Court of Appeal for Ontario
Date: February 23, 2018
Docket: C57007
Justices: Watt, Huscroft and Trotter JJ.A.
Between
Her Majesty the Queen Respondent
and
Ronald Faulkner Appellant
Counsel:
Ronald Faulkner, in person James Carlisle, amicus curiae
Hannah Freeman, for the respondent
Heard: August 29, 2017
On appeal from the decision given on April 10, 2013 by Justice Michael Code of the Superior Court of Justice, sitting without a jury, dismissing a motion to stay proceedings, with reasons given on May 23, 2013 and reported at 2013 ONSC 2373, and from the conviction entered on April 11, 2013 by Justice John B. McMahon of the Superior Court of Justice, sitting without a jury.
Watt J.A.:
Introduction
[1] On November 27, 2008 Ronald Faulkner was arrested on five counts of criminal harassment. The charges alleged offences over a period of about six weeks. Each involved the same complainant, a former lover of Ronald Faulkner.
[2] Over the next three years, Ronald Faulkner got arrested again. Six times. Nothing changed. Same victim. Similar conduct. Sometimes charged as criminal harassment, at other times, as failure to comply with a recognizance. Sometimes detained, other times released.
[3] In early April, 2013, Ronald Faulkner appeared for trial in the Superior Court of Justice. The indictment contained 17 counts, a mélange of criminal harassment, failures to comply and obstruction of justice. Assisted by amicus, Ronald Faulkner asked the judge to stay proceedings because he had not been tried within a reasonable time. The judge disagreed and dismissed the motion for a stay.
[4] On April 11, 2013, the day after the motion to stay proceedings was dismissed, Ronald Faulkner appeared before a different judge of the Superior Court of Justice. He pleaded to guilty to 5 of the 17 counts in the indictment. A month or so later, the judge suspended the passing of sentence and ordered Ronald Faulkner to comply with the terms of a probation for three years. By then, Ronald Faulkner had spent 663 days in custody since his first arrest.
[5] Ronald Faulkner thinks the judge who refused to stay proceedings against him for unreasonable delay (the motion judge) got it wrong. That judge, Faulkner says, didn't apply what was then the law correctly. But even if the motion judge got it right the first time, the law is different now and warrants entry of a stay of proceedings by this court.
[6] These reasons explain why I have concluded, not only that the motion judge got it right under what was then the law, but also that the result is the same under the current regimen for assessing claims of s. 11(b) infringement.
The Background Facts
The Issues
[7] The issues in this appeal do not require any extended discussion of the circumstances of the offences Ronald Faulkner is alleged to have committed. It is enough to say that they followed the complainant's termination of a lengthy intimate relationship with Faulkner. The charges relate to the nature and extent of Faulkner's contact with the complainant after her termination of the relationship, including his persistent contact in breach of the terms of various recognizances by which he was bound.
[8] Of greater importance to the issues raised and the remedy claimed in this court is a journey along the long and winding road these proceedings have followed from charge to final disposition and the manner in which the motion judge treated them in his s. 11(b) analysis.
The Chronology
October 15, 2008 – February 20, 2009 (4 Months)
[9] This period begins with the laying of the first information charging Faulkner with five counts of criminal harassment and ends with the first judicial pre-trial in the Ontario Court of Justice. Ronald Faulkner was arrested on November 27, 2008 and released from custody on a recognizance. He was re-arrested twice during this period on charges of failure to comply with his recognizance and ultimately detained in custody.
[10] During this period, the usual intake activities took place. The retention of counsel. The conduct of show cause and review hearings. Crown disclosure. The arrangement of a judicial pre-trial.
[11] The motion judge considered this period as "the neutral intake period", a characterization with which amicus agreed, and neutral in his s. 11(b) analysis.
February 20, 2009 – September 8, 2009 (6.5 Months)
[12] During this period, the Crown elected to proceed by indictment. Faulkner elected trial in the Ontario Court of Justice. The trial was to be held on three separate informations on which Faulkner was then charged. The trial was estimated to require 15 days of court time. Trial dates were fixed for September and October, 2009.
[13] Within this time frame, Faulkner had counsel who engaged in resolution discussions with the Crown. Judicial pre-trials and case management continued. Faulkner discharged his first lawyer. He hired a second who advised the court that Faulkner had changed his election and now wanted a preliminary inquiry. The estimate for the preliminary inquiry was 8 or 12 days, depending on the success of a Crown application under s. 540(7) of the Criminal Code. A bail review took place over two days. Before it was dismissed, Faulkner discharged his second counsel. Shortly thereafter he retained his third lawyer, who had limited availability on the dates already scheduled for the preliminary inquiry.
[14] The motion judge concluded that the parties were never ready to proceed with either a trial or a preliminary inquiry until the end of this time period. Faulkner required time to retain new counsel on two occasions. New counsel required time to prepare, including to review a "very large brief". Ongoing judicial case management was necessary to move the proceedings along.
[15] This entire period – six and one-half months – was characterized as inherent or necessary delay, although the motion judge recognized that part of it could be viewed as defence delay because its genesis was in Faulkner's firing and hiring of lawyers. The systemic delay clock had not yet begun to run.
September 8, 2009 – November 2, 2009 (2 months)
[16] On the first day of the scheduled preliminary hearing, the Crown and Faulkner's third counsel, an experienced and respected member of the Toronto defence bar, reached a resolution. Faulkner pleaded guilty to a single count of criminal harassment and four counts of breach of recognizance. However, as the day wore on, the resolution fell apart, primarily because Faulkner changed his position about admitting one of the essential elements of criminal harassment. The presiding judge struck the guilty pleas.
[17] As a result of the disintegration of the resolution agreement and her inability to abide by the Law Society Rules in continuing her solicitor-client relationship with Faulkner, the third counsel was permitted to withdraw, leaving Faulkner unrepresented. A Rowbotham application failed.
[18] Because Faulkner was unrepresented, the judge presiding at the preliminary inquiry appointed counsel to cross-examine the complainant under s. 486.3 of the Criminal Code. Appointed counsel also responded to the Crown's motion under s. 540(7) of the Criminal Code. The motion was granted.
[19] When the preliminary inquiry resumed one month later on October 22, 2009, appointed counsel was "not prepared to proceed" with the cross-examination of the complainant. Following the complainant's testimony-in-chief, appointed counsel had sought further disclosure, which the Crown provided on the morning of October 22, 2009. Appointed counsel sought an adjournment beyond the next scheduled date. The preliminary judge dismissed the application.
[20] When the preliminary inquiry resumed on November 2, 2009, appointed counsel indicated that she was again unable to proceed. She had prepared 130 pages of questions. Faulkner had also prepared a "massive amount of questions". He insisted on reviewing counsel's 130 pages of questions. During a recess granted to permit counsel and Faulkner to review the questions, Faulkner read only one page of counsel's proposed questions.
[21] When court resumed after the recess, appointed counsel informed the judge that she could not proceed because Faulkner had not read the questions or given her instructions. As a result she was not prepared to properly represent him. Faulkner said nothing to contradict what counsel had said. As the discussion about proceeding progressed Faulkner made insulting or defiant comments to the judge, who ultimately ordered Faulkner's removal from the courtroom. The judge then discharged appointed counsel, ruled that "the witness is not required to testify anymore" and, after hearing closing submissions from the Crown (not Ms. Freeman), committed Faulkner for trial on some of the charges.
