Court File and Parties

Ontario Court of Justice

Date: 2016-08-30

Court File No.: Central East - Newmarket 15-05130

Between:

Her Majesty the Queen

— and —

Oluwaseyi Oyeniyi

Before: Justice P.N. Bourque

Ruling on Charter Application

Released on: August 30, 2016

Counsel:

• M. Ventola, counsel for the Crown
• K. Manitus, counsel for the defendant Oluwaseyi Oyeniyi

BOURQUE J.:

Overview

[1] The Defendant/Applicant is charged that on June 22, 2015, he did commit the offence of drive while impaired and driving with excess alcohol.

Trial within a reasonable time – 11(b) Charter of Rights and Freedoms

[2] The Defendant/Applicant makes an application pursuant to Section 11(b) of the Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time" has been infringed. He further asks that if I find that such an infringement has occurred then, pursuant to the provisions of Section 24(1) of the Charter, that the only remedy which is "just and appropriate under the circumstances" is a judicial stay of the charges against him.

The Onus

[3] Previous to the decision in R. v. Jordan, the onus in these applications was upon the applicant (defendant). Under the new law, the onus is to be determined after determining whether the length of time as calculated according to R. v. Jordan is under or over 18 months. The total delay in this case does not exceed 18 months. The defence bears the onus of establishing that it took meaningful steps that demonstrate a sustained effort to expedite proceedings and the case took markedly longer than it reasonably should have.

Relevant time periods and actions which impact upon the issue of delay

Date of Offence: June 22, 2015

Date of Charge: July 14, 2015

1st court appearance: July 14, 2015

• Defendant attends without counsel and requests adjournment to July 21, 2015 to obtain counsel. Disclosure provided.

2nd court appearance: July 21, 2015

• Counsel attends with a designation and requests adjournment to August 4, 2015 for holding a Crown pre-trial.

3rd court appearance: August 4, 2015

• Counsel attends, receives further disclosure and asks for a two-week adjournment to review disclosure. Adjourned to August 18, 2015.

4th court appearance: August 18, 2015

• Counsel attends, states they have further disclosure and seeks a further 3 week adjournment to review and "get instructions from client." Adjourned to September 8, 2015.

5th court appearance: September 8, 2015

• Agent for counsel attends and gets further disclosure and seeks adjournment to September 16, 2015.

6th court appearance: September 