Court of Appeal for Ontario
Date: March 21, 2022 Docket: C68302
Judges: Tulloch, van Rensburg and Nordheimer JJ.A.
Between: Her Majesty the Queen Respondent
And: Dwayne Campbell Appellant
Counsel: James Foy, for the appellant Michael Fawcett and Andrew Hotke, for the respondent
Heard: September 7, 2021 by video conference
On appeal from the convictions entered by Justice David E. Harris of the Superior Court of Justice on July 10, 2019.
Nordheimer J.A.:
[1] Mr. Campbell appeals from his convictions for robbery, forcible confinement, and use of an imitation firearm in the commission of an offence. The appellant submits that the application judge erred in dismissing his application for a stay arising from an alleged breach of his right to be tried within a reasonable time, contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms. For the following reasons, I would dismiss the appeal.
A. Background
[2] While it is not necessary to review every court appearance in this case in order to properly address the s. 11(b) issue, some recitation of the history of this matter is required.
[3] The appellant was arrested on February 16, 2017 and brought to court the following day. The allegations arose from a home invasion robbery that took place on December 19, 2016. The appellant’s co-accused had been arrested on the day of the robbery, a short distance from the scene.
[4] On March 9, 2017, a judicial pre-trial was scheduled for March 23. The appellant was represented but the appellant’s co-accused was not. Consequently, the pre-trial took place in court. Crown counsel said that he had provided disclosure both to the appellant’s counsel and to prospective counsel for the co‑accused. There was some issue over whether prospective counsel would, in fact, be retained by the co-accused. Six days was settled upon as a time estimate for the preliminary hearing, but the court lacked dates before 2018.
[5] On March 30, the parties appeared again and succeeded in securing target preliminary inquiry dates for September 2017, with a single date in October for a witness significant to the case against the co-accused. The co-accused objected to setting dates for the preliminary hearing.
[6] A continuing judicial pre-trial was then scheduled for April 13, 2017. The Crown obtained an order appointing counsel to cross-examine one child witness on behalf of the co-accused pursuant to s. 486 of the Criminal Code, R.S.C. 1985, c. C-46. On April 26, the Crown reported that Legal Aid had said that they were willing to issue a certificate to fund counsel for the co-accused, but the co-accused said that he was not sure that he would use the Legal Aid certificate that had been offered. The appellant’s bail hearing was scheduled for May 2. It proceeded that day and the appellant was ordered detained in custody.
[7] On May 5, 2017, the parties appeared again. The co-accused stated that he would proceed without a lawyer because he mistrusted everyone involved. A date was set for a bail hearing for the co-accused and he was ultimately ordered detained.
(1) The First Trial Date
[8] The preliminary inquiry proceeded as scheduled on the target dates set in September, and both accused were committed for trial on September 13, 2017. The co-accused was represented by counsel at the hearing. On September 29, the parties made a first appearance in the Superior Court, saying they were prepared to set judicial pre-trial dates. They agreed on October 26, 2017. The presiding judge pushed the parties to also target trial dates. Eventually, June 11, 2018 was selected for an anticipated 12-day jury trial.
[9] In the last week of May 2018, less than two weeks before the trial was scheduled to begin, counsel for the co-accused successfully applied to be removed from the record. On June 1, the co-accused appeared in person and said he had asked Legal Aid for a change of counsel. Prospective new counsel for the co‑accused was not able to proceed on the scheduled June 11 trial date. The co‑accused was unwilling to proceed without a lawyer and effectively requested an adjournment. The appellant’s counsel stated that she was prepared to proceed and that, given that the appellant was in custody, she wanted to maintain the June 11 date. Crown counsel said she was prepared to proceed but was in an “awkward position” given that they could not force the co-accused on when he was requesting a lawyer. The trial dates were ultimately vacated.