[22] The motion judge considered that two months was a reasonable period of time within which to complete the preliminary inquiry in the circumstances in this case. He pointed out that among the difficulties that arose during this period were:
i. Faulkner's constructive dismissal of his third counsel;
ii. the appointment of s. 486.3 counsel and the need for her to get ready to cross-examine the complainant on short notice; and
iii. the erroneous belief of Faulkner and appointed counsel that Faulkner was entitled to review and approve each question to be asked in cross-examination.
[23] As a result, the motion judge characterized the entire two-month period as inherent or necessary delay, thus as neutral in his s. 11(b) analysis.
November 2, 2009 – February 26, 2010 (4 months)
[24] This period begins with the order that Faulkner stand trial and concludes with the completion of the first judicial pre-trial in the Superior Court of Justice.
[25] Ronald Faulkner filed a motion to quash his committal for trial. A judge of the Superior Court of Justice appointed amicus to assist Faulkner in the preparation and argument of his motion. Faulkner tried but failed to retain a fourth counsel and filed another Rowbotham application. He conducted a four day bail review hearing, but remained in custody.
[26] On the return on the motion, the presiding judge offered Faulkner a trial date in April 2010. With one minor exception, Faulkner abandoned his motion to quash and said that he would not advance any s. 11(b) Charter claim if his trial were held in April, 2010. The judge dismissed the Rowbotham application, but appointed counsel under s. 486.3, a lawyer whose integrity and work ethic Faulkner lauded, unlike any of his prior counsel whose ethics and integrity he was quick to assail on the Rowbotham motion. In an ominous sign, Faulkner described appointed counsel's reception of 75 pages of his (Faulkner's) required questions for the cross-examination of the complainant.
[27] Ronald Faulkner then told the presiding judge about a third party records application he proposed to make. Although initially resistant to the suggestion, Faulkner ultimately agreed to an expansion of the mandate of counsel appointed under s. 486.3 to assist him with the proposed third party records application and yet another motion under s. 276 of the Criminal Code.
[28] The motion judge did not arrive at a final characterization of this time period. He was prepared to assume, in light of the several motions, outstanding or proposed, that the time could be considered as intake in the Superior Court of Justice. At all events, the judge reasoned, the time elapsed was not to be laid at the feet of the Crown or labelled as systemic delay.
February 26, 2010 – May 10, 2010 (2.5 Months)
[29] This period began with the conclusion of the judicial pre-trial in the Superior Court of Justice and ended when the first trial date was adjourned.
[30] The third party records application was scheduled to proceed on April 6, 2010 with the trial to follow three weeks later. A trial judge had been assigned.
[31] On an appearance in early March, 2010, Faulkner filed an expanded third party records application and advised the presiding judge about some disclosure issues he wished to raise. This despite prior counsel's assessment assurance over five months earlier that "full disclosure" had been made and discussions at the judicial pre-trial about the same subject.
[32] Neither the third party records application nor the trial proceeded as scheduled. The third party records had not been subpoenaed. The application had not been prepared. Nor had anything been done on the proposed s. 276 application. Faulkner was actively involved in bringing these applications. Appointed counsel continued to do Faulkner's bidding, including seeking items that were plainly beyond the scope of the Crown's disclosure obligations.
[33] The motion judge considered this entire period as defence delay.
May 10, 2010 – November 12, 2010 (6 Months)
[34] Throughout this six-month period, the Crown and court waited for the defence to perfect and argue the third party records application. The application was adjourned repeatedly, never perfected and, on November 12, 2010, ultimately abandoned.
[35] During this time, Ronald Faulkner filed a motion to remove appointed counsel. The motion was granted. Another lawyer was appointed under s. 486.3. Faulkner described her as competent and able and prepared to proceed with the third party records application on its scheduled date of October 26, 2010. But on the scheduled hearing date newly appointed s. 486.3 counsel sought an adjournment of the application, which remained unperfected. About three weeks later, after consultation with Faulkner, appointed counsel advised the presiding judge that no third party records or disclosure application would be brought "at this time". She gave no reasons. Ronald Faulkner said that he had no objection to the abandonment of the application.
[36] Ronald Faulkner had been re-arrested and detained in custody. The newly appointed lawyer under s. 486.3 was the same lawyer who appeared on his behalf on the new charges then in the Ontario Court of Justice.
[37] The motion judge marked this period down to defence delay because of the defence's failure to perfect and argue the third party records application when the Crown and court were prepared to proceed.
[38] The trial was scheduled to begin on January 10, 2011. Ronald Faulkner did not seek an earlier trial date or suggest that he could be ready for trial at any earlier time.
October 7, 2010 – December 1, 2010 (2 Months)
[39] During this period, which included the pendency of the third party records application, Ronald Faulkner filed a motion to quash his committal for trial made almost one year earlier. The motion proceeded to argument. On December 1, 2010 a judge of the Superior Court of Justice quashed the committal for trial.
[40] As the motion judge pointed out, the motion to quash the committal for trial was unfounded and should never have been permitted to proceed. The indictment had been preferred in the Superior Court of Justice. A trial date had been set. Ronald Faulkner had appeared before a court ready to proceed with his trial. The remedy sought by the motion to quash was no longer available: R. v. Chabot, [1980] 2 S.C.R. 985.
[41] The motion judge assigned 19 days of this period, from the abandonment of the third party records application on November 12, 2010 until the committal was quashed on December 1, 2010 to defence delay.
December 1, 2010 – December 23, 2010 (3 Weeks)
[42] This three-week interlude represents the time required to commence the new preliminary inquiry after the previous committal was quashed on December 1, 2010. It was common ground that for s. 11(b) purposes this period was part of the inherent time requirements of the case, thus neutral for the purposes of the s. 11(b) analysis.
December 23, 2010 – December 1, 2011 (11 Months)
[43] The second preliminary inquiry involved the introduction of evidence over a period of seven weeks. The presiding judge reserved his decision for one month after hearing argument. No one suggested that these periods were other than part of the inherent time requirements of the case.
[44] As the second preliminary hearing began, Faulkner sought an adjournment for a month to review various transcripts in support of further submissions.
[45] The examination-in-chief of the complainant consisted of a transcript of her evidence in chief at the prior preliminary inquiry. Appointed counsel cross-examined the complainant for nine days, then sought an adjournment, supported by Faulkner, to review further questions to put to the complainant. Although the adjournment was refused, the next available date was about a month away. The remainder of the case for the Crown was completed in five days, including Faulkner's cross-examination of the Crown witnesses. Appointed counsel, supported by Faulkner, applied to re-open cross-examination of the complainant. In the intervening month, Faulkner had provided counsel with over 700 questions he wanted her to ask. The presiding judge permitted some further cross-examination.
[46] In early February, 2011 Ronald Faulkner was re-arrested and detained in custody. Crown counsel sought an adjournment of the preliminary inquiry for three months because she had carriage of a major murder prosecution. About four days after the adjournment was granted, Faulkner was released from custody on a bail review.
[47] When the preliminary inquiry resumed, Ronald Faulkner testified in chief for three days. He was not cross-examined. He called about a dozen defence witnesses between July 28, 2011 and September 12, 2011. He was re-arrested and detained on August 29, 2011.
[48] On December 1, 2011 the presiding judge committed Ronald Faulkner to stand trial on several counts contained in the information.
[49] In apportioning parts of this time period for s. 11(b) purposes, the motion judge assigned the three-month period during which the Crown carried out a murder prosecution as Crown delay. He found no systemic delay and allocated the remaining eight-month period to the "ever-expanding inherent time requirements of a very unusual case". He noted in this respect Faulkner's "extraordinary misconduct" throughout the inquiry, in particular, "his constant stream of frivolous or marginal legal arguments". The motion judge added that when proceedings did adjourn for one month on two occasions, Faulkner had in fact sought an adjournment on each occasion to prepare for the continuation of the inquiry.
