Court File and Parties

Court File No.: 08-0336 County of Renfrew Date: 2013-04-29 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mark Riopelle

Before: Justice R.G. Selkirk

Heard on: April 10, 2013

Reasons for Judgment released on: April 29, 2013

Counsel:

• Elizabeth Ives-Ruyter, for the Crown
• Don Sullivan, for the accused Mark Riopelle

SELKIRK, J.:

Application for Stay

[1] The accused has brought an Application for a stay alleging a violation of s. 11(b).

[2] The accused was charged February 10, 2008. The matter is scheduled for its second trial on April 29, 2013.

[3] Obviously the time frame is such that it requires greater examination.

[4] The accused, while recognizing that the examination will break the whole period into different periods of time for the purpose of characterizing the nature of the delay, i.e. Crown delay; accused delay; inherent delay or so on, submits that his strongest argument is that the Court must look at the total delay and should conclude that five years plus is simply too long, almost adding, but not quite, no matter what the cause of the delay is.

[5] It is my intention to do an analysis as guided by the principles in the Supreme Court of Canada's decision in Morin.

[6] This is well understood to be as follows:

The general approach to a determination of whether the s. 11(b) right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which inevitably lead to delay. The factors to be considered are: (1) the length of the delay; (2) waiver of time periods; (3) the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources and (e) other reasons for delay; and (4) prejudice to the accused. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial.

Analysis of Delay Periods

[7] The length of the delay is five years and six weeks. There are four different segments of that overall time. The first is up to the completion of the first trial which was June 8, 2009. The second was the Crown appeal which was complete on January 28, 2010, when the accused first appeared pursuant to an order for a new trial. The third segment runs up to December 10, 2012 as the period that counsel were waiting for the SCC's decision in R. v. Dineley to be available. The fourth segment is from the date set of December 10, 2012 and the trial of April 29, 2013.

First Time Period: Initial Trial to June 8, 2009

[8] The first time period, while not to be ignored, does not carry much weight in this analysis. This is for two reasons. The first is that the accused puts on the record on October 31, 2008 when the first trial has to be re-scheduled that, "There will be no s.11(b) application." The second is that when new trial dates are offered the accused has a choice between February 10, 2009 and June 8, 2009 and chooses the later date. This is indicative that the accused had absolutely no complaint about the pace of this proceeding. This point was conceded by counsel during arguments on this application.

Second Time Period: Summary Conviction Appeal (June 8, 2009 to January 28, 2010)

[9] The second period covers the Summary Conviction Appeal. It is a period from June 8, 2009 to January 28, 2010, or seven and a half months. Obviously the Crown has a right to appeal. The Crown was successful on its appeal. The seven and a half months is inherent in conducting an appeal of this nature. The Crown could be criticised for not providing notice to the accused of the date set court in Superior Court in September of 2008 but the date was set in November of 2008 and the appeal was heard and decided two months later. So while it took longer than it should have to get to the point where the parties were ready to set a date, this is balanced by the rapidity of the hearing date and decision. In these circumstances there can be no complaint with respect to the delay.

[10] It is also questionable as to whether the delay for an appeal is to be counted in the overall delay. At this point, Mr. Riopelle is no longer charged with an offence although there is a proceeding outstanding to which he is a party. In R. v. Potvin, 1993, 83 CCC (3d), 97, the S.C.C wrote at paragraph 63:

"Clearly, during the period after an acquittal and the service of a notice of appeal, the person acquitted is not a person charged. No proceeding is on foot which seeks to charge the person acquitted. Upon the appeal's being filed there is a possibility, the strength of which will vary with each case, that the acquittal will be set aside and the charge will be revived. The plight of the acquitted person is that of one against whom governmental action is directed which may result in a charge. In this respect the former accused is like the suspect against whom an investigation has been completed and charges are contemplated awaiting a decision by the prosecutor. Indeed the acquitted accused is somewhat more removed from the prospect of being subject to a charge than the suspect. In the former case, no charge can be revived until the acquittal is set aside by reason of an error of law that a court determines with a reasonable degree of certainty affected the decision at trial. In the latter case, all that stands between the suspect and a charge is the ex parte decision of the prosecutor. It would be incongruous to extend protection to the acquitted accused pending appeal and not to the suspect awaiting a charge who knows he or she is awaiting the decision of the prosecutor."

[11] I therefore see this time period for the appeal as neutral. Again, I do not ignore the fact that Mr. Riopelle continues to have a criminal proceeding outstanding against him.