(2) The Second Trial Date
[10] On June 22, 2018, the parties appeared again. The co-accused was still waiting for Legal Aid to decide his change of solicitor request, but the Crown and the appellant sought to set target dates immediately in order not to lose any further time. The co-accused’s prospective new counsel was not present but conveyed through the appellant’s counsel that he wanted a further pre-trial but could not commit to dates before he was retained. The court offered January 21, 2019 for a two-week trial and the appellant and the Crown agreed to those dates. The trial was set “with or without counsel” in respect of the co-accused.
[11] The case was spoken to again on July 13, 2018. By this time, Legal Aid had denied the co-accused’s change of solicitor application. The co-accused intended to appeal that decision. The co-accused’s prospective new counsel had also conveyed that he was not available for trial on January 21, 2019 and the Crown had discovered that an important witness for them would also be unavailable at that time. Both the Crown and the co-accused were considering an adjournment application. The appellant’s counsel reiterated that she was anxious to proceed.
[12] At the next appearance, on August 10, the co-accused’s Legal Aid appeal had been refused. He had one further internal Legal Aid appeal which was estimated to take four weeks. The appellant’s counsel stated that she wished to know “sooner rather than later” if the January 21 date would be adjourned. The presiding judge said that, while he was sympathetic to her position, he saw no alternative to returning in a month, on September 14. By that day, the co-accused’s Legal Aid appeals had been exhausted. He said that he intended to bring a Rowbotham application. The case returned several times during the fall. The co‑accused eventually succeeded in obtaining a Rowbotham order.
[13] On December 14, 2018, the co-accused’s new counsel applied to adjourn the January 21 trial date. The application was opposed by the appellant and by the Crown. The presiding judge denied the adjournment.
[14] The parties appeared on December 20, 2018, and then again on January 9, 2019, to see whether the co-accused could retain counsel available for the trial dates. The co-accused insisted that he wanted to be represented by the specific counsel who was unavailable. At the January 9 appearance, the presiding judge commented that “to adjourn the case to a date when he’s available would require [the appellant] to sit in jail for about a year from his first trial date, and the first trial got adjourned because you discharged your lawyer”. The presiding judge also noted that the trial had been set “with or without a lawyer”. The appellant’s counsel commented that, if an adjournment had been sought earlier and the resulting delay would have been limited, then the appellant may have consented, but that the prospect of a further six months’ delay was intolerable. The issue of severance was raised, but Crown counsel stated their position that a joint trial was important to avoid having the child witness testify twice.
[15] On the day of trial, January 21, 2019, the co-accused was unrepresented and requested an adjournment on the basis that he had not had access to his disclosure in custody and so was not able to proceed. This time the adjournment was granted, over the objection of the appellant, whose counsel noted that she was ready to proceed and that the appellant was not waiving his s. 11(b) rights.
(3) The Third Trial Date
[16] On January 29, 2019, the parties returned to set new trial dates. The Crown reiterated its position to proceed with a joint trial because of the child witness. With respect to the resulting delay, Crown counsel noted that “if I have to argue it down the line at some point as to whether that was a reasonable call, I’ll make that argument”. The co-accused’s new counsel did not appear but conveyed that he was available for trial starting on July 8 although the court had offered earlier dates. The appellant’s counsel was available for those earlier dates and reiterated her concern about delay.
[17] The presiding judge pressed the Crown to consider severance so that the appellant’s trial could be scheduled for late February dates for which his counsel could make time. The Crown indicated this may be an option in the event of a re‑election. The appellant did not commit to re-electing and was remanded to the trial date of July 8, 2019.
(4) The Application to Stay the Proceedings
[18] The appellant applied for a stay of proceedings for a violation of s. 11(b). The application was heard by Shaw J. on June 14, 2019. [1] The parties agreed that the total effective delay to be considered was 28 months and 26 days, which was below the presumptive ceiling of 30 months set in R. v. Jordan, 2016 SCC 27, at para. 49. They also agreed that the bulk of the delay was caused by the co-accused.
