Her Majesty the Queen and Adu-Bekoe

[Indexed as: R. v. Adu-Bekoe]

Ontario Reports Court of Appeal for Ontario Feldman, Lauwers and Trotter JJ.A. March 4, 2021 154 O.R. (3d) 424 | 2021 ONCA 136

Case Summary

Charter of Rights and Freedoms — Trial within reasonable time — Remedies — Stay of proceedings — Accused applying for stay of proceedings for post-verdict sentencing delay — Net delay of just under eight months presumptively unreasonable but presumption rebutted by exceptional circumstance of dangerous offender application — Allowing Crown two months for preparation and trial judge one month to decide application resulted in post-verdict sentencing delay of just under five months — There was no Charter breach because delay was within presumptive ceiling of five months — Canadian Charter of Rights and Freedoms, s. 11(b).

The accused was tried and convicted in June 2018 for robbery with a firearm and forcible confinement, having been charged in March 2017. After the conviction, the Crown confirmed its intention to apply for a dangerous offender designation. The trial judge completed an assessment hearing in October 2018 and dismissed the dangerous offender application in November. The sentencing hearing was set for January 2019. One week prior to the sentencing hearing, the accused applied for a stay of prosecution on the basis that his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms had been breached by the delay in sentencing. The trial judge calculated a total sentencing delay of seven months and one day, to be reduced by two months and ten days for the defence's unavailability for the dangerous offender assessment, and by one month and one day for the dangerous offender application itself. The remaining post-verdict delay of three months and 20 days was found to be reasonable. The application was dismissed and the accused was sentenced to nine years' imprisonment. The accused appealed his conviction and sentence.

Held, the appeal should be dismissed.

The trial judge erred in calculating the delay, but the delay as properly determined was still within the presumptive ceiling of five months for post-verdict sentencing delay. The Crown and the trial judge were available to commence the assessment hearing in July 2018 but the defence was not. However, the delay until October 2018 was not attributable to the defence. The defence was prepared to proceed in August but the Crown was not, and there appeared to be no opposition to the argument that the Crown was not realistically available to argue the application in July. With no defence delay to subtract, the net delay was just under eight months and thus presumptively unreasonable. However, the presumption was rebutted by the exceptional circumstance of the dangerous offender application, which was clearly not frivolous. Four months and eight days passed between the date of the verdict and the dismissal of the dangerous offender application. Subtracting that delay brought the remaining delay well within the five-month ceiling. Given the sparse materials the Crown compiled for the dangerous offender application, a reasonable time requirement for preparation was two months. It took just over a month for the trial judge to decide the application, so attributing three months to the application and deducting it from the net delay left a post-verdict sentencing delay of just under five months. That delay, while perhaps unfortunate, did not breach the accused's s. 11(b) right to trial within a reasonable time. Because the delay did not exceed the presumptive ceiling, there was no need to rely on the transitional exceptional circumstance.

Cases Cited:

Other cases referred to:

R. v. Hogg, [2011] O.J. No. 5963, 2011 ONCA 840, 287 O.A.C. 82

Statutes referred to:

APPEAL from conviction and sentence by McPherson J. for robbery with a firearm and forcible confinement.

Counsel:

Chris Rudnicki, for appellant. Tracy Kozlowski, for respondent.

The judgment of the court was delivered by

LAUWERS J.A.:

[1] Some post-verdict sentencing delay often occurs in criminal cases. Such delay can violate an offender's right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms. In R. v. Charley (2019), 147 O.R. (3d) 497, [2019] O.J. No. 4693, 2019 ONCA 726, per Doherty J.A., this court laid out the governing principles.

[2] Charley set the presumptive ceiling for post-verdict sentencing delay at five months, with certain exceptions. Doherty J.A. said, at para. 87: ". . . I stress that five months is not the norm, and should not be allowed to become the norm." He explained: "five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b)." He added: "The onus falls to the Crown to justify the delay."

[3] The court also held that the principles set out in R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, governing pre-verdict delay should be applied, with necessary modifications, to post-verdict sentencing delay. Doherty J.A. noted that exceptional circumstances could justify delay above the presumptive ceiling, including a dangerous offender application as a discrete event, and including the transitional exceptional circumstance for cases in the system before the introduction of the new ceiling: Charley, at paras. 98, 100, 105.

[4] In R. v. Hartling (2020), 150 O.R. (3d) 224, [2020] O.J. No. 1438, 2020 ONCA 243, per Benotto J.A., the court found that the usual remedy for a breach of the presumptive ceiling for sentencing delay was not a stay of prosecution but a mitigation of sentence.

