Court File and Parties

Ontario Court of Justice

Court File No.: Sault Ste Marie 0131-998-14-2914

Between:

Her Majesty the Queen

— and —

Erik John Sachro

Before: Justice Kwolek

Heard on: September 1, 2016

Reasons for Judgment released on: September 20, 2016

Counsel

Heidi Mitchell — counsel for Crown

Eric McCooeye — for the defendant Erik John Sachro

KWOLEK J.:

Summary

[1] This is an application brought by the defence, requesting a stay of proceedings due to a breach of the accused's s. 11(b) Charter rights.

Factual Background

[2] The accused was charged in information number 2914, with offences that allegedly occurred on or about the 14th day of December 2014. The substantive offences consisted of an assault charge together with a charge of unlawful confinement against the same victim. In addition, the accused was charged with three breaches of a probation order dated the 8th day of September 2014 for communicating with the victim; molesting harassing or physically interfering with the victim; and failing to keep the peace and be of good behavior.

[3] The accused was released on his own recognizance with the first court date set for January 14, 2015. In total, the accused or his counsel have appeared, by my count, on 28 separate occasions in court in answer to these charges.

[4] There have been a total of four dates set for trial. The first trial date was November 25, 2015. Although this matter was scheduled to take one full day for trial, other matters proceeded in advance of this trial matter on November 25, 2015. Counsel for the accused, together with Crown counsel, agreed that the trial should not be commenced on this day because there would be insufficient time to complete the evidence of the one principal witness. Counsel agreed that it would not be appropriate to split the case and suggested that a new trial date be set without commencing the trial.

[5] A second trial date was set for March 16, 2016, being the first trial date offered by the court. The trial was not reached on this date because another trial proceeded for an individual who was in custody and the Crown elected to proceed with the in custody matter rather than the trial of this accused.

[6] A third trial date was set for September 1, 2016. Other dates were offered as early as July but were not available to counsel. An application to adjourn the trial was brought by the Crown on or about the July 11, 2016 as the victim and primary Crown witness was not available on the September 1, 2016 date as she had a scheduled caesarean section near the end of August. As a result, a new trial date was set for November 10, 2016, being the first date offered by the court almost 23 months after the date that the charges were laid.

Legal Analysis

[7] The recent Supreme Court of Canada decision of R. v. Jordan, 2016 SCC 27 provided the court with further direction in dealing with cases that have taken a significant period of time to be completed and where s. 11(b) Charter applications have been brought to request a stay of the court proceedings.

Section 11(b) of the Canadian Charter of Rights and Freedoms

Section 11(b) of the Canadian Charter of Rights and Freedoms reads as follows:

11. Any person charged with an offence has the right

(b) to be tried within a reasonable time;

[8] The seminal case in dealing with s. 11(b) Charter applications is the Supreme Court of Canada decision of R. v. Askov, [1990] 2 S.C.R. 1199. Following that case, thousands of criminal cases were stayed or dismissed due to the inability of the courts to comply with the direction of the Supreme Court of Canada to have trials completed within a reasonable period of time in accordance s. 11(b) of the Charter. R. v. Askov, supra, was further refined and explained by the Supreme Court of Canada decision in R. v. Morin, [1992] 1 S.C.R. 771.

[9] Morin, supra, required the court to embark on an analysis to determine what were appropriate intake, processing, and inherent delays which were neutral and not included in the calculation of unreasonable delay and what periods of time would be considered as systemic in nature and what delays would be attributable to the Crown and defence. The timeframe to be used in determining whether or not the delay was excessive was to be calculated from the date the parties were ready for trial until the trial was completed. The timeframes seemed to be subject to judicial flexibility and discretion of the courts. Justice Sopinka at paragraph 31, in Morin, supra, in discussing what would constitute unreasonable delay in violation of section 11(b) of the Charter, stated as follows:

The general approach to a determination as to whether the 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 either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

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.

These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32.

[10] Morin essentially held that a delay greater than eight to ten months in the Provincial Court was an unreasonable delay, once various periods of time were deducted as described above. Once a delay was found to exceed what was reasonable then the court could grant a stay. The analysis was seen by many jurists and academics as too complex and leading to more uncertainty as to when stays should or should not be granted. It appears that the majority decision in Jordan, supra, has now overturned and overruled the test in Morin, supra.