December 1, 2011 – February 27, 2012 (3 Months)
[50] Amicus conceded and the motion judge found that this period, from the committal for trial until the first judicial pre-trial on the new indictment in the Superior Court of Justice, was neutral or inherent delay to ready the case for trial. Faulkner was self-represented. He was trying to retain amicus as his own counsel. He was arrested again on new charges of criminal harassment and breach of recognizance. He sought release. He filed yet another Rowbotham application. In the interim, awaiting hearing and determination of the Rowbotham application, amicus was re-appointed.
February 27, 2012 – March 25, 2013 (13 Months)
[51] The first three months of this interval were taken up with a continuing judicial pre-trial in the Superior Court of Justice. At the outset, Ronald Faulkner had not perfected his Rowbotham application, much less brought it on for a hearing. The parties' estimates of the anticipated length of the trial proceedings on what had become a 17 count indictment varied widely. The Crown said two weeks if Faulkner had counsel. Amicus estimated six weeks. Faulkner claimed 12 to 14 weeks with a "bare minimum" of 8 to 10 weeks, including four weeks for his own testimony.
[52] The presiding judge offered trial dates in November, 2012 for a six week trial and April 1, 2013 for the longer trial Ronald Faulkner proposed. The judge suggested a further pre-trial after the Rowbotham application had been decided. Ronald Faulkner insisted on renewing the third party records application he had abandoned earlier. He also filed a motion under s. 11(b) of the Charter three days after the judicial pre-trial.
[53] The Rowbotham application was perfected and scheduled for hearing on May 7, 2012. It was withdrawn on the hearing date because amicus was re-appointed. The pre-trial continued before the supervising judge. Neither the s. 11(b) application, nor the third party records motion had been prepared. Faulkner suggested October and November, 2012 for the third party records application and January, 2013 for the s. 11(b) motion. The supervising judge said that he would set a trial date of April 1, 2013; ensure appointment of a trial judge in advance of the trial date; and have the motions heard prior to trial. Faulkner did not ask for earlier dates or suggest he would be ready to proceed earlier.
[54] When the dust finally settled, Ronald Faulkner said he wanted to bring four pre-trial motions:
i. certiorari to quash certain bail proceedings and to remove Crown counsel from the record;
ii. certiorari to quash the committal for trial;
iii. the third party records application; and
iv. the s. 11(b) motion.
Nothing had been filed on the third party records application.
[55] The motion judge began hearing pre-trial applications. He dismissed the motion to quash the bail proceedings and remove Crown counsel. Once again, amicus advised that the third party records application, on which nothing had been filed, was being abandoned. The motion judge dismissed the motion to quash the committal, then turned to the s. 11(b) motion.
[56] The motion judge concluded that the 13-month period from February 27, 2012 until March 25, 2013 was part of the inherent time requirements of the case. Faulkner needed time to prepare his motions and to complete the judicial pre-trial. He never suggested that he was ready to proceed earlier.
The Conclusions of the Motion Judge
[57] The motion judge concluded that the only period of delay that weighed against the Crown was the three-month period during which the second preliminary inquiry had been adjourned to permit Crown counsel to conduct a murder trial to which she had been assigned earlier. The judge found no systemic delay. Congestion in the courts never actually caused any period of delay. The actions of Ronald Faulkner caused a delay of nine months. The balance of the delay, approximately 42 months, was caused by the inherent time requirements of the case as it played out.
[58] After considering the issue of prejudice, the motion judge concluded that no breach of s. 11(b) had been established. Among his conclusions are these (at paras. 129 and 131):
I am satisfied that Faulkner has not established a violation of his s. 11(b) Charter rights. Although the total delay of four years and six months is unusual, there was very little unreasonable or unjustified delay in this case. Furthermore, the prejudice that Faulkner experienced was mainly caused by his own actions and by the needs of the case, given the way in which he and his appointed counsel chose to conduct it. This is simply not legally relevant prejudice, in the s. 11(b) context, and it must be "overlooked" as La Forest J. put it in Rahey.
The common thread running through all these cases, like the case at bar, is that much of the delay was caused by actions of the accused and/or much of the delay was due to lengthy periods of inherent time requirements that were driven by the circumstances of the particular case. These kinds of delays are not unreasonable or unjustified, in the s. 11(b) sense, because they are either sought by the accused for his own benefit or they are necessary, in light of the nature of the case and the way it is being conducted.
The Plea Proceedings
[59] The day following dismissal of the s. 11(b) application, more than a month before the motion judge released his written reasons, Ronald Faulkner appeared before another judge of the Superior Court of Justice. There, he pleaded guilty to one count of criminal harassment and four counts of failing to comply with recognizances on which he had been released from custody.
[60] A few weeks later, based on a joint submission of amicus and the Crown, which took into account 663 days of pre-disposition custody, the judge suspended the passing of sentence and ordered Ronald Faulkner to comply with the terms of a probation order for a period of three years.
The Ground of Appeal
[61] Ronald Faulkner ("the appellant") appeals his convictions. He advances a single ground of appeal. He says that the trial judge erred in failing to stay proceedings against him because his right to a trial in a reasonable time guaranteed under s. 11(b) of the Charter was infringed. He advances two discrete grounds of error, one relating to the application of the principles put in place by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, decided after the trial judge had made his ruling, and the other claiming error in the application of the standard set out in R. v. Morin, [1992] 1 S.C.R. 771, the controlling authority when the trial judge made his decision.
[62] Preliminary to an assessment of these claims of error, it is necessary to consider first an issue raised by a member of the panel during argument about whether the decision of this court in R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont. C.A.), bars the appellant from contesting the correctness of the motion judge's s. 11(b) ruling because he pleaded guilty to the various charges.
The Preliminary Issue: The Impact of R. v. Fegan
[63] Some further procedural history will complete the sketch of background necessary to consider the impact of Fegan on the disposition of the appeal.
The Proceedings at Plea
[64] When the appellant appeared before a different judge the day following the motion judge's dismissal of his application under s. 11(b), he was unrepresented by counsel. He pleaded guilty to 5 of 17 counts in the indictment.
[65] As is the practice in this province, the trial Crown read a statement of facts summarizing the case on the counts to which the appellant pleaded guilty. The appellant, who is a non-practising member of the bar, agreed that the Crown's summary of the facts was accurate. After a plea inquiry the presiding judge entered findings of guilt, recorded convictions on the counts to which the appellant had pleaded guilty, and set a date for sentencing.
[66] Nothing was said about the appellant's wish to challenge the motion judge's dismissal of his motion under s. 11(b). Nor did anyone propose that the appellant would maintain his plea of not guilty; agree with the Crown's summary of the facts; make no submissions; and acknowledge that findings of guilt and convictions should be entered.
The Notice of Appeal
[67] In the month following the s. 11(b) decision, the appellant filed an in person notice of appeal challenging the decision.
[68] At no time did the respondent move to quash the appeal on the basis that it was barred because of the appellant's plea of guilty and the decision in Fegan.
The Appointment of Amicus
[69] A judge of this court appointed amicus to assist the appellant in the completion of the record to be used on the appeal and preparation of a factum to spell out the grounds to be argued. The appeal was case-managed to ensure timely completion of the record and perfection.
[70] At no time during this period was an issue raised about the impact of the appellant's plea of guilty on the availability of appellate relief.
