COURT OF APPEAL FOR ONTARIO
DATE: 20210111 DOCKET: C67109
Juriansz, Jamal and Coroza JJ.A.
BETWEEN
Her Majesty the Queen Appellant
and
Floriano Daponte and Vivian Hamilton Respondents
Counsel: Anjie Tarek-Kaminker and Brian G. Puddington, for the appellant Mark C. Halfyard, for the respondent Floriano Daponte Etai Hilzenrat, for the respondent Vivian Hamilton
Heard: December 10, 2020 by video conference
On appeal from the stay entered by Justice Michael D. McArthur of the Superior Court of Justice on June 6, 2019, with reasons reported at 2019 ONSC 3822, 156 W.C.B. (2d) 447.
Coroza J.A.:
I. OVERVIEW
[1] The respondents, Floriano Daponte and Vivian Hamilton, were charged with several drug offences, possession of proceeds of crime and possession of a prohibited weapon (a “flick knife”). The trial judge found that their right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed and stayed the proceedings.
[2] The trial judge, relying on the framework set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, held that the net delay was 30.5 months, which exceeded the presumptive ceiling of 30 months and was presumptively unreasonable. He held that the Crown did not rebut the presumption that the delay was unreasonable because it had not established the presence of exceptional circumstances or that the case was particularly complex.
[3] The Crown appeals on the basis that the trial judge erred in his application of the Jordan framework. It argues that the trial judge erred in finding that a certiorari application brought by the respondents after they were committed for trial was not an exceptional circumstance. The delay caused by this proceeding (3 months) should have been subtracted from the net delay, resulting in remaining delay of 27.5 months. Since the remaining delay fell below the presumptive ceiling, the onus was on the respondents to show that the delay was unreasonable. According to the Crown, the respondents have not established that this is one of the clear cases where a stay should be granted.
[4] I would allow the appeal. The trial judge erred in finding that the respondents’ certiorari application was not an exceptional circumstance. This court has previously held that when the defence brings a certiorari application in good faith, that proceeding is an exceptional circumstance because the decision to bring the application would be outside the control of the Crown, unless in opposing such an application the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner.
[5] In my view, the trial judge improperly focused on the fact that the Crown took a frivolous position with respect to just one aspect of the certiorari application in order to find that the entire application was not an exceptional circumstance. While the respondents were partially successful on the certiorari application because the prohibited weapon count was quashed, it is apparent that the trial judge lost sight of the fact that the balance of the certiorari application was dismissed. The committals for trial on the drug charges and the proceeds charge were upheld. The Crown did not act unreasonably in opposing the application and the proceeding should have been considered an exceptional circumstance. The time allocated for that proceeding (3 months) should have been deducted from the net delay, leaving remaining delay of 27.5 months that did not breach the presumptive ceiling. This case is also not one of the clear cases where a stay should be granted notwithstanding that the delay falls below the presumptive ceiling.
II. HISTORY OF PROCEEDINGS
[6] The respondents were arrested on December 2, 2016, following a year long police investigation. The investigation included acting on information provided by ten confidential informants and police surveillance of a rural property owned by one of the respondents. On the day the respondents were arrested, the police executed a search warrant at the property and seized drugs, cash, paraphernalia consistent with drug trafficking and a flick knife.
(i) The Certiorari Application
[7] The case proceeded in the Ontario Court of Justice in a straightforward manner.
[8] After a preliminary hearing that took place over three days, the respondents were committed on a total of nine charges on November 17, 2017. The case was then adjourned to December 12, 2017 in the Superior Court of Justice. In the meantime, the respondents challenged the committals for trial by serving a certiorari application in relation to all nine counts on December 1, 2017.
[9] The application was heard on January 25, 2018. On March 16, 2018 the application judge rendered her decision dismissing the application except for the weapon charge which she quashed.
(ii) The Delay Following the Certiorari Application
[10] Following the release of the application judge’s ruling, the trial was scheduled for ten days starting on March 4, 2019 with pre-trial motions scheduled for December 10 and 11, 2018. The pre-trial motions filed by the respondents claimed that the police had violated their s. 8 Charter rights against unreasonable search and seizure.
[11] In response to the motion, the Crown made further disclosure to the respondents on December 3, 2018. That disclosure consisted of unredacted portions of the search warrant that was issued in this case. The Crown had previously withheld portions of the warrant based on changing levels of perceived harm to informants and based on the privacy interests of other individuals. Upon receipt of this disclosure, the respondents filed an additional pre-trial motion alleging a breach of s. 7 of the Charter and seeking the remedy of excluding this new disclosure. Both parties agreed that the s. 7 application logically had to precede the hearing of the s. 8 application since the relief sought by the respondents included the exclusion of evidence required for the s. 8 application. Both parties also agreed that four days instead of two were now required to argue the motions.
