Court of Appeal for Ontario

Date: December 28, 2018

Docket: C63752

Judges: Sharpe, Juriansz and Roberts JJ.A.

Between

Her Majesty the Queen Appellant

and

Marek Albinowski, Wladyslaw Pipien and Robert Fitzsimmons Respondents

Counsel

Allyson Ratsoy, for the appellant

John Hale, for the respondents

Heard: August 16, 2018

On appeal from: The judgment of Justice Rick Leroy of the Superior Court of Justice, dated April 20, 2017, with reasons reported at 2017 ONSC 2260, 382 C.R.R. (2d) 195.

Roberts J.A.:

Overview

[1] This is a Crown appeal from the trial judge's stay of the proceedings against the respondents pursuant to their s. 11(b) Canadian Charter of Rights and Freedoms application. The trial judge found that the respondents' rights had been violated because of the unreasonable delay in bringing their matter to trial.

[2] The respondents faced charges of conspiring to smuggle ten Polish nationals from Canada into the United States, contrary to ss. 465(1)(c) and (3) of the Criminal Code, R.S.C. 1985, c. C-46, and s. 117 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. One of the respondents, Mr. Albinowski, was also charged with the possession and proceeds of crime, contrary to s. 355(a) of the Code.

[3] The information was sworn November 13, 2014, and the respondents' five-week joint trial was expected to conclude March 8, 2018. The total delay that the trial judge considered on the respondents' s. 11(b) application was 39.75 months.

[4] The trial judge determined that almost a third of the delay arose from delay in scheduling the judicial pre-trial conferences and preliminary inquiry. He characterized most of this delay as institutional delay and held it was not justified by any exceptional circumstance or transitional exceptional circumstance under the framework set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[5] For the reasons that follow, I would allow the appeal. In my view, the trial judge erred in his application of the Jordan framework. In particular, he mischaracterized the delays due to defence counsel unavailability as institutional delay.

Basic Jordan Analytical Framework

[6] This case was in the system some 20 months before Jordan ushered in the new framework for s. 11(b) applications. As Jordan instructs, and as the trial judge acknowledged, the new framework applies to any case in the justice system when Jordan was released. This court must apply the Jordan framework to determine whether the application was wrongly decided, as the Crown alleges. It is therefore useful at the beginning of these reasons to set out a summary of the now well-known Jordan framework that governs the s. 11(b) analysis in this case. As this court compendiously stated in R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 26, leave to appeal refused, [2018] S.C.C.A. No. 135:

In brief, under Jordan a delay from the date of the charge to the actual or anticipated end of trial in Superior Court (minus defence delay) is presumptively unreasonable if it exceeds 30 months. To rebut this presumption, the Crown must establish "exceptional circumstances". Exceptional circumstances generally fall into two categories: (1) discrete events, and (2) particular complexity arising from the evidence or the issues. The Crown may also rely on a "transitional exceptional circumstance" for cases that were already in the system pre-Jordan. A transitional exceptional circumstance will apply if the Crown can establish that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed.

The Trial Judge's Reasons on the s. 11(b) Application

[7] Applying the Jordan framework in this case, the trial judge began his analysis by noting that the delay from the swearing of the information to the anticipated end of the trial was 39.75 months. He then turned to consider two specific periods of delay, which the Crown sought to characterize as defence-caused delay because they arose from the inability to coordinate the schedules of three defence counsel: (a) the 2.75-month delay in scheduling three judicial pre-trials prior to the preliminary inquiry; and (b) the approximate 8-month delay in scheduling the three-week preliminary inquiry. [1]

[8] These two periods of delay are set out in detail below.

(1) Delay Related to the Scheduling of the Judicial Pre-Trials:

(a) April 10, 2015 to May 8, 2015: One Month of Delay

[9] The court offered April 10, 2015 for the first judicial pre-trial. On that day:

• Mr. Miller, counsel for Mr. Pipien, was unavailable due to another trial matter for another client.
• The Crown and the other two defence counsel were available and ready to proceed.

[10] The parties ultimately scheduled the first judicial pre-trial for May 8, 2015.

(b) June 5, 2015 to June 25, 2015: Three Weeks of Delay

[11] The court offered June 5, 2015 for a second judicial pre-trial. On that day:

• Mr. Miller was again unavailable due to another trial matter for another client.
• The Crown and the other two defence counsel were available and ready to proceed.

