only one accused charged with importing. This matter involves two accused on a multi-count indictment. Harris J.’s comments about the usual delay of 10 to 12 months are also not applicable to a matter involving more than one accused facing more than one count.
[66] This is not a factually or legally complex matter. The charges arise from one alleged home invasion. What drives the complexity, however, is that it is a matter that involves more than one accused, represented by separate counsel. Joint trials may not necessarily increase the legal or factual complexity of a case but do add a level of procedural complexity that can increase the usual delay. Delay caused by proceeding with a joint trial must be accepted as a “fact of life” and must be considered in what constitutes a reasonable time for trial: Vassell, at para. 6.
[67] Having more than one accused in a case is a factor that increases the complexity of a matter and can justify a longer time period to the end of trial. At all times, however, the Crown must take into account how its decision to proceed jointly can delay a matter and impact an accused’s s. 11(b) rights. The applicant did not allege that there was any Crown delay, other than its decision not to sever. Given the impact of a minor testifying twice at trial regarding a violent and traumatic event, the Crown’s decision not to sever was reasonable and in the interests of justice, justifying a lengthier time to the end of trial.
[68] Nor can it be said that the Crown did not take reasonable steps to expedite the proceedings. Similar to the analysis of meaningful steps taken by the accused, the Crown is not held to a standard of perfection: Jordan, at para. 90. In this case, the Crown took such reasonable steps as, for instance, deciding to proceed with a trial on January 21, 2019, despite the issues raised about the co-accused’s ability to find counsel on August 10, 2018, and engaging in discussions with a possible defence counsel to cross-examine the minor witness, as reported to Durno J. on January 9, 2019, a few weeks after the order to appoint such counsel was made on December 20, 2018. Again, as noted previously, the Crown’s decision not to apply for severance was also not unreasonable in the context of the case.
[69] I am therefore not satisfied that this case has taken markedly longer than it reasonably ought to in proceeding to trial.
[70] The application to dismiss for delay is therefore dismissed.
L. Shaw J.