The Hearing of the Appeal
[71] In factums filed in this court, amicus and the respondent focused exclusively on the correctness of the motion judge's dismissal of the s. 11(b) motion. Their submissions related to the impact of Jordan and the correctness of the trial judge's analysis under the Morin framework.
[72] During oral argument, a member of the panel queried with counsel whether the decision in Fegan erected a bar to the appellant's claim of error below. So that the proceedings would not be adjourned or further delayed, we heard the appeal on the merits and set a schedule for counsel and amicus to file written submissions on the Fegan issue. We reserved our decision to consider not only the merits of the appeal, but also whether the decision in Fegan barred relitigation of the issue.
The Arguments on Appeal
[73] In his written submissions, amicus contends that the decision in Fegan does not extinguish the appellant's right of appeal simply because he pleaded guilty at first instance. The appellant's claim of s. 11(b) infringement survives his plea of guilty and the public interest in timely adjudication of allegations of crime requires determination of its validity. Amicus adds that this appeal is not moot because of the guilty plea, but even if it were, we should decide the appeal on its merits.
[74] In this case, amicus says, the appellant does not resile from or seek to set aside his guilty plea. He does not seek a new trial. With the benefit of legal advice when he entered his plea of guilty, the appellant could have adopted the "work-around" procedure advanced in Fegan, which would have left open his right to challenge the correctness of the s. 11(b) decision. That he did not do so because he lacked legal advice should not disentitle him to appeal. In any event, amicus continues, the authorities do permit the appellant to challenge the s. 11(b) ruling, even without successfully setting aside his guilty plea.
[75] According to amicus, applications to stay proceedings for unreasonable delay under s. 11(b) are qualitatively different from applications to exclude evidence for constitutional infringement, as was the case in Fegan. Rulings on the admissibility of evidence are interlocutory and relate to the ability of the Crown to prove its case. Section 11(b) goes to the heart of whether the prosecution should be permitted to continue because of the failure of the state to proceed in a constitutionally timely manner. The rationale in Fegan, even if it could be said to bar appeals to question the correctness of interlocutory evidentiary rulings after entry of a guilty plea, does not apply where the issue raised has to do with the regularity of the prosecution.
[76] On the issue of mootness, amicus points out that an active controversy remains between the parties about whether the appellant was tried in a reasonable time. Even if the appeal is moot, issues important to the administration of justice remain. These include whether a self-represented litigant is responsible for delays caused by counsel appointed under s. 486.3, and the extent to which the conduct of a self-represented litigant should be counted against him in a s. 11(b) analysis.
[77] The respondent says that the decision in Fegan disentitles the appellant to the relief he seeks. A plea of guilty is the equivalent of a waiver of constitutionally-protected safeguards. This remains the case unless the plea of guilty is set aside on appeal. This can occur where an appellant can show that the plea was not voluntary, informed or unequivocal when entered, or when the conviction amounts to a miscarriage of justice. The appellant, who must shoulder the burden of setting aside the plea, has failed to do so here.
[78] The respondent points out that essential to this court's decision to entertain the appeal in Fegan was its finding, based on a concession by the Crown, that Fegan's plea was uninformed because he didn't know that his plea of guilty would shutter his right to challenge the validity of his conviction on the basis that the trial judge had wrongly admitted crucial evidence against him. No such finding is pursued or available or the evidence of this case.
[79] The respondent argues that the Fegan rationale applies here despite the differences in the constitutional infringements relied upon in the two cases. In each case, the plea of guilty constitutes a waiver of the appellant's right to require the Crown to prove its case beyond a reasonable doubt. The plea also waives the procedural safeguards associated with a criminal trial including those, like the right to a trial within a reasonable time, which are constitutionally protected. Both rulings are interlocutory.
[80] Further, the respondent continues, the policy reasons underpinning the decision in Fegan have equal currency here. The plea was the product of negotiations. The appellant pleaded guilty to only 5 of 17 counts. He relied on his plea in advancing his case for a non-custodial sentence. He cannot now reverse engineer what occurred earlier.
[81] The respondent accepts that Fegan does not foreclose an appeal from an interlocutory ruling after a conviction has been recorded on entry of a guilty plea where the plea is shown or admitted to be uninformed, thus invalid. But that is not this case. After all, the appellant has the onus of establishing the uninformed nature of his plea. In this case, the respondent says, we have no evidence that the plea was uninformed, as for example because it was contingent on the appellant being able to appeal the adverse ruling on his s. 11(b) application. At the judicial pre-trial immediately before entry of the guilty plea, the appellant said nothing about wishing to appeal the s. 11(b) ruling. Although it may have been better had the judge at the judicial pre-trial or during the plea inquiry advised the appellant about this consequence of his guilty plea, the failure to do so does not make the plea uninformed.
[82] In the end, the respondent says, it may be unnecessary to resolve the impact of Fegan on the circumstances of this case because the complaint of error fails on the merits.
The Governing Principles
[83] To determine whether a plea of guilty bars a challenge to rulings made in pre-trial proceedings that precede entry of the plea, it is helpful to consider first the nature and effect of a guilty plea, then to examine the decision in Fegan about the impact of the plea on the availability of appellate review of interlocutory decisions prior to entry of the plea.
The Guilty Plea
[84] As is well known, to be effective a guilty plea must be voluntary, unequivocal and informed. And to be informed, the person pleading guilty must be aware of the nature of the allegations said to constitute the offence; the effect of the plea; and the consequences of the plea: R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at p. 519; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 371.
[85] A guilty plea is a formal in-court admission of guilt. Further, it constitutes a waiver not only of the accused's right to require the Crown to prove guilt beyond a reasonable doubt by properly admissible evidence, but also of the related procedural safeguards in the criminal trial process, some of which are constitutionally enshrined and protected: T.(R.), at p. 519; Korponay v. Canada (Attorney General), [1982] 1 S.C.R. 41, at p. 49.
[86] On an appeal from conviction, an accused may challenge the validity of a guilty plea, but bears the onus of showing, on a balance of probabilities, that the plea was invalid because one (or more) of the elements essential to a valid plea was lacking: T.(R.), at p. 519. In the usual course, an appellate challenge to the validity of a guilty plea entered at trial involves the introduction of fresh evidence in support of the claim, as well as a review of the trial record: T.(R.), at p. 519.
[87] A final point concerns appellate review of cases in which a guilty plea meets all the traditional tests of validity. In such cases, an appellate court retains a discretion, exercisable in the interest of justice, to receive fresh evidence to explain the circumstances that led to the plea and to demonstrate that a miscarriage of justice has occurred: R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 19; R. v. Kumar, 2011 ONCA 120, 268 C.C.C. (3d) 369, at para. 34.
The Decision in Fegan
[88] In Fegan, the case for the Crown depended on the admissibility of evidence obtained by use of an authorized digital number recorder ("DNR"). On the basis of an agreed statement of facts, the parties made submissions on a pre-trial application to determine the admissibility of the DNR evidence. The trial judge ruled the evidence admissible. Fegan changed his plea to guilty. The trial judge entered a conviction and imposed sentence.
[89] Fegan appealed. He challenged the pre-trial ruling admitting the DNR evidence that was the case for the Crown against him. On appeal, the Crown conceded that when he pleaded guilty, Fegan was under the mistaken belief, fostered by the advice he had received from trial counsel, that, despite his guilty plea, he could appeal his conviction and challenge the correctness of the pre-trial admissibility ruling. It was common ground that Fegan pleaded guilty without intending to give up his right to challenge the admissibility ruling on appeal.