[12] The parties ultimately scheduled the second judicial pre-trial for June 25, 2015.

(c) August 21, 2015 to September 25, 2015: One Month of Delay

[13] The courts offered August 21 and 28, 2015 for a third judicial pre-trial. On those days:

• Mr. Johnson, counsel for Mr. Fitzsimmons, was unavailable.
• The Crown and the other two defence counsel were available and ready to proceed.

[14] The parties ultimately scheduled the third judicial pre-trial for September 25, 2015.

[15] On the s. 11(b) application before the trial judge, the Crown submitted that this entire period of 2.75 months ought to be attributed to the defence as a whole.

[16] The trial judge disagreed. In his view, the 2.75 months of delay in scheduling the judicial pre-trials ought not to be attributed to the defence because this delay "related solely to scheduling" and "[a]ll parties were ready to proceed." He held it was "[t]he Court's schedule [that] could not accommodate the reasonable availability and reasonable cooperation of defence counsel any sooner than it did": at para. 22.

(2) Delay Related to the Scheduling of a Three-Week Preliminary Inquiry: [2]

(a) January 11, 2016 to September 12, 2016: Eight Months of Delay

[17] Trial coordination offered the parties five consecutive weeks in which to schedule the three-week preliminary hearing: January 11-15, 18-22, and 25-29, and February 1-5 and 8-12, 2016. For those weeks, availability was as follows:

• Messrs. Johnson and Miller were unavailable from January 11-15.
• Mr. Miller was unavailable from January 18-22.
• Mr. Johnson was unavailable from January 25-29.
• The Crown and Mr. Sheard, counsel for Mr. Albinowski, were available on all dates offered in January.
• All defence counsel were unavailable on all dates offered in February.
• The Crown was available on all dates offered in February.

[18] Trial coordination also offered the following dates in the summer: July 25-29, and August 15-19 and 22-26, 2016:

• Mr. Johnson and Mr. Sheard were unavailable on all those dates.
• The Crown and Mr. Miller were ready and available on all those dates.

[19] Finally, the court offered September 12-16, 19-23, and October 17-21, 2016. All counsel were available and the preliminary inquiry proceeded on September 12, 2016. Ultimately, the parties only required 10 out of the 15 days set aside for the preliminary inquiry.

[20] The trial judge rejected the Crown's submission that the responsibility for the delay in scheduling the preliminary inquiry should be ascribed to the defence. The trial judge accepted the defence's submission that the January and February 2016 preliminary hearing dates, which were offered in the days leading up to the remand appearance on October 6, 2015, did not permit "sufficient time to prepare for a multiple week preliminary hearing": at paras. 23, 28. He noted that, "[a]t the time, the institutional time lapse once the parties were ready to proceed to preliminary hearing was twelve to fifteen months" and the earlier dates had "opened up ad hoc exceptionally": at para. 24.

[21] The trial judge found that defence counsel had scheduled court work "as long beforehand as October 2014" and "could not free up the same 3-week time window for January/February 2016 in October 2015": at para. 26. He held this was "consistent with the Court's expectation of a twelve to fifteen-month interlude between readiness for the preliminary hearing and the hearing" and "[t]he dates set for the hearing accorded with practice in that court at the time": at para. 26.

[22] Determining that "defence counsel were locked into these delay expectations when the earlier dates were offered", the trial judge concluded that pre-Jordan "counsel availability expectations were operative in October 2015": at para. 27. Therefore, he characterized the period from January 11 to July 25, 2016 as institutional delay. This left 1.6 months of delay from July 25 to September 12, 2016, which he attributed to the defence collectively.

[23] After deducting the delay that he attributed to all the respondents, the trial judge calculated that the remaining delay was 38.15 months.

[24] The trial judge did not find any exceptional circumstances that could rebut the presumption of unreasonable delay. In particular, he found, at para. 33, that "this prosecution does not fall into the category of a particularly complex prosecution." He also found that the transitional exceptional circumstance did not apply to justify the delay. The trial judge stayed the charges.

Issues

[25] The Crown submits that the trial judge made the following errors:

(1) He mischaracterized delay due to defence counsel unavailability as institutional delay;

(2) He found that the case was not complex and did not give rise to exceptional circumstances; and

(3) He failed to apply the transitional exceptional circumstance.