[19] The application judge dismissed the application. She found that neither part of the Jordan test for cases under the ceiling had been met. She found that the appellant could not be said to have taken meaningful steps to expedite in view of his failure to apply for severance. Specifically, she found that the appellant could have moved for severance immediately following each of the two adjourned trial dates. She also found that the case had not taken markedly longer than it reasonably should have.
B. Analysis
[20] In Jordan, the court explained, at para. 82, that in order for the defence to obtain a stay for breach of s. 11(b) for a case that took less time than provided for by the presumptive ceiling, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. The court stated that it expected stays beneath the ceiling to be rare and limited to clear cases: at paras. 48, 83.
(1) Meaningful Steps to Expedite the Proceedings
[21] The respondent concedes that the application judge erred in finding that the appellant had failed to take meaningful steps to expedite the trial. In particular, the respondent agrees that the application judge erred in finding that the appellant had failed in his efforts to expedite his trial by not bringing a motion for severance.
[22] On this point, the application judge found, at para. 55:
The applicant's position that his severance application would likely have been denied based on all the principles surrounding joint trials cannot be used as a shield to justify why this meaningful step was not taken. The applicant cannot say that he did not take a step as he did not think he would be successful, and then rely on that same doctrine – severance – as a sword to say that it forms the basis or reason why the trial did not proceed within a reasonable timeframe.
[23] The respondent says, and I agree, that requiring an accused person to demonstrate that they have taken sustained, meaningful steps to expedite proceedings does not include requiring them to bring motions that are doomed to fail. Unmeritorious motions only add to the consumption of court time and thus create further delay, if not for the case at hand, then potentially for other cases. To quote the respondent, “the parties were right to dispense with the formality of a severance application and avoid clogging up the system and using scarce judicial resources to argue over something that was hopeless.”
(2) Delay Markedly Exceeding the Reasonable Time Requirements
[24] The issue then becomes whether the case had taken markedly longer than it should have. On this issue, the appellant points to the fact that the application judge found that that the case “is not a factually or legally complex matter.” He also points to the fact that the first trial date had been set for a year earlier, and states that this provides a ready-made yardstick by which to measure how long the case ought to have taken to get to trial. On that latter point, the appellant relies on the decision in R. v. Belle, 2018 ONSC 7728, 424 C.R.R. (2d) 233, where Harris J. made the point that the first trial date provided “a ready-made yardstick of the reasonable time requirements of the case”: at para. 8.
[25] With respect, I do not agree that the first trial date necessarily provides a marker for the reasonable time requirements of the case. The practical reality is that first trial dates are often set optimistically when it is not certain that the parties will, in fact, be ready for trial. Indeed, that was the situation in this case in light of the issues with the co-accused. It must be recognized, given the pressures on the parties to set dates in order to keep the case moving forward, that a first trial date may be more aspirational as to timing than it is realistic.
[26] The first trial date in Belle may have been a better measure since the only reason for the loss of the trial date was the last-minute disclosure by the Crown of a large amount of information, something that the trial judge found should never have happened: Belle, at paras. 3, 22-24. However, in this case, the first trial date was set when there were many indicators that it might not be met. For example, the date was set before there had been a judicial pre-trial. Any number of issues might have arisen at the judicial pre-trial that would have brought the first trial date into question. Further, the parties knew that there were ongoing issues respecting the co-accused that could reasonably have been anticipated to potentially derail the trial date that had been set. Of course, this is exactly what happened.
[27] My view that the first trial date does not necessarily provide an appropriate measure for how long a case should reasonably take is reinforced by the decision in Jordan. In its decision, the court set out what it meant by this second factor. It said, at para. 87:
The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.
[28] These various factors demonstrate why a first trial date may not be an accurate measure of how long a case should reasonably take. I would point out, on this question, that there is a difference between when a trial might be completed and when it should be completed. As Jordan points out, there may be a variety of factors that come to bear on the reasonable time requirements of a case. There may be issues such as outstanding disclosure, the availability of experts or expert reports, erroneous trial estimates, and other issues that may highlight that the first trial date may not be an accurate one. Nevertheless, often such trial dates are set expectantly and, as I have said, to keep the case moving. Other issues may loom large on this point, including the one that drove this case, that is, the actions of a co-accused.