[90] On appeal, this court held that, having pleaded guilty, the appellant was required to obtain leave to withdraw the plea of guilty or persuade the court to exercise its jurisdiction under s. 686(1)(a)(iii) and allow the appeal, despite the plea, on the ground that there was a miscarriage of justice. In either case, the burden was on the appellant to explain away his plea of guilty as a condition precedent to any relief: Fegan, at p. 360.
[91] This court proceeded to hear the appeal on the basis of the Crown's concession about the uninformed nature of the plea. It reached no firm conclusion about the effect of a valid guilty plea that remained effectual on appeal and did not attract the operation of s. 686(1)(a)(iii). The appeal was dismissed on the merits because the court was satisfied that the trial judge's admissibility ruling was correct.
[92] The Fegan court suggested that in future cases a procedure could be followed that did not require entry of a guilty plea, thus preserving an accused's right to challenge the correctness of a pre-trial ruling on appeal. The procedure involved post-ruling acceptance of the case for the Crown, followed by no defence evidence and entry of a conviction based on an agreed statement of facts. This procedure would preserve the accused's right of appeal against conviction on the real issue in dispute without imposing the additional burden of setting aside the guilty plea.
[93] The British Columbia Court of Appeal has also treated a plea of guilty as a bar to relitigation of interlocutory rulings, usually those involving the admissibility of evidence, unless the plea of guilty can be set aside on one basis or another: R. v. Duong, 2006 BCCA 325, at paras. 16-18; R. v. Carter, 2003 BCCA 632, at paras. 6-7; R. v. Chuhaniuk, 2010 BCCA 403, at paras. 46-49.
The Principles Applied
[94] At issue here is whether entry of a guilty plea by a self-represented accused, which he does not seek to withdraw or have set aside on appeal, disentitles him from challenging on appeal a pre-trial ruling that proceedings taken against him were constitutionally flawed because his trial is not held in a reasonable time. I believe that it does.
[95] As I have tried to illustrate above, through his legal chicanery and manoeuvres over the years, Faulkner has attempted to make a mockery of the criminal trial process. His latest gambit – plead guilty/appeal immediately – is merely another incarnation of this litigation strategy, albeit in the appellate forum.
[96] After substantial negotiations during an in-court judicial pre-trial conference, conducted by a very experienced criminal trial judge, the Crown agreed to withdraw 12 of 17 charges in exchange for the appellant's pleas of guilty to the 5 remaining counts. The appellant then leveraged his guilty plea as a mitigating factor in support of his submission that he should receive a non-custodial sentence. The trial judge agreed and gave Faulkner full mitigating credit for his plea.
[97] I acknowledge that Faulkner was self-represented before the trial court, as he is in this court. However, during the in-court pre-trial conference, and during the guilty plea proceedings, he benefitted from the participation of amicus counsel, the same one who ably assisted this court on appeal. Moreover, at no time has Faulkner sought to distance himself from his guilty pleas, which occurred in the context of proceedings that were error-free, if not flawless.
[98] By his pleas of guilty, Faulkner acknowledged the underlying facts of the offences. The transcript of proceedings reflects that his pleas were voluntary, unequivocal, and fully informed. He does not suggest otherwise on appeal. The law is clear from R.T., and other cases, that by his pleas of guilty, the appellant relieved the Crown of the burden of proving the charges against him; he also waived the procedural safeguards, constitutionally protected or otherwise, associated with the prosecution against him. This included his right to subsequently challenge all interlocutory decisions, including the s. 11(b) Charter ruling.
[99] Fegan supports the Crown's position that the appellant's appeal should not be heard on its merits. The Fegan court determined that the appeal could proceed in light of the Crown's concession about the uninformed nature of the plea. No evidence was placed before this court to support the assertion that Faulkner was acting under a similar misapprehension; nor is there any concession by the Crown that this was the true state of affairs.
[100] Mr. Carlisle argues that there is a qualitative difference between the situation in Fegan, involving an evidentiary issue, and the appellant's assertion of his s. 11(b) rights. I fail to see a meaningful distinction for present purposes. The dismissal of a s.11(b) application is an interlocutory ruling like any other in this context. While a successful s. 11(b) application results in the ultimate remedy available in criminal law – a stay of proceedings – this does not change its character as a Charter-based procedural safeguard contemplated in T.(R.).
[101] Consequently, Fegan prevents the appellant from appealing the s. 11(b) ruling. Moreover, this is not a case involving a miscarriage of justice of the type considered in Hanemaayer. This appeal is just another attempt by Faulkner to pervert the process.
[102] When Faulkner entered his pleas of guilty and was sentenced on just 5 counts in a 17-count indictment, it was reasonable for all concerned to believe that the case was at an end, that finality had been achieved. This was undoubtedly the Crown's goal in participating in this process with Faulkner. The trial judge was clearly acting on a similar assumption. He observed in his sentencing remarks that Faulkner "has taken responsibility for his actions, which is a positive step when looking at rehabilitation." As it turned out, Faulkner had other ideas. This was not the end of the case; it was just the beginning of the next procedural phase.
[103] To condone this type of litigation conduct would have a deleterious impact on guilty plea proceedings, long considered to be an instrumental feature of our criminal justice system: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. If permitted, it may create a disincentive for Crowns to resolve cases in this manner, thereby contributing to further delays, a most regrettable result in a post-Jordan era.
[104] As I noted in para. 92 above, Fegan contemplates a "work-around" option, whereby the parties may fashion a procedure in which guilty pleas are dispensed with, and the foundation for the case is established by way of an agreed statement of facts. The procedure suggested there makes good sense where the success or failure of the case for the Crown depends on the result of pre-trial motions. This procedure preserves the right of an appellant to challenge the correctness of a pre-trial ruling. It does not waste valuable and limited court resources where it is clear that the admissibility of the evidence is dispositive of guilt. And it expedites appellate review.
[105] But that was not this case. Not even close. The appellant had the majority of counts withdrawn against him. In these circumstances, it is difficult to fathom that the Crown would agree to such a favourable arrangement, knowing that Faulkner would turn around and appeal the s. 11(b) ruling.
[106] I would dismiss the appeal on this basis. However, for the sake of completeness, I also consider the s. 11(b) ground of appeal on its merits.
Ground #1: The s. 11(b) Argument
[107] The appellant advances a single ground of appeal. He says that the motion judge was wrong in failing to stay proceedings on account of a breach of s. 11(b) of the Charter. This ground invokes not only the approach required by Jordan for cases decided before its release but reviewed thereafter, but also asserts error in the application of the Morin framework that was controlling before the motion judge.
[108] In an earlier part of these reasons I reviewed the history of this prosecution and the manner in which the motion judge characterized various periods within that chronology for the purposes of his s. 11(b) analysis. Their repetition is unnecessary.
[109] The arguments advanced provide a logical point of departure for the discussion that follows.
The Arguments on Appeal
[110] Amicus submits that the total delay in this case should be calculated from the time the charges were first laid to the anticipated completion date of trial. Fifty-seven months. Under Jordan, amicus continues, which controls the disposition of this ground of appeal, the net delay, after deducting the motion judge's calculation of defence delay of 9 months from a total of 57 months is 48 months. This well exceeds the presumptive ceiling in Jordan of 30 months. It follows, amicus contends, that the delay is presumptively unreasonable and infringes s. 11(b).
[111] According to amicus, no exceptional circumstances are at play here to reduce this delay below the Jordan presumptive ceiling. This was not a complex case, let alone a particularly complex case. Counts, albeit many, of criminal harassment and failure to comply with the terms of a recognizance. Evidence based almost entirely on a single Crown witness. No complex legal issues. Nor unsettled principles of law.