Reset of Constitutional Clock

[12] Once a new trial is ordered then the clocks are reset.

[13] This point is also made in Potvin at paragraph 66 which reads:

"This does not mean that when there is an adjudication relating to a charge which is appealed, s. 11(b) is spent. If on the appeal the judgment is set aside and the matter is remitted for trial, the accused reverts to the status of a person charged. As stated by D.H. Doherty (now a justice of the Court of Appeal for Ontario) in "More Flesh on the Bones: The Continued Judicial Interpretation of s. 11(b) of the Canadian Charter of Rights and Freedoms" (1984), Canadian Bar Association ‑ Ontario; Annual Institute on Continuing Legal Education, at p. 9:

Section 11(b) does not appear to operate at the appellate stage. Section 11(b) guarantees a trial within a reasonable time, not a final determination of the matter at an appellate level within that time. If, however, a new trial is ordered on appeal, or some other order is made directing the continuation of the trial proceedings, the constitutional clock should be rewound at the time of the order by the appellate court." (my emphasis)

Third Time Period: January 28, 2010 to December 10, 2012

[14] Thus day one, for the purpose of s.11(b) is January 15, 2010. The accused is back in Ontario Court of Justice Court on January 28, 2010. He asks the matter be adjourned to February 24, 2010, "to get instructions". Presumably this is whether to seek leave to appeal to the Ontario Court of Appeal or to set a date for a second trial.

[15] On February 24, 2010, at the accused's request, it is adjourned to March 10, 2010 in order to "usefully speak to the matter".

[16] On March 10, 2010 a date of October 28, 2010 is set. An earlier date of September 16, 2010 was suggested by the defence but due to the need for a visiting judge the later date is chosen. This is seven and a half months. This date is set without complaint and is well within the Morin guidelines.

The Dineley Issue

[17] On November 18, 2009, which is after the acquittal but before the Summary Conviction Appeal, the Ontario Court of Appeal reverses the Summary Conviction Appeal Court's decision in R. v. Dineley and holds that the amendments to s.258 are retrospective. A key plank to Mr. Riopelle's defence, evidence to the contrary, has now been taken away. Leave to appeal Dineley to the SCC was filed in April of 2010 which was granted in October of 2010. The appeal was heard one year later in October of 2011 and the decision released approximately one year after that in November of 2012. Mr. Riopelle's defence is now available to him again.

[18] On October 28, 2010 upon attending for the trial, the issue of Dineley is first raised. It was, coincidentally the same day the SCC agreed to hear the Dineley appeal.

[19] Defence counsel says the following to the Court:

"My Friend and I, I think, are at one in suggesting to the Court that this Riopelle matter should respectfully await the direction of the Supreme Court on the point of law."

[20] On that basis the Court agrees and the matter is adjourned to January 12, 2011. On that day it is adjourned to May 25, 2011 which defence labels "sensible". On May 25, 2011 it is said that Riopelle is simply being monitored until the SCC decision. The defence says he will speak to the matter on June 29, 2011. On June 29, 2011 the Court adjourns the matter to September 1, 2011. There is no objection by either party. On that day the Crown asks if anyone knows if Dineley has been argued yet. It is adjourned to September 29, 2011.

Crown's Position on Trial Date

[21] On September 29, 2011 there is the following exchange:

The Court: And Mr. Riopelle, I know, is waiting for the Supreme Court of Canada.

Ms. James: Well, I have some comments to make about that. We have been waiting for a year now and unless somebody knows what date the Court is going to issue its judgment, it's the Crown's position that we now need to schedule this for trial and have it proceed on its merits. If we held back every case pending appellant decisions on every matter...

The Court: This....

Ms. James: ....the system would simply shut down. Your Honour can't heart it...

The Court: I cannot hear it.

Ms. James: ...in any event. So my suggestion is why not put it to a trial scheduling court in Pembroke on a Friday because it is going to have to be one of those two judges that's going to hear it in any event?

The Court: Having said that it is not a Dineley issue completely.

Mr. Sullivan: Yes.

The Court: Absolutely, completely.

Ms. James: May well be Your Honour.

The court: It is.

Ms. James: But unfortunately this has been waiting since October 2010. We can't hold up cases in the system for years and years pending the releases of decisions.