[5] The trial judge did not have the benefit of this court's decisions in Charley and Hartling. The argument before us took these cases into account. Applying the principles in Charley and Hartling, the post-verdict delay in this case was not unreasonable.

Facts and Decision Below

[6] The appellant was charged on March 28, 2017, tried from June 4-6, 2018, and convicted on June 27, 2018 of robbery with a firearm contrary to s. 344(1)(a), and forcible confinement contrary to s. 279(2), of the Criminal Code, R.S.C. 1985, c. C-46. The total time from charge to conviction was 14 months and 29 days. There was no defence delay; defence concessions simplified the proceedings.

[7] The trial judge detailed the delay in sentencing. She noted that the Crown advised the defence of the possibility of a dangerous offender application in June 2017, during the judicial pretrial phase of the case, and confirmed its intention after the conviction on June 27, 2018. The Crown applied under s. 752.1 for an assessment hearing. On July 11, 2018, a hearing date was set for October 4, 2018. The trial judge noted that the first date available to the Crown and the court was July 24, 2018, but the defence was not available on that date.

[8] The trial judge completed the assessment hearing on October 4, 2018 and dismissed the dangerous offender application on November 5, 2018. The sentencing hearing was set for January 28, 2019 and a pre-sentence report was ordered.

[9] On January 21, 2019, the appellant brought an application for a stay of the prosecution on the basis that his s. 11(b) Charter right to be tried within a reasonable time had been breached by the delay in sentencing. The application was heard on January 28, 2019 and dismissed on February 14, 2019. The appellant was sentenced to nine years' imprisonment on February 26, 2019.

[10] The trial judge calculated a total sentencing delay of seven months and one day. She took the view that this total should be reduced by two months and ten days on account of the defence's unavailability for the dangerous offender assessment, and by one month and one day for the dangerous offender application itself. Deducting a total of three months and 11 days, she found the remaining post-verdict delay to be three months and 20 days. The trial judge concluded that this delay was not unreasonable.

The Positions of the Parties

[11] The appellant submitted that the five-month presumptive ceiling was breached by the post-verdict sentencing delay. He argued that the trial judge mischaracterized two months and ten days as defence delay, and that the Crown's application for a dangerous offender designation was frivolous. The possible validity of the second argument was acknowledged by Doherty J.A. in Charley, at para. 102. The appellant argued that because the sentencing delay was excessive and unjustified, the sentence should be reduced, and proposed a reduction of ten per cent or 11 months in the sentence, citing Hartling.

[12] The Crown submitted that the dangerous offender application was not frivolous, so that, following Charley, at para. 100, it must be treated as a discrete event and an exceptional circumstance. Accordingly, the time taken for the application is to be deducted from the net sentencing delay, as Charley prescribes at para. 104. The Crown also argued that the transitional exceptional circumstance for cases in the system before the introduction of the new presumptive ceiling, recognized in Charley, at para. 105, should be applied.

The Post-Verdict Sentencing Delay

[13] The presumptive ceiling for post-verdict sentencing delay operates "in the same manner, and with the same qualifications" as the pre-verdict ceilings set out in Jordan: Charley, at para. 128. Under the Jordan framework for pre-verdict delay, the total delay is measured "from the charge to the actual or anticipated end of trial": Jordan, at para. 49. In fixing the presumptive ceiling for sentencing, Doherty J.A. set the relevant time as "the time between verdict and sentencing", at para. 84. On the facts in Charley, at para. 95, he calculated the total post-verdict delay from the date of the finding of guilt to the anticipated date of sentence. Accordingly, in line with Charley and applying the Jordan framework, total sentencing delay should be calculated from the date of the verdict to the actual or anticipated date of the sentence.

[14] The trial judge calculated a total delay of seven months and one day, from the date of the verdict, June 27, 2018, to the date on which the s. 11(b) application was heard, January 28, 2019. The total delay in this case should instead be calculated from the date of the verdict, June 27, 2018, to the date on which the appellant was sentenced, February 26, 2019. The total post-verdict sentencing delay is therefore just under eight months.

[15] Delays attributable to the defence must be subtracted from the total delay: Jordan, at para. 60; and see Charley, at para. 95. The Crown and the trial judge were available to commence the s. 752.1 hearing on July 24, 2018, but the defence was not. That hearing took place on October 4, 2018. The trial judge attributed the period of delay between those two dates, two months and ten days, to the defence.

[16] However, this period of delay was not properly attributable to the defence. In setting the date for the s. 752.1 hearing, the defence gave available dates in July and August 2018, and specifically said: "I would take an August date if my friend can accommodate it." The trial Crown said: "With respect to an August date, I think that will be difficult at this point."

[17] This was not a case where the Crown was ready to proceed and the defence was not: Jordan, at para. 64. The appellant argues, and the Crown does not appear to contest, that the Crown was not realistically available to argue the application on July 24, 2018. There is no indication of any other dates between July and October 2018 on which the Crown and the court were available but the defence was not. On this basis, this period of delay cannot fairly be attributed to the defence.

[18] No other period of delay was attributed to the defence. With no defence delay to subtract, the net delay is just under eight months, exceeding the five-month ceiling by three months. This delay is presumptively unreasonable, a presumption that can only be rebutted by exceptional circumstances: Jordan, at para. 68. There are two potentially relevant exceptional circumstances in this case: the dangerous offender application, and the transitional exceptional circumstance.

(1) The dangerous offender application

[19] A dangerous offender application is properly characterized as an exceptional circumstance: Charley, at para. 98. However, where that application is frivolous, the Crown cannot rely on it as an exceptional circumstance to reduce the net delay: Charley, at para. 102.

[20] The appellant argues that the dangerous offender application in this case was frivolous. That argument fails on the trial judge's own assessment. She said:

While the Crown was ultimately unsuccessful in their endeavor for the assessment, and they relied on rather generic material, there is nothing to suggest that such an application viewed in hindsight was an inappropriate or an abusive use of Crown discretion. Furthermore, while the Supreme Court of Canada meant to change the culture of complacency in criminal court by urging all parties to make meaningful progress in a case, I do not read the decision to require either party to perform to a standard of perfection or to only litigating successful applications.

(Emphasis added)

[21] In my view, the dangerous offender application was clearly not frivolous. To be clear, I should not to be taken as approving the trial judge's approach to the evidence of dangerousness. To the contrary, the pattern of violence exhibited by the appellant could have formed the basis of the dangerous offender designation, consistent with the principles in R. v. Hogg, [2011] O.J. No. 5963, 2011 ONCA 840, at para. 40. Here, the trial judge identified a pattern of escalating violence. I disagree with her statement that, necessarily, "a pattern of behaviour is something more than a history of violent criminal offending". A pattern could exhibit hallmarks, but it need not. The key question is whether the offender would likely reoffend in the same way -- by excessive violence -- in the future.

[22] In Charley, at para. 100, Doherty J.A. attributed the time between the verdicts and the dismissal of the s. 752.1 application to the exceptional circumstance of the dangerous offender application. Here, the date of the verdict was June 27, 2018, and the s. 752.1 application was dismissed on November 5, 2018. A period of four months and eight days passed between these dates.

[23] This delay, if subtracted from the net delay of just under eight months, would bring the remaining delay well within the five-month ceiling. However, Doherty J.A. notes, in Charley, at para. 98, that even where delay can be attributed to an exceptional circumstance, the Crown has an obligation to mitigate the delay. The appellant submitted that the Crown failed to do so in this case and argues that the Crown delayed collecting material on the application and providing it to the defence, even though the sparse materials the Crown ultimately relied upon were available before conviction.

[24] As noted, the trial judge attributed much of the delay prior to the dismissal of the s. 752.1 application to the defence and found that the application caused a "not particularly long" delay of one month and one day. In Charley, at paras. 97 and 99, Doherty J.A. found that the Crown acted reasonably where the s. 752.1 application caused a five-month delay. But in Charley, unlike in this case, the Crown began to assemble the application materials before the verdict and relied upon material that was not available until after the verdict: Charley, at para. 97.

[25] The reasonable time requirement for the preparation of the s. 752.1 application falls between one and five months. I would set the reasonable time requirement, given the sparse materials the Crown compiled, at two months. It took just over a month for the trial judge to decide the application. Three months can therefore be attributed to the application and deducted from the net delay for the exceptional circumstance of the dangerous offender application in this case.

[26] This leaves a remaining post-verdict sentencing delay of just under five months, which is just below Charley's presumptive ceiling. This delay, while perhaps unfortunate, did not breach the appellant's s. 11(b) Charter right.

(2) The transitional exceptional circumstance

[27] As noted in Charley, at para. 105, the transitional exceptional circumstance identified by the Supreme Court of Canada in Jordan, at paras. 95-104, applies with necessary modifications to post-verdict sentencing delay. The transitional exceptional circumstance would apply in this case because the post-verdict delay in sentencing occurred before the release of this court's decision in Charley. Because the remaining delay does not exceed the presumptive ceiling, there is no need to rely on the transitional exceptional circumstance in this case.