[112] Amicus acknowledges that the teachings of Jordan do not permit an assail of the correctness of the motion judge's application of Morin, but, amicus continues, a consideration of the Morin analysis may illuminate the way to a proper application of Jordan.
[113] In the submission of amicus, the motion judge erred in designating any delay caused by counsel appointed under s. 486.3 as defence delay. Appointed counsel were not the appellant's counsel for anything other than cross-examining the complainant. In particular, they were not his counsel for the purposes of any third party records application, disclosure motion or application under s. 276 of the Criminal Code. It follows, amicus continues, that any delay those counsel caused should not have been laid at the appellant's doorstep. And, as an alternative submission, the assistance they provided was so ineffective that the time spent should not be tallied against the appellant.
[114] Amicus focuses on several other periods which, he says, the motion judge erred in attributing to defence delay or in failing to put them down as institutional delay. For example, the period during which the motion to quash the first committal was pursued. This was not defence delay. And the time spent completing the second preliminary. This was due, in part at least, to the court's failure to ensure it proceeded continuously and the judge's tardiness in rendering judgment. Similarly, the period between fixing the date for trial and the start of the trial should have been characterized as institutional delay because the court could not provide an earlier trial date.
[115] Overall, amicus says, the motion judge undertook a microanalysis of 11 discrete time periods, contrary to the teachings of R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, rather than looking at the total delay which would have compelled entry of a stay of proceedings under Morin.
[116] The respondent begins with a reminder. The correctness of the decision not to stay proceedings for unreasonable delay is governed by the Jordan framework for transitional cases, not determined by a review of the motion judge's Morin analysis. Admittedly, the total period of delay, from the first information until the guilty plea – 54 months – well exceeds the presumptive ceiling of 30 months for trials in the Superior Court of Justice. But from this total, we must determine, then deduct, defence delay and decide whether any exceptional circumstances reduce the delay below the presumptive ceiling or justify it as reasonable. On completion of this exercise, the respondent says, no stay is warranted.
[117] The respondent says that defence delay takes in delay solely or directly caused by the defence. It is delay that flows from defence action that is illegitimate, said another way, conduct not undertaken to respond to the charges. Defence delay has to do with both substance and procedure. The decision to take a step and the manner in which the step is taken. Illegitimate defence conduct includes steps designed to delay proceedings or actions that reveal a marked indifference to delay.
[118] In this case, the respondent continues, four substantial periods of defence delay – a total of 22.75 months – should be deducted to reduce the net delay to about two months beyond the presumptive ceiling.
[119] The respondent submits that a period of 7.25 months should be chalked up to defence delay in connection with the third party records application that was later abandoned with the express agreement of the appellant.
[120] The application was first filed about two months before the trial date in the Superior Court of Justice. It sought a broad range of records from a variety of sources. It had not been perfected by the original trial date, thus necessitating an adjournment to permit its perfection since the availability of these records might be important for counsel to cross-examine the complainant. On two later occasions scheduled to deal with the application, the records had not been subpoenaed, the motion not perfected. Further delay occurred, when appointed counsel added an equally frivolous disclosure motion seeking materials well beyond the most fevered imaginings of obligations under R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[121] In the end, the application was abandoned with the express agreement of the appellant. When its reincarnation was later proposed, amicus observed that he could see no basis upon which the application could succeed. A second abandonment followed.
[122] The respondent next invites us to assign 5.5 months of delay, which occurred during the ten-month period it took to complete the second preliminary inquiry, to defence delay.
[123] The respondent says that the manner in which appointed counsel, at the appellant's direction, conducted the preliminary inquiry demonstrates a marked inefficiency and palpable indifference to delay. Counsel and the appellant sought an adjournment of one month to review transcripts of prior testimony. Appointed counsel cross-examined the complainant for nine days and fully subscribed to the appellant's position that he (the appellant) was entitled to review any proposed questions and approve of them being asked. Appointed counsel applied to re-open her cross-examination when presented with 700 further questions the appellant wanted her to ask.
[124] The respondent points to the appellant's misconduct at the preliminary inquiry. His abusive comments. His constant objections. His denigration of other participants. This, the respondent says, affords compelling evidence of marked inefficiency and indifference to delay. In response to commonplace charges of criminal harassment and failure to comply with recognizances, the appellant testified in chief for three days. He was not cross-examined.
[125] As an alternative submission, the respondent argues that some portion of the time spent completing the preliminary inquiry should be deducted as an exceptional circumstance because the requirement of the second preliminary was beyond the control of the Crown and could not reasonably have been foreseen in light of R. v. Chabot, [1980] 2 S.C.R. 985. Besides, the Crown took several steps to expedite proceedings and mitigate the delay prior to the second preliminary inquiry.
[126] Further, the respondent continues, 5.25 months of delay associated with attempts to have counsel assigned on Rowbotham applications after the case was otherwise ready to proceed should be characterized as defence delay. This delay only arose because the appellant's conduct during the guilty plea proceedings caused his third counsel to ask that she be removed from the record. The Rowbotham application that followed delayed a judicial pre-trial because of the uncertainty of whether the appellant would have counsel or be self-represented. In the end, the motion was abandoned when a compromise was reached that involved the appointment of amicus.
[127] The final period the respondent contends should be characterized as defence delay is one of 4.75 months attributable to the impact of the appellant's unreasonable estimate of the length of trial.
[128] In order to establish the trial date in the Superior Court of Justice, the supervising judge asked for estimates about the length of trial. The appellant's Rowbotham application had not yet been heard for lack of material, but amicus was present. The Crown estimated two weeks if the appellant were represented by counsel. Amicus said six weeks. The appellant insisted that the trial would take 12 to 14 weeks with his testimony-in-chief alone occupying four weeks. A six-week trial could have been held in November, 2012, but a 12 to 14 week trial could not begin until April 1, 2013. The period between the proposed trial dates should be charted as defence delay.
[129] To take the case below the presumptive ceiling of 30 months set by Jordan, the respondent relies on transitional exceptional circumstance – reasonable reliance on the Morin analysis.
[130] The respondent says that there was no prosecutorial or institutional complacency here, nor any indifference to the appellant's right to be tried within a reasonable time. For example, after the first committal for trial had been quashed, the Crown successfully invoked s. 540(7) of the Criminal Code to have the complainant's prior testimony admitted as her evidence-in-chief at the second preliminary. The motion judge's Morin analysis found only three months of Crown delay and no institutional or systemic delay. Any prejudice to the appellant was a direct result of his own approach to litigation. Constant delays. Frivolous motions. An inflexible and erroneous insistence on approving every question to be asked by appointed counsel. This was a simple case that the appellant tried to portray as complex by piling on pointless motions barren of legal merit and evidentiary support.
The Governing Principles
[131] It is common ground that the Jordan framework, including the presumptive ceiling of 30 months for trials in the Superior Court of Justice, applies in this case subject to certain qualifications: Jordan, at paras. 5, 46 and 95.
[132] To determine the period of delay to which we apply the Jordan framework, we begin with the period between charge and the end of the trial. From that number, we subtract defence delay to arrive at a net period that we compare to the Jordan presumptive ceiling to determine whether the delay is presumptively unreasonable as beyond the ceiling: Jordan, at para. 47.
[133] Defence delay has two components.