[11] The majority decision in Jordan, supra, was a divided court split on a four – three, basis, with a strong dissent, penned by Justice Cromwell, arguing for the retention of the Morin, supra, test.

[12] The majority in Jordan, supra, set out a new framework and a ceiling beyond which delay was presumptively unreasonable. The presumptive ceiling for matters that proceeded to trial in the Provincial Court was set at 18 months while those that proceeded in the Superior Court was held to be 30 months. In circumstances where the total delay from the charge to the actual or anticipated end of trial (minus defence delay and discrete unanticipated events) exceeded the ceiling, the delay would be presumptively unreasonable. To rebut this presumption and avoid the stay, the Crown was required to establish the presence of exceptional circumstances. If it could not establish exceptional circumstances, delay would be unreasonable and a stay would generally follow.

[13] Jordan, supra, was released on July 8, 2016. For cases that had been commenced prior to July 8, 2016, the framework was to be applied flexibly and contextually. An exception would apply to this ceiling when the Crown satisfied the court that the time the case had taken was justified based on the parties' reasonable reliance on the law as it previously existed.

Application of the Jordan Framework

[14] Counsel for the Crown and the defence have provided me with various court decisions for my consideration. Defence counsel provided me with a decision of my fellow judge Justice Louise Botham in R. v. Azad Edan, 2016 ONCJ 493. In that case, the accused was charged with "over 80" with the information sworn, it appears at the same time as this case on December 15, 2014. In Edan, supra, a trial date was set on May 4, 2015 for December 9, 2015. The trial did not proceed on that day due to some late disclosure issues. Ultimately, a trial date was set for June 22, 2016, at which time a s. 11(b) Charter application was also argued in part. Some evidence was lead of the accused suffering anxiety and depression as a result of the delay. The trial proper and Charter evidence and argument were completed on July 18, 2016. In that case the judge found a total delay of 19 months and 24 days and granted a stay.

[15] In addition, counsel for the defence pointed to R. v. Williamson, 2016 SCC 28, a case of the Supreme Court of Canada that was released contemporaneously with R. v Jordan, supra, on July 8, 2016. In Williamson, supra, the same divided court considered the issue of a s. 11(b) Charter application for unreasonable delay. The majority of the Supreme Court found that the 35.5 month delay less, 1.5 months it determined as defence delay, for a total delay of 34 months, between the charges and the end of the trial in Superior Court was excessive delay. The charges in that case dealt with historical sexual offences against a minor. The Supreme Court found that the delay was unreasonable, applying either the pre-Jordan test or the new framework, and upheld the Ontario Court of Appeal decision which had ordered a stay of the proceedings.

[16] The Crown cited the case of R. v. Curry, Lawrence, 2016 BCSC 1435, a decision of Justice Holmes of the British Columbia Supreme Court. In that case, Justice Holmes found Mr. Curry guilty of one charge of possession of crack cocaine for the purpose of trafficking, and guilty of two charges of simple possession of, respectively, methamphetamine and heroin. The accused had been charged on January 10, 2013. A stay had been imposed in court on April 23, 2013 on those charges in an effort to "stop the clock ticking", for the purposes of s. 11(b) of the Charter while the investigation continued. On August 13, 2013, a new information was sworn and the proceedings recommenced. The proceedings are relatively convoluted, with the co-accused failing to attend on the date set for a preliminary inquiry and with further issues arising when the matter was to commence for a five day trial including an application by the defence for an order requiring the Crown to disclose materials relating to ten confidential informants. After declining to deduct the period of stay from the overall delay the judge found a delay of 42 months. The judge found that only two months was to be deducted as based on defence delay. In addition, the judge found two discrete events of 8.5 months leading to a further deduction. The judge found the overall delay to be 31.5 months using the Jordan test. In reviewing Jordan and Morin, the judge concluded that a substantial part of the delay in his case would have been viewed as neutral under the Morin analysis and concluded:

"taking into account what I view as reasonable reliance on the state of the law at the time, I cannot view the delay in concluding Mr. Curry's trial, as unreasonable."