[29] The other important aspect of this second factor is the point made in Jordan that the case must “markedly” exceed the reasonable time requirements of the case. As stated in R. v. K.J.M., 2019 SCC 55, 439 D.L.R. (4th) 607, at para. 107:
To be clear, under this branch of the test, the issue is not whether the case should reasonably have been completed in less time. Rather, it is whether the case took markedly longer than it reasonably should have. [Emphasis in original.]
[30] Again, it was easier in Belle to conclude that the case took markedly longer than it reasonably should have because the only reason for the loss of the first trial date was the last minute, unexplained delivery of a significant amount of disclosure. That should not have happened, and thus it was easier to say that the delay it caused was outside the reasonable time requirements for that case.
[31] However, in this case, the delay was almost entirely caused by the actions of the co-accused coupled with the Crown’s refusal to consider severance. It will be self-evident that cases in which there is more than one accused will likely take longer to get through a trial because of the need to accommodate the schedules and demands of more parties and more counsel: see Jordan, at para. 77.
[32] The history of this case ought to have made it clear to all concerned that there were likely to be additional problems caused by the co-accused. While the Crown had a good reason to want to avoid severance, it nonetheless had to realize that its position on that issue was likely to invite additional delay. I note, on that point, that one of the factors that Jordan identifies in determining whether the case took markedly longer than it ought to have is “whether the Crown took reasonable steps to expedite the proceedings”: at para. 87.
[33] Reinforcing this point is the fact that the second trial date, January 21, 2019, was set when the issues surrounding the representation of the co-accused were still unsettled. Legal Aid had consumed some period of time deciding whether it would agree to a transfer of the certificate and appeals from its decision were still outstanding. Further, the possibility of a Rowbotham application would have had to have been in everyone’s minds, if the refusal of Legal Aid to agree to a transfer was upheld. Again, of course, that is what happened.
[34] In an effort to address these problems, the second trial date was set “with or without” counsel. The immediate concern that stipulation provokes is whether, if an accused ultimately does not have counsel, they will actually be in a position to proceed. One important component of the accused person’s ability to proceed is, of course, whether they have access to the disclosure in the case. For reasons that are not clear on the record, when the second trial date was reached, and the co-accused did not have counsel, it became apparent that the co-accused did not have access to the disclosure while in custody. Therefore, despite the stipulation of “with or without counsel”, the trial could not proceed. Why the disclosure issue only became apparent at that point is also not clear.
[35] Despite all of these issues, the trial ultimately proceeded on the third trial date, still within the 30-month limit set by Jordan. The application judge considered all of these matters and concluded that the case had not taken markedly longer than it reasonably ought to have. In particular, the application judge found that the Crown’s decision not to permit severance was “not unreasonable in the context of the case”.
[36] As the court said in Jordan, at para. 91:
Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge. [Citation omitted.]
[37] The application judge’s decision is entitled to deference: Jordan, at para. 91. Given the issues with the co-accused, all of which were predictable, the trial was undoubtedly going to take longer than it otherwise would have. However, in all the circumstances, I cannot say that the application judge’s determination that the case did not take markedly longer than it should have, is an unreasonable one. Consequently, the appeal fails.
C. Remedy
[38] Given my conclusion on the s. 11(b) application, I do not need to address the respondent’s submissions regarding the appropriate remedy for a breach, including whether a remedy short of a stay of proceedings is available.
D. Conclusion
[39] The appeal is dismissed.
Released: March 21, 2022 “M.T.” “I.V.B. Nordheimer J.A.” “I agree. M. Tulloch J.A.” “I agree. K. van Rensburg J.A.”
[1] R. v. Campbell, 2019 ONSC 4228, 446 C.R.R. (2d) 326.