[134] The first is delay waived by the defence. The waiver can be explicit or implicit. But it must always be clear and unequivocal. This requires that the accused have not only full knowledge of his or her rights, but also of the effect waiver will have on those rights. The waiver is not of the s. 11(b) right itself, rather only the inclusion of specific periods in the overall assessment of reasonableness: Jordan, at para. 61.
[135] The second component of defence delay is delay caused solely by the conduct of the defence. This takes in situations in which an accused's acts either directly caused the delay or were not legitimately taken to respond to the charges, but rather are shown to be a deliberate and calculated tactic to delay the trial: Jordan, at para. 63. Frivolous applications and requests, as well as the failure of the defence to be ready when the Crown and court are prepared to proceed, fall into this category: Jordan, at paras. 63 and 64.
[136] The presumption of unreasonableness that follows from the net delay exceeding the presumptive ceiling is rebuttable. The onus of rebuttal is settled on the Crown and is discharged where the Crown establishes the presence of exceptional circumstances. The failure of the Crown to discharge this onus leaves the delay as unreasonable and entry of a stay of proceedings as its consequence: Jordan, at para. 47.
[137] For the purpose of rebutting the presumption of unreasonableness that follows from net delay that exceeds the Jordan ceiling, "exceptional circumstances" are those that lie outside the Crown's control in the sense that:
i. the circumstances are reasonably unforeseen or reasonably unavoidable; and
ii. the Crown cannot reasonably remedy the delays emerging from the circumstances once they arise.
[138] The Crown does not establish exceptional circumstances simply by pointing to a past difficulty. More is required. And that "more" is a showing that the Crown took reasonable and available steps to avoid and address the problem before the delay exceeded the ceiling. This includes, but is not limited to resort to available procedural devices to move the case forward: Jordan, at para. 70.
[139] By their very nature, "exceptional circumstances" are not conducive to a closed list. That said, at least as a general rule, exceptional circumstances fall into two categories:
i. discrete events; and
ii. particularly complex cases.
[140] Particularly complex cases are prosecutions that, because of the nature of the evidence, the nature of the issues, or both, require an inordinate amount of trial or preparation time: Jordan, at para. 77.
[141] Since the Jordan framework applies to cases such as this where the s. 11(b) decision preceded the release of Jordan, a transitional exceptional circumstance may apply where the delay exceeds the ceiling, provided the Crown can satisfy the court that the time the case has taken is justified on the basis of the parties' reasonable reliance on the law as it existed prior to Jordan. This assessment is contextual: Jordan, at para. 96.
[142] Three brief further points.
[143] First, for most cases already in the system prior to Jordan, the release of the decision in Jordan should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one: Jordan, at para. 102; R. v. Baron, 2017 ONCA 772, at para. 43; R. v. Gordon, 2017 ONCA 436, at para. 23.
[144] Second, defence delay includes not only acts, but also omissions; substance as well as procedure: R. v. Cody, 2017 SCC 31, 349 C.C.C. (3d) 488, at paras. 32-33.
[145] Third, a relevant factor in assessing the reasonableness of any delay is the absence of any interest on the part of an accused about moving the case along: R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at para. 26; R. v. St. Amand, 2017 ONCA 913, at paras. 104-106.
The Principles Applied
[146] As I will explain, I would not give effect to this ground of appeal. In my view, the combined effect of defence delay, exceptional circumstances and transitional exceptional circumstances results in a net delay that is below the presumptive ceiling in Jordan, one that the appellant cannot establish is unreasonable.
[147] This case, as have others, demonstrates the difficulties involved in reviewing a Morin-based decision under Jordan principles. The focus of Morin was on institutional delay. Other categories of delay, including but not limited to defence delay, could not be laid at the doorstep of the Crown. Not so under Jordan, where defence delay and delays caused by discrete events are critical.
[148] Further, this case demonstrates the disastrous consequences for trial economy, integrity and continuity that follow when a self-represented litigant hijacks the trial process, bent on converting it to a trial of his accuser rather than an assessment of the adequacy of the evidence to establish his guilt.
The Total Delay
[149] The first information was laid on October 15, 2008. The appellant pleaded guilty to and was convicted of five counts in the indictment on which he was to be tried on April 11, 2013. I reject the submission of amicus that the total delay should extend to the anticipated completion date of the trial based on the appellant's extravagant estimate of its anticipated length. Although this may be appropriate where a motion to stay proceedings under s. 11(b) is argued well before the commencement of the trial, and trial proceedings remain outstanding, there is no need to do so here where the conclusion of the trial is a date certain.
[150] The total delay from commencement of the proceedings until the conclusion of the trial is 54 months.
The Net Delay
[151] Under the Morin framework, a regimen focused on Crown and institutional delay, the motion judge assigned nine months to defence delay. The motion judge did not reach a final conclusion about another period which he acknowledged could have been found to be defence delay. Within the Morin framework, the motion judge did not need to make an affirmative finding in this respect since it was clear that the period in issue could not be characterized as either Crown or institutional delay.
[152] I would allocate 22.75 months to defence delay, leaving a net delay of 31.25 months, slightly more than the presumptive 30-month ceiling fixed by Jordan.
i. The Third Party Records Application
[153] To begin, I would assign 7.25 months, from April 6, 2010 until November 12, 2010 to defence delay.
[154] About two months before the trial date, the appellant, with the assistance of counsel appointed under s. 486.3, filed a third party records application. The mandate of appointed counsel was expanded to include providing assistance to the appellant on the motion since success on the motion might possibly yield information upon which counsel may wish to cross-examine the complainant. April 6, 2010 was the date set to commence the third party records application.
[155] The third party records application sought a broad range of records relating to the complainant, the great bulk of which would seem unlikely to have any reasonable prospect of meeting any "likely relevant" threshold, let alone any more stringent requirements necessary to justify disclosure. The motion was not prepared by the peremptory trial date or on any other occasion when the parties appeared. The only reason the trial did not proceed on the scheduled trial date was the outstanding third party records motion. Appointed counsel, who displayed an unwavering commitment to do the appellant's bidding, also filed a disclosure application seeking several items. Much of what was sought was either not in the possession of the Crown or well beyond the scope of the Crown's disclosure obligations.
[156] The nature of the third party records sought, together with the failure of the defence to pursue the motion with even an atom of effort, leads irresistibly to the conclusion that this was anything but a motion pursued with a bona fide intention of making full answer and defence to the charges. It would be better described as a fishing expedition with the singular purpose of delaying the trial and humiliating the complainant. In the end, on November 12, 2010, it was abandoned. When raised again by the appellant, amicus said that he could see no basis for it, and it was discarded again.
[157] The period from April 6, 2010 until November 12, 2010 – 7.25 months –should be deducted from the total 54-month period as defence delay.
ii. The Second Preliminary Inquiry
[158] As I will explain, I would also deduct a total of 5.5 months as defence delay during the period from December 23, 2010 until October 5, 2011 when the second preliminary inquiry took place.
[159] The second preliminary inquiry was rendered necessary as a result of a successful motion by the appellant to quash the committal ordered at the conclusion of the first inquiry. I have already explained why I consider the decision to quash the committal erroneous, but that is not the reason I have concluded that part of the time taken to conclude the second preliminary should be chalked up to defence delay.
[160] The manner in which the appellant and appointed counsel conducted the second preliminary inquiry demonstrated a marked inefficiency and indifference to delay, which Cody recognizes may constitute defence delay.
[161] At the outset of the inquiry, three days were taken up with arguments about legal issues and objections advanced by the appellant. The arguments were at best marginal, but in the main, frivolous. The appellant also sought an adjournment for one month to review transcripts.