[17] As a result, it appears on the basis of the transitional provisions as set out in Jordan and the parties reliance on the earlier Morin test, the trial judge in Curry, Lawrence, supra, denied the applicant's application for a stay. I do not believe the analysis is overly helpful in this case as I have found that the delay in this case exceeded the time period set out in Morin as well as Jordan.

[18] The Crown also provided me a decision of a fellow judge from our jurisdiction, Justice Villeneuve in an unreported decision dated August 25, 2016, of R. v. Vallee. In that case, the charge involved a count of "over 80" which apparently related to a charge from August 16, 2014. Defence counsel argued that once delay exceeded 18 months, then the onus shifted to the Crown to show why the stay should not be granted. In Vallee, supra, the motion was brought prior to trial without the benefit of the transcripts of the various adjournments in the proceedings. Justice Villeneuve decided that he would not make a decision on the s. 11(b) applications without a proper evidentiary foundation which required his consideration of the transcript of the proceedings. It was only through consideration of those transcripts that he would be able to determine whether there were any discrete events or any proof of delay attributable to the accused that could result in a deduction from the total time period. Without such information, the trial judge was unable to determine the appropriate period of delay as set out in Jordan, supra.

[19] Transcripts have been made available in this case and we do not have the same evidentiary problem as the judge had in Vallee. I am satisfied that there is a proper evidentiary framework before me to allow me to rule on the s. 11(b) application.

Analysis of Delay in This Case

[20] Based on the new test in Jordan, supra, I have had an opportunity to review the many transcripts of the various court attendances. Both the Crown and defence counsel prepared schedules setting out the various court appearances. The Crown sought to attribute a total of 63 days to the defence for delay. In addition, the Crown sought a deduction of the time from September 1, 2016 to November 10, 2016, being an adjournment from the third trial date to the forth trial date. The Crown argues that there should be a deduction of the entire period of the delay based on exceptional circumstances and a discrete event, namely the pregnancy and scheduled caesarean section of the complainant.

[21] If I would deduct the entire time requested of 133 days by the Crown that would still, based on my calculations, leave a delay of 563 days or a period of time of just over 18 months, which would still be above the presumptive acceptable standard, as set in Jordan, supra.

[22] In addition, based on the previous Morin standard, the time periods necessary to set new trial dates when the case was not reached on previous occasions due to insufficient time, would not be inherent or neutral but would be properly attributable as institutional delay. Therefore, the court finds that even applying the test set out in Morin, the time period after July 16, 2015, when the first trial date was set, until the ultimate and final trial date of November 10, 2016 would have been attributable to the Crown. Therefore, the court finds that the total delay was well past the Morin standard of eight to ten months. In this case, the defence wished to move matters forward and did not appear to wish to delay the proceedings.

[23] My calculations based on delay, differ somewhat from the Crown's calculations. I would attribute, as defence delay, a period of three weeks from May 6, 2015, to May 27, 2015, when defence counsel was unable to meet with his client because of defence counsel's own unavailability. Defence counsel indicated that this delay was not a delay resulting from the actions of his own client per se, but due to his own lack of availability as counsel to meet with his client. Notwithstanding those comments I am prepared to deduct that period of time from any period of delay. The other periods of time alleged by the Crown to allow counsel to meet with his client, to review some new disclosure, to review the results of a non-judicial pre-trial with his client, all seem reasonable. I would suggest that these latter requests for adjournments would not properly be seen under the new Jordan standard as delays attributable to the defence that should be deducted from the overall period of delay. The overall period up to June 2015, when the first trial date was set, seemed to be a reasonable period of time to complete preliminary matters.

[24] The issue of what period of time should be attributable to the "discrete event" of the scheduled caesarean section of the complainant also deserves some further scrutiny. In the circumstances of this case, when the trial date was set in March 2016 for September 1, 2016 it was largely the lack of availability of the Crown on dates that were provided by the court, (including a date as early as July 14, 2016) that the case was unable to proceed earlier. The lack of availability resulted in the setting of a trial date to a date that was later found to be almost exactly the date of its principal witness' caesarean section which resulted in a further delay in this matter being set for trial. The court would have expected, when a trial had not been reached on three prior occasions, none of which occurred as a result of the actions of the accused or his counsel, there would have been a concerted effort made to accommodate a trial as soon as possible. The first day offered by the court to complete this matter was not until almost four months from the setting of the trial date, and 70 days beyond the existing trial date of September 1, 2016. I would attribute an additional 30 days as being an appropriate deduction for this discrete event rather than the entire period of the delay.