The Court: Normally I would 100% agree with you, I am just concerned – Dineley is going to go, A or Z, it is going to go one way or the other. I will not say anything but I wish all of us, being the courts and the prosecutors and defense – the deal with the Dineley case is I wish we had some direction much sooner than this. It is even within, as you know, a very defined timeframe. It seems not too – I agree with Ms. James, it is not too efficient to be holding up something on an issue that deals with a specific scenario and a specific timeframe, but to set it for trial Ms. James and run it and then find out that Dineley comes down the other way. Who knows which way as you know?

Ms. James: Well, we set if for trial and run it and Dineley comes down that way, then I guess we're ahead of the game. I mean I appreciate what Your Honour is saying but I guess all I can say on....

The court: All right.

Ms. James: ...behalf of the Crown is that it is our position that the courts cannot wait in perpetuity for appellant courts to release decisions and that the matter has...

The Court: It should...

Ms. James: ...to be...

The Court: ...not be the case.

Ms. James: It should not be the case. We cannot compel them to do anything on our schedule. They do it on their schedule and that's understandable. We've been waiting I think a reasonable amount of time which is a year, coming on a year now...

The Court: Oh, I know.

Ms. James: ...and in my submission it should be set for a date so the matter can come to some conclusion. The worst thing that is going to happen by setting a date is we are going to get a trial date five or six months from now and we may be going around this block again, but if the decision is released within the next six months, then we have a court date and we're ready to go.

Waiver of Section 11(b)

[22] There is then this exchange:

Ms. James: Might I inquire or confirm for the record then that Mr. Dineley [sic] is resisting the setting of a trial date at this point.

The Court: I do not think it is Mr. Dineley.

Ms. James: Oh sorry.

The Court: Mr. Dineley is probably – I do not know....

Ms. James: Mr. Riopelle. Mr. Riopelle. So that we can deal clearly with the issue of 11(b). That it's not the court delay. It's not the Crown delay in setting this trial date, but Mr. Riopelle wishes to resist the setting of a trial date at this point because he prefers to wait for the decision of Dineley.

Mr. Sullivan: If my friend can guarantee to what the law is going to be so we can set a trial date, other than that I think it is totally unfair to suggest that waiting for the Supreme Court of Canada to tell us what law the defendant would face is somehow inappropriate. We are going to conduct a trial not knowing what the law is, we may as well not have trial. In my submission, there can't be a trial until we know what it would be about.

Ms. James: Well, if that was the case Your Honour, there will be no trials on any decisions that have been appealed to any appellant court and that doesn't make any sense. That's my position. If Mr. Riopelle is of the view that he wishes to maintain his 11(b) rights and have the matter that is currently pending before the court now heard in as soon as a practicable time to be heard, then my recommendations is it gets set for a date; he has his trial. If subsequent to that or sometime before that Dineley is to his benefit, we go through the appeal process again and it will be determinative. If it is not to his benefit, then I guess the Court's decision whenever it's made will be made, but we can't wait—we can't hold on to cases and then blame the delay with the court or blame the delay with the Crown and ultimately Mr. Riopelle gets the benefit of 11(b) at the end of the day. He can't have that cake and eat it too....

The Court: Okay.

Ms. James: ....in my submission.

The Court: I do not have to make that decision because I will not be....

Ms. James: Well, then I want my friend to put his decision on the record then on the 11(b) issue.

The Court: You are not waiving 11(b) is what I am reading.

Mr. Sullivan: Certainly not.

[23] Finally, before the matter is adjourned to October 5, 2011, the Crown states:

Ms. James: I am just trying Your Honour to make the record very clear that it is not the Crown or quite frankly this court or any court that is delaying Mr. Riopelle from having the trial on the information that's before the court now. I want the date set.

Continued Adjournments Pending Dineley Decision

[24] On October 5, 2011 the defence advises that the Dineley appeal will be heard on October 13, 2011. Riopelle is adjourned to November 16, 2011 to arrange for trial dates.

[25] On November 16, 2011, the following is said:

The Court: And Ms. James wanted me to set a trial date despite the fact that we have not heard from the Supreme Court of Canada, but we did find out that it has probably been heard by now. It was heard last month.

Mr. Sullivan: I think so, yes.

The Court: We actually called and found out, but Mr. Nicol it really makes little sense to me to set some trial date on this until we get a decision.

Mr. Nicol: Okay, I mean....

The Court: But it did not make sense to Ms. James. She was adamantly arguing that I set a trial date, but I think the Supreme Court of Canada decision on the issue is going to be important. I do not want to run a trial and find out we have to run another one.