[26] In my view, this appeal turns on the first ground. It is therefore unnecessary to consider whether the trial judge erred in his assessment of the other factors in the Jordan analysis.

Analysis

(1) Standard of Review

[27] It is well-established that while deference is owed to the trial judge's underlying findings of fact, the characterization of the periods of delay and the ultimate decision as to whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.

(2) Did the Trial judge Mischaracterize Delay due to Defence Counsel Unavailability as Institutional Delay?

[28] The Crown submits that the trial judge erred in characterizing delay due to defence counsel unavailability as institutional delay because he relied on the dicta from R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that asserts defence counsel need not hold themselves in a state of perpetual availability for the purpose of scheduling steps in a proceeding, and are therefore not required to accept the first available date offered ("the Godin principles"). The Crown argues that the analytical framework in Jordan has overtaken the Godin principles, and requires courts to attribute delay to the defence from the first date the Crown and court are ready to proceed, but the defence is not. In the alternative, the Crown submits that the Godin principles, which arose in the particular circumstances of that case, do not apply here because several dates were offered to and rejected by defence counsel due to their unavailability.

[29] The respondents submit that the Godin principles are still good law and were appropriately applied by the trial judge.

[30] In my view, the trial judge erred in his characterization of delay due to defence counsel unavailability as institutional delay. His reliance on the Godin principles was misplaced.

[31] The Godin principles applied by the trial judge appear in para. 23 of the Supreme Court's decision, as excerpted below:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry — efforts which were ignored — suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable." [Emphasis added.]

[32] It is important to recall the circumstances under which Cromwell J. for the Supreme Court made these statements. The determination in Godin, that defence counsel was not responsible for one month and a half of delay because he was not available on the earliest date offered for the rescheduled preliminary inquiry, was grounded firmly in the circumstances of that case – specifically, the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings.

[33] That is not the present case. Here, defence counsel rejected multiple dates offered for the scheduling of the judicial pre-trials and the preliminary inquiry. The reason for their unavailability was clear: they were engaged with previously scheduled professional commitments. Their unavailability was not related to "defence actions legitimately taken to respond to the charges", such as "preparation time" and "defence applications and requests that are not frivolous": Jordan, at para. 65. Thus, as Jordan further directs, at para. 64, their unavailability, when the Crown and court were available, fell squarely within the category of delay that counts against the defence:

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.

[34] This court in Picard, at para. 113, similarly recognized the inapplicability of the Godin principles when more than one single available date is offered. This court upheld the trial judge's attribution of delay to the Crown because of Crown counsel's unavailability on any of the dates offered in a five-month period:

Furthermore, the situation in Godin is not comparable to what occurred in this case and does not stand for the proposition advanced by the Crown. In Godin, the court held that it was an error to attribute delay to the defence as soon as a single available date is offered to defence counsel and not accepted. The court noted that s. 11(b) requires reasonable availability and cooperation, but does not require defence counsel to "hold themselves in a state of perpetual availability." In the present case, the delay in question did not arise from Crown unavailability on a single date, but from Crown unavailability on any of the dates offered in a five-month period.

[35] The trial judge in the present case erred by failing to undertake the analysis of defence delay required under the Jordan framework and by applying the Godin principles, which have no application to the circumstances of this case. As a result of these errors, his analysis is not owed deference and must be undertaken anew.

[36] How then is delay to be assessed in this joint trial? The trial judge did not have the benefit of this court's decision in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, which sets out an analytical framework for the assessment of delay in joint trials with multiple accused. Gopie instructs that "an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused": Gopie, at para. 128. This approach avoids "attributing to an accused the delay caused by the actions or inactions of a co-accused [which] is inconsistent with the approach and language of Jordan": Gopie, at para. 136.

[37] In my view, however, the individualized approach in Gopie does not apply in this case because the delay was common to all respondents who proceeded as a collective in this joint trial. Here, the actions or inactions of a co-accused did not cause the delay. Rather, the delay at issue was entirely due to scheduling challenges, which arose directly and inevitably from the respondents' joint situation.