[162] Recall the charges – criminal harassment and failure to comply with a recognizance. Yet appointed counsel, in lock step with the appellant's view that he (the appellant) had to approve the questions counsel would ask, cross-examined the complainant for nine days. Appointed counsel then sought to re-open the cross-examination to ask a further list of "over 700 questions" the appellant had developed and wanted asked. The appellant testified for three days. He was not cross-examined. He then called defence witnesses over a period of five days. Their evidence was more confirmatory of the case for the Crown than exculpatory. What is more, the appellant's conduct was so abusive that the presiding judge terminated two of the examinations before they were completed.
[163] To reach a conclusion that 5.5 months should be assigned as defence delay, I have deducted from the total period three months of Crown delay where Crown counsel was not available because of an earlier scheduled homicide trial; the time taken by the presiding judge to prepare his reasons for committal; and an estimate of a reasonable time to conduct a preliminary inquiry on the charges contained in the information.
iii. The Rowbotham Application
[164] On December 1, 2011 the appellant was ordered to stand trial at the end of the second preliminary inquiry. But it was not until May 7, 2012 that a judicial pre-trial in the Superior Court of Justice could be completed, because it was only then that it could be determined whether the appellant would be self-represented or have counsel. In the absence of knowledge of the nature of the appellant's representation, no realistic estimate could be made about the trial length or the availability of counsel. Otherwise, the case was ready for trial.
[165] I am satisfied that this period of 5.25 months should be charted as defence delay.
[166] The necessity for a Rowbotham application was attributable, wholly and exclusively, to the appellant's conduct.
[167] In the beginning, the appellant had counsel funded by Legal Aid Ontario. He discharged the first lawyer. He retained a second. He discharged the second lawyer. Legal Aid Ontario agreed to fund a third counsel on the appellant's undertaking that he would not be allowed a fourth lawyer if he discharged the third, or if the third was required to remove herself from the case. When a favourable resolution reached between the third counsel and the Crown failed because the appellant refused to acknowledge an essential element of an offence to which he had pleaded guilty, the third counsel, a very experienced and respected criminal lawyer, asked to be removed for ethical reasons. And thus it was that the appellant sought a Rowbotham order to have the state pay for his counsel.
[168] During this period, the appellant took considerable time to perfect the Rowbotham application. It was not until May 7, 2012 that the issue was settled by the withdrawal of the application when an accommodation had been reached to provide amicus. A further complication arose from the appellant's re-arrest, leaving it unclear whether he would be in or out of custody during his trial.
iv. The Trial Estimate
[169] After the appointment of amicus, judicial pre-trials continued in an effort to set a date for trial. According to the estimates of the Crown and amicus, a trial date could have been set for November, 2012 for a trial of up to six weeks in length.
[170] The appellant insisted that the trial on a 17 count indictment containing counts of criminal harassment and failure to comply with a recognizance would take 12 to 14 weeks, with a "bare minimum" of 8 to 10 weeks. The appellant claimed that his testimony-in-chief would require four weeks. The supervising judge set a trial date of April 1, 2013, but promised to try to find an earlier trial date if estimates of the length of trial became shorter. Pre-trial motions continued.
[171] The appellant did not order the transcripts necessary for the s. 11(b) motion he wanted to bring before trial until after amicus had been appointed at the end of May, 2012. The motion was not perfected until January, 2013, two months after the court's available November dates for a shorter trial had passed. On one appearance, Crown counsel advised that the trial could be completed in two weeks.
[172] It follows from what I have said that I would categorize the period from November 12, 2012 to March 25, 2013 as defence delay. This is a period of 4.75 months.
[173] From a total delay of 54 months, I would deduct a total of 22.75 months as defence delay, leaving a period of 31.25 months of delay, slightly above the Jordan ceiling of 30 months for trials in the Superior Court of Justice.
Transitional Exceptional Circumstances
[174] I would also rely upon the transitional exceptional circumstances to justify the delay in completing the appellant's trial. In doing so, I am mindful that the onus on this issue rests upon the Crown and the analysis is qualitative, not quantitative. Of the essence in this analysis is the avoidance of unfairness to the parties caused by their reliance on the institutional delay-focused approach of Morin.
[175] Relevant considerations informing the transitional exceptional circumstance are:
i. the complexity of the case;
ii. the period of delay in excess of the Morin guidelines;
iii. any response by the Crown to institutional delay;
iv. any defence efforts to move the case along; and
v. prejudice to the accused.
See, R. v. Gopie, 2017 ONCA 728, at para. 178; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 26-30.
[176] To begin, the trial judge properly applied the Morin framework. He divided the entire period from the commencement of proceedings until trial into 11 discrete time periods. For each period, he examined what happened and provided cogent reasons for the conclusions that he reached. He found no institutional or systemic delay and only three months of Crown delay. As I have observed earlier, he could have assigned a further period to defence delay although his failure to do so made no difference to his ultimate conclusion.
[177] Second, the complexity of the case. The case for the Crown was straightforward. One principal witness – the complainant – to prove the counts of criminal harassment. The same evidence, coupled with an admission or formal proof of the recognizance and its terms, would satisfy the Crown's burden on the several counts of breach of recognizance. The indictment contained 17 counts. One of the many lawyers whom the appellant engaged described the disclosure as voluminous.
[178] On the other hand, case complexity is not a sole proprietorship, the exclusive business of the Crown. In this case, the appellant's approach to the litigation injected a degree of complexity to the proceedings that extended well beyond the usual requirements of proof. A proliferation of motions seeking disclosure and third party records on subjects of doubtful relevance. Repeated requests for lengthy adjournments. Failure to adhere to filing deadlines. Lack of preparation. Pointless and repetitive cross-examination.
[179] The motion judge found, and I agree, that the period of delay was well under the Morin guidelines. It follows that there was no delay that exceeded the Morin guidelines.
[180] Third, Crown response to institutional delay. Despite the absence of institutional delay, it is worth notice that the Crown resisted many of the appellant's requests for lengthy adjournments, for example to review materials in preparation for an application to re-open cross-examination of the complainant who had already been cross-examined for nine days. Further, after the committal for trial had been quashed, the Crown ensured that the appellant was summoned to re-appear at the second inquiry which was scheduled to commence about three weeks after the committal had been quashed. And the Crown expedited completion of its case at the second preliminary inquiry by obtaining an order under s. 540(7) of the Criminal Code permitting the complainant's evidence at the first inquiry to be admitted at the second.
[181] In addition, case management judges conducted pre-trial conferences in both the Ontario Court of Justice and the Superior Court of Justice to set dates and monitor compliance with filing requirements for the various motions initiated by the appellant.
[182] Fourth, defence efforts to move the case along. Although the appellant was self-represented after discharging counsel or having counsel withdraw, he had the benefit of counsel appointed under s. 486.3 (with an expanded mandate) and amicus to assist him, in addition to his own legal training. His approach to the prosecution belied any real interest in moving the case forward. Persistently, he sought adjournments and failed to comply with filing requirements for motions he sought to advance. He was often disrespectful of the presiding judicial officer and of counsel for the Crown. He seemed more interested in harassing the complainant, the Crown, and the judges before whom he appeared than in proceeding to trial, much less advancing any viable defence.
[183] Finally, prejudice. To the extent that the appellant experienced any prejudice, he was its principal architect.
[184] I would not give effect to this ground of appeal.
Conclusion
[185] For these reasons, I would dismiss the appeal.
Released: "DW" Feb 23 2018
"David Watt J.A." "I agree. Grant Huscroft J.A." "I agree. G.T. Trotter J.A."