[25] The Supreme Court of Canada spoke about the context of complacency that had crept back into the court system that allowed delay to be accepted and tolerated until once again timelines were extended to an unacceptable level. In our jurisdiction, due in part to the limited number of judges available and the number of courts that have to be serviced throughout the jurisdiction, trial weeks are not scheduled to complete matters. Instead more than one day of trial time is generally allocated for every sitting judicial day. Such scheduling has been largely successful, as often trial matters collapse on the date of trial due to last-minute negotiations, witness non-availability or for various other factors. Often then, even though more than a day of trial time is scheduled for any particular court day, outstanding matters are usually resolved on that particular day. When, as in this case, matters scheduled for trial actually proceed to trial, all matters cannot be completed in time and there must be an adjournment of one or more of the matters scheduled for trial. In addition, trial matters often proceed after guilty pleas are taken, whether as scheduled, or coming from Bail Court, causing a further reduction in the time available to complete trials.

[26] Greater priority should have been given to these charges which were at risk for being stayed due to delay, over other matters where the delay may have been minimal. Where the witnesses are present and the matter is set to proceed to trial, there is no need for a further period of delay of two, three, four months or even longer to set a new date for trial. Cases at risk for excessive delay should take priority over other non-in-custody matters. The first date offered on December 3, 2015 was March 16, 2016 which was accepted by the Crown and defence counsel and was approximately three and a half months away. Similarly on March 24, 2016, the first trial date provided was ten days short of four months away. Due largely to Crown witness unavailability during the summer months, the next trial date accepted was over five months away. Similarly, on July 18, 2016 when the fourth trial date was now required to be set, the first trial date proposed by the court, and accepted by the parties, was almost four months away.

[27] This lack of providing sufficient judicial resources, or prioritizing resources to deal with a matter that was now set for the fourth time for trial, resulted in excessive overall delay.

[28] Both the Crown and defence admitted to prejudice that arises when there is a delay in criminal proceedings, especially in cases where credibility is in issue. Witnesses' recollection suffers with the passage of time; additional expense is caused for both the Crown and defence by requiring additional court attendances; court proceedings are stressful for both defence and Crown witnesses, who in this case, have already attended on two occasions ready to proceed to trial, only to find that their matter will not proceed.

[29] We are in a jurisdiction that has had few successful applications for s. 11(b) Charter applications for stays as a result of delay. The system has worked reasonably well. Even in a case such as the current one, where a total of four different trial dates were set, the net effect of delay was, admittedly, only marginally over the presumptively unreasonable delay as set by the Supreme Court of Canada. However, the court cannot afford to be complacent but must ensure that trials proceed in a timely fashion as mandated by the Charter.

Decision

[30] As a case that was within the "transitional period" since Jordan, supra, was released, and applying the Jordan framework, flexibly and contextually, given:

1. that the total period of delay, even taking the Crown's case at its highest, exceeded the presumptive period of delay of 18 months;

2. that I have calculated the appropriate deductions for defence delay to be 21 days and for the discrete event relating to the lack of availability of the witness to be a further 30 days; that would result in a total delay in excess of 20 months;

3. that actual prejudice has occurred based on the case not proceeding on the first two dates set for trial, and the final date set for trial, being the fourth trial date, on November 10, 2016, almost 23 months after the charges were laid;

4. this case was a relatively straightforward prosecution;

5. that even based on the previous Morin standard, the delay was excessive;

6. there could have been procedures in place giving greater priority to this case once it had been adjourned;

7. that the Crown was unable to prove exceptional circumstances which were reasonably unforeseen or reasonably unavoidable to justify the delay in this case;

[31] I am satisfied that there has been a breach of Erik Sachro's s. 11(b) Charter rights, and I direct that the proceedings against him be stayed pursuant to s. 24(1) of the Charter of Rights and Freedoms.

Released: September 20, 2016

Signed: "Justice Kwolek"