[38] Not only is it common ground that joint proceedings were justified in this case (especially in light of the coordinated nature of the allegations), all parties accepted that severance was never an option. As Mr. Albinowski's counsel submitted before the trial judge on the s. 11(b) application, a severance application would have amounted to the kind of defence conduct decried under the Jordan framework. In essence, the defence presented a united front. For example, during the s. 11(b) application, counsel for Mr. Pipien commenced his submissions by stating he was speaking on behalf of the two other defence counsel. Moreover, each defence counsel largely endorsed the others' submissions on the application. Because the defence proceeded through the system as a collective, the delay caused by scheduling challenges must be analyzed in the same manner – that is, communally.

[39] I acknowledge that "[t]here 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. But that is not this case. None of the respondents were held "hostage" by his co-accused's counsel's unavailability: Gopie, at para. 171; see also R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 7; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 323, leave to appeal refused, [2016] S.C.C.A. No. 513. Rather, the interests of justice favoured proceeding against the respondents jointly: Gopie, at para. 174. Further, as discussed below, the Crown made reasonable, though unsuccessful, efforts to expedite the proceedings.

(a) The 2.75-Month Period in Scheduling the Three Judicial Pre-Trials

[40] In my view, the trial judge erred in ascribing the 2.75 months of delay to institutional delay. The entire period should have been characterized as defence delay because of the unavailability of defence counsel in a joint trial, where the defence proceeded as a collective.

[41] The trial judge concluded that the 2.75-month delay resulting from the scheduling of the three judicial pre-trials was accounted for in the presumptive ceiling under Jordan because "[a]ll parties were ready to proceed" during this time period but "[t]he Court's schedule could not accommodate the reasonable availability and reasonable cooperation of defence counsel any sooner than it did": at para. 22. Respectfully, this is not accurate.

[42] First, it is necessary to put into perspective that generally speaking, it is unusual for a case to require three judicial pre-trials prior to the preliminary inquiry, yet the court was able to offer seven dates for these pre-trials within a 2.75-month period. This reflects a flexibility in court scheduling that belies complacency.

[43] Second, while the Crown and court were available on all these dates, the three defence counsel were not available on all the same dates. The trial judge made an overriding and palpable error in holding that "[a]ll parties were ready to proceed" during this time period: at para. 22.

[44] As a result, after deducting the defence delay, the net delay at this point in the analysis for all the respondents was 37 months.

(b) The 8-Month Period in Scheduling the Preliminary Inquiry

[45] As already noted, the trial judge characterized the approximate 6.4-month period from January 11 to July 25, 2016 as institutional delay, and the 1.6-month period from July 25, 2016 to the start of the preliminary inquiry on September 12, 2016, as defence delay. In my view, the trial judge erred by mischaracterizing the initial 6.4 months of defence delay as institutional delay.

[46] Crown counsel argues that all the delay following the very first date offered for the preliminary inquiry must be assessed as defence delay. I disagree with such a categorical approach. It is necessary to consider the circumstances of this case. The Crown and court demonstrated the requisite scheduling flexibility demanded by Jordan to accommodate the three-week preliminary inquiry. Specifically, eight sets of dates were offered over a short period of eight months but not all defence counsel were available on the same dates. The trial judge properly characterized as defence delay the July and August dates when defence counsel were unavailable. However, he erred in failing to characterize the period of delay resulting from the rejection of the January and February dates as defence delay.

[47] In the circumstances of this case, it is appropriate to characterize as defence delay the period from January 11, 2016 to September 12, 2016. This was not a question of fitting in one or two days, but of the court and the Crown accommodating a three-week preliminary inquiry requested by the respondents. Moreover, these dates were offered to the parties three months in advance.

[48] The trial judge erred when he accepted the defence's position that "[t]he dates offered in January and February 2016 did not permit proper preparation" and thus should not be counted against the defence: at paras. 23, 28. As I read his reasons, the trial judge's starting point was that, because defence counsel expected a delay of 12 to 15 months before conducting a preliminary inquiry, they could not be expected to have dates available earlier, as they needed time to prepare for or conduct the hearing should earlier dates become available. The trial judge described the commitments counsel had made as being consistent with the court's expectation of the interlude between readiness for the preliminary hearing and the hearing, and that the dates ultimately set for the hearing accorded with the court's practice at the time: at para. 26. On this basis, the trial judge refused to characterize this period as defence delay.