[12] As a result of these developments, the motions did not proceed on December 10, 2018 as originally scheduled. The parties met with the local administrative judge and the trial coordinator to reschedule the motions. However, there were no available dates to hear the motions until the originally scheduled trial date commencing March 4, 2019.
[13] Ultimately, the original trial dates scheduled for March were now scheduled as dates for the pre-trial motions and the trial dates were rescheduled to start on June 4, 2019. On May 13, 2019, the respondents filed the s. 11 (b) application. The trial judge heard the application and granted a stay of proceedings on June 6, 2019.
III. LEGAL FRAMEWORK
(i) The Jordan Framework
[14] In assessing the s. 11 (b) application, the trial judge was required to apply the framework set out by the Supreme Court of Canada in Jordan. That framework has been summarized by Gillese J.A. in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 451, at paras. 34-41, as follows:
[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
[41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96) [Emphasis in original.].
(ii) Standard of Review
[15] The trial judge’s characterization and allocation of various periods of delay, as well as the ultimate decision to impose a judicial stay for unreasonable delay, involves a question of law subject to a correctness standard of review: R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27. However, the trial judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error: R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71, leave to appeal refused, [2010] S.C.C.A. No. 3; R. v. N.N.M., 2006 ONCA 436, 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 6.
IV. DISCUSSION
[16] The Crown makes two submissions on the appeal. First, the trial judge erred by not properly characterizing the time to hear and complete the respondents’ certiorari application as an exceptional circumstance to be deducted from the net delay. Second, if that time had been deducted, the net delay would have fallen below the presumptive ceiling to 27.5 months, and the respondents would have the onus to establish that this was a “clear case” where the case should be stayed.
[17] The respondents argue that the trial judge did not err in applying the Jordan framework. According to the respondents, the trial judge found that the Crown’s response to the weapons count was frivolous and this court should defer to the trial judge’s ultimate finding that the certiorari application was not an exceptional circumstance that should be deducted from the net delay.
[18] Alternatively, the respondents contend that even if the remaining delay in this case did not breach the presumptive ceiling, the delay of 27.5 months was nonetheless unreasonable. The respondents rely on the trial judge’s findings that the defence did not cause any of the delay, the case was not complex, there were a chronic lack of judicial resources in London, and the Crown made untimely disclosure.
Ground #1: Did the Trial Judge Err in Finding that the Certiorari Application was not an Exceptional Circumstance?
[19] In R. v. Tsega, 2019 ONCA 111, 144 O.R. (3d) 561, leave to appeal refused, [2019] S.C.C.A. No. 106, this court held that delay caused by defence applications for extraordinary remedies, including certiorari, generally constitutes an exceptional circumstance. Hourigan J.A. held, at para. 83:
With regard to defence applications, where they are frivolous or made in bad faith, they will generally constitute defence delay. Where they are brought in good faith, they constitute an exceptional circumstance because they would be outside of the control of the Crown, unless in opposing such an application or an appeal therefrom the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner [Emphasis added.].
[20] The trial judge in this case distinguished Tsega because he found that the outcome on the prohibited weapon count was obvious and foreseeable and litigation on this count was avoidable and within the Crown’s control to address and remedy. In his view, the Crown should have conceded the weapon charge before or at least at the certiorari hearing.
[21] I do not consider it necessary to address the Crown’s argument on appeal that the trial judge erred in finding that the outcome of the prohibited weapon count was obvious and foreseeable. Assuming that there was a basis to find that litigation about the flick knife was avoidable, I do not agree that the Crown’s conduct in relation to that single count distinguished this case from this court’s holding in Tsega.
[22] The respondents had been committed for trial on nine counts. The litigation did not focus on a single count of a weapon in relation to a flick knife that was found in the home. This case remains one involving the seizure of drugs and proceeds of crime. There is no suggestion in this case that the Crown acted in bad faith, took a frivolous position or responded in a dilatory manner in relation to the drug and proceeds charges. Indeed, the Crown had no control over the respondents’ decision to bring a certiorari application on all of the charges and there is no suggestion that the litigation was avoidable in relation to those counts.
[23] A review of the application judge’s reasons fortifies my conclusion. In a decision that spanned 17 pages and 82 paragraphs, one single paragraph is devoted to the issue of the flick knife. Respectfully, the trial judge erred by concluding that the respondents’ application was not an exceptional circumstance because of the Crown’s conduct in relation to just one count, notwithstanding its appropriate conduct and successful defence in relation to all the other counts.
[24] The parties on this appeal do not dispute that if the delay for the certiorari application (3 months to argue the application and receive reasons for ruling) is subtracted from the net delay, the remaining delay would be 27.5 months, which falls below the ceiling. As set out above, Jordan holds that if the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. I now turn to the Crown’s second argument.