Mr. Nicol: Well, my only....

The Court: We have already....

Mr. Nicol: ....concern....

The Court: ....run one.

Mr. Nicol: ....is as long as the defence doesn't come back in the future on an 11(b) issue, we are content to be put over then.....

[26] The defence when asked if there is a waiver of s.11(b) states that there is none.

[27] The accused is offered trial dates on March 12, 14 and 19 and the 19 is chosen by the defence who then adds, "But always subject to the direction we get or if we haven't received it then...."referring to the point that if there is no decision from the SCC that the trial of March 19, 2012 will have to be adjourned. The defence says:

Mr. Sullivan: Yes, thank you. The understanding being I think if the Court hasn't given us the judgment by that time, we'd probably want to extend the matter further because it probably wouldn't be fair to either side to get too close to actual trial date and find out what the new law or the old law might be.

[28] A status check was set for January 11, 2012 and then adjourned to February 8, 2012 at which point the accused says, "it is time to cancel it" referring to the March 19, 2012 trial date. The Crown agrees and the trial is cancelled and the matter is adjourned to February 22, 2012. Defence then suggests that the matter be adjourned to April 11, 2012 and from there to May 24, 2012 at which time the Court says, "no point in scheduling a trial until we get it" and it is then adjourned to August 13, 2012. On August 13, 2012 the Court, the Crown and the accused agree there is nothing they can do but to put it over again. It is adjourned to October 9, 2012 from which it is adjourned to December 10, 2012.

[29] By December 10, 2012 the decision is available and the matter is set for trial on March 13, 2013.

Fourth Time Period: December 10, 2012 to April 29, 2013

[30] On January 16, 2013 the March trial date is moved, at the accused's request, because transcripts for this s.11(b) application might not be ready. I note they were only ordered on January 13, 2013 and were ready February 22, 2013 but in any event the trial was re-scheduled for April 10, 2013 and April 29, 2013. On April 10, 2013 the s.11(b) application was heard.

Court's Findings

Waiver and Actions of the Accused

[31] From the Morin analysis, I will deal with the issue of waiver and actions of the accused together.

[32] In my view, although the accused was stating that he was not waiving s.11(b), his actions or conduct can only indicate that he was. He refused to set a trial until the SCC decided the issue in Dineley. He wanted, indeed, he insisted that no date be set until the law on the existence of an evidence to the contrary defence was settled. In my view, he should not have been allowed to take this position. Ms. James, for the Crown, on September 29, 2011 was correct to say that trials cannot be delayed until we have the final answer from the SCC because trial courts would become hopelessly backlogged. Her comments came 20 months after a date should have been set for the second trial which was January 28, 2010 when the matter came back from the Summary Conviction appeal. Just because neither the Court or for the most part the Crown did not force the issue further it does not make the accused's insistence that no date be set for trial anything but a waiver of the time period from October 28, 2010 to December 10, 2012. He asked for the delay. He wanted the delay. He received it. It cannot be said that in those circumstances there was no waiver.

[33] The Ontario Court of Appeal succinctly addressed this issue in R. v. Deavitt, 1991 O.J. 185, where they wrote, "We see no basis for complaint as to delay in trial arising from a defence request to await a judgment of another court."

[34] There is no merit to a complaint about delay for which one asked.

[35] As s. 11(b) does not apply to any appeal period it cannot apply to any appeal period for which the Applicant has, for all intents and purposes has joined by which I mean Dineley.

[36] I am not saying that the Applicant wanted the delay per se. He wanted to wait only until the Dineley decision was available. He would have been quite happy, I presume, if the SCC had decided the issue in 2010 when leave was filed and the trial of October 28, 2010 could have proceeded. It was unfortunate that it took two more years but it did. Mr. Riopelle could have had his trial at anytime but he chose to wait. That is either waiver or accused conduct which caused the delay or both.

Prejudice to the Accused

[37] It should also be noted that other than inferred prejudice, there is no evidence of any specific prejudice.

[38] Indeed the delay has actually worked to the Applicant's favour. A defence which was not available to him from November 2009 to December 2012 is now available again. As the offence date precedes the amendments to s. 258 C.C. he is free to bring an evidence to the contrary type defence. He has benefitted from the delay.

Conclusion

[39] While I agree with the defence that five years plus is simply too long for a simple Impaired/Over 80 summary conviction trial, I find that he is the author of his own misfortune. The Application is dismissed.

The Honourable Mr. Justice Robert G. Selkirk