[49] First, as already noted, these dates were offered three months in advance. Second, three judicial pre-trials had already been conducted, presumably fleshing out the issues to be addressed at the preliminary inquiry. Third, the witness list had already been settled. The Crown planned to call five necessary witnesses plus ten witnesses at the request of the defence. Expecting defence counsel to be available in these circumstances does not amount to insisting that they "hold themselves in a state of perpetual availability", particularly in the post-Jordan era. Here, the plain fact is, as stated in Jordan, "the court and the Crown [were] ready to proceed, but the defence [was] not": Jordan, at para. 64.

[50] In my view, the trial judge's analysis ignores Jordan's call for "[a] change of direction" and the need to break the "culture of complacency towards delay [that] has emerged in the criminal justice system": Jordan, at paras. 5, 40. Jordan imposes an obligation on all actors in the criminal justice system, including defence counsel, to alleviate the delays that have plagued the criminal justice system. As I have already noted, Jordan holds that "the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not": Jordan, at para. 64. That is precisely what happened in this case. Post-Jordan, counsel – both the Crown and defence – are not entitled to rely on the way things have always been done. Jordan demands change. While the dates may have been unexpected, the fact is that the court was able to offer dates allowing a reasonable time for the defence to prepare for and conduct the preliminary inquiry in this case. The Crown was ready to proceed on those dates but not all three defence counsel were – at least at the same time.

[51] I can certainly understand why, in the circumstances of this case, it might have been difficult for three busy defence counsel to coordinate their schedules in order to conduct a multiple-week preliminary inquiry in three months' time. The preliminary inquiry was scheduled before Jordan was decided and everyone was working under the framework and state of affairs that existed pre-Jordan. However, the respondents cannot insist on the strict application of the Jordan ceiling, and at the same time, excuse the delay they caused because they were relying on pre-Jordan conditions. Jordan holds, at para. 96, that the "transitional exceptional circumstance [exception] will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed." If the delay occasioned by defence counsel's refusal of earlier available dates for the judicial pre-trials and preliminary inquiry does not constitute defence delay because they relied on pre-Jordan scheduling practices, then the transitional exceptional circumstance should apply.

[52] Accordingly, I would characterize the entire eight months as defence delay.

[53] This leaves a remaining delay of 29 months for all the respondents.

Remaining Delay

[54] Jordan instructs that when the remaining delay is at or under the 30-month presumptive ceiling, the defence bears the onus of demonstrating that the delay is unreasonable. To do so, the defence must show that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have. Absent both these factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should be granted only in clear cases. See: Jordan, at paras. 82-83.

[55] The respondents do not argue that if the remaining delay is at or under the Jordan ceiling, it is therefore unreasonable. While there were no defence delay tactics, the evidence does not reveal any meaningful steps that the respondents took to expedite the proceedings, nor that the case took markedly longer than it reasonably should have. The respondents appeared content with the pace of the joint proceedings.

[56] In contrast, Crown counsel's efforts to expedite the proceedings were in keeping with the guidance provided by Jordan as to the kind of reasonable steps that are expected from the Crown to attempt to avoid delay. While not an exhaustive list, these "might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means": Jordan, at para. 70. Certainly, Crown counsel's endeavours in this case of proposing a paper preliminary inquiry, offering to fragment the trial, and seeking various admissions fell well within the Jordan description of reasonableness. And, as Jordan directs, at para. 70, "[t]he Crown, we emphasize, is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay."

[57] For these reasons, I conclude that had the trial judge applied the correct approach, he would have determined that defence delay amounted to 10.75 months of delay in this case and that the remaining 29 months of delay were reasonable.

[58] As a result, I would dismiss the respondents' s. 11(b) applications.

Disposition

[59] For the reasons given, I would allow the appeal and order that the charges against the respondents proceed to trial.

Released: December 28, 2018

"L.B. Roberts J.A."

"I agree. Robert J. Sharpe J.A."

"I agree. R.G. Juriansz J.A."

Footnotes

[1] I have calculated the delay in scheduling the preliminary inquiry by counting the time between when the preliminary inquiry could have started (January 11, 2016) to when it actually did start (September 12, 2016). This results in a delay period of eight months.

[2] The record reveals that the defence requested three weeks for the preliminary inquiry. At the final judicial pre-trial, the judge recommended setting two weeks in a row and an additional week at a later date in the event that the defence required the third week.