Ground #2: Have the Respondents Demonstrated that this a Clear Case of Unreasonable Delay?
[25] The Crown argues that since the remaining delay falls under the presumptive ceiling, it is the respondents’ onus to establish that this is one of the clear cases where, notwithstanding that the delay falls below the ceiling, it is unreasonable.
[26] The respondents contend that if the remaining delay falls below the presumptive ceiling, the delay will still be unreasonable if they can establish the following two conditions:
The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and
The case markedly exceeded its reasonable time requirements.
[27] At the outset, it is important to recall that Jordan expected stays for delay in cases that fell below the presumptive ceiling “to be rare, and limited to clear cases”: at para. 48.
(i) Sustained Effort to Expedite the Proceedings
[28] I acknowledge that the trial judge found that the respondents acted in a timely, diligent, and reasonable manner and that they desired for the case to move forward. His findings do not disclose palpable and overriding error and support the respondents’ submission that they took meaningful steps that demonstrated a sustained effort to expedite proceedings. Accordingly, the respondents have satisfied the first condition.
(ii) Markedly Exceeded Reasonable Time Requirements
[29] However, as noted above, the respondents must also meet a second pre-condition for obtaining a stay of proceedings in cases of delay falling under the 30-month ceiling. That pre-condition requires the respondents to show that the case markedly exceeded the reasonable time requirements of the case, which is a question of fact: Jordan, at para. 91.
[30] As set out in Jordan, determining whether a case has taken markedly longer is not a matter of precise calculation. The reasonable time requirements to get a case to trial depend on a variety of factors, including the complexity of the case, whether the Crown took reasonable steps to expedite the proceedings and local conditions. I turn to the application of those factors.
[31] I see no basis to interfere with the trial judge’s finding that this was not a complex case. Although the case was set for two weeks of trial, the trial judge noted that the Crown’s witnesses were police officers, the issues to be litigated at trial were relatively narrow and the proceedings were straightforward.
[32] I also agree with the trial judge’s observations that the Crown exclusively had the control, power and obligation to periodically revisit and reassess the withholding of disclosure involving confidential informants and to be sensitive to timeliness in relation to the defence and their rights to full answer and defence. I agree with the trial judge that this did not happen and that the late disclosure was as a result of a somewhat late response to the s. 8 application.
[33] With respect to local conditions, Jordan instructs trial judges to employ knowledge of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of relevant local considerations and systemic circumstances.
[34] The question then becomes whether the delay of 27.5 months for a ten-day drug trial involving two accused is markedly longer than was reasonable for London, Ontario. While the trial judge and the local administrative judge made some comments about the shortage of judicial resources, including judicial vacancies, nothing on this record would establish how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances: Jordan, at para. 89. I also note that the trial judge specifically found that the case progressed normally while it was in the Ontario Court of Justice; the 11 months and 15 days before that court was not impacted by the judicial vacancies in the Superior Court of Justice.
[35] The respondents highlight the trial judge’s comments that significant ongoing limited judicial resources impacted this case and played a role in the difficulties encountered. I acknowledge that the trial judge expressed his concern that the Superior Court in London was under-resourced and did not have the luxury to address late-breaking unforeseeable circumstances. However, the trial judge’s comments do not assist in this regard because, as noted above, he proceeded on the erroneous premise that the presumptive ceiling had been breached. He did not turn his mind to whether this trial took markedly longer than it should have even with the late-breaking developments of the case.
[36] According to the Supreme Court of Canada, in determining whether a trial took markedly longer than it should have, it is necessary to “step back from the minutiae and adopt a bird’s eye view of the case”: Jordan, at para. 91.
[37] According to the trial judge, the parties agreed that up until December 7, 2018, the case was on track for the trial which was initially scheduled to proceed on March 4, 2019 for 10 days. The trial judge explained that it was only after this point that the “critical and problematic circumstances in this case then arose”. If the trial had proceeded as initially scheduled, the remaining delay would have totalled approximately 24.5 months. While the respondents had indicated availability for earlier trial dates, they accepted the dates in March, and no complaint was made that 24.5 months meant the case was taking markedly longer than it should have. Although the Crown’s late disclosure and respondents’ s. 7 Charter application served on December 7, 2018 led to a further delay of 3 months, the net delay of 27.5 months remained well below the ceiling. Taking a bird’s eye view of the case, I have concluded that this is not one of the clear cases where a stay should be granted for delay.
V. DISPOSITION
[38] For these reasons I would allow the appeal, set aside the stay of proceedings and remit the matter to the Superior Court of Justice for trial.
Released: “R.G.J.” January 11, 2021
“S. Coroza J.A.”
“I agree. R.G. Juriansz J.A.”
“I agree. M. Jamal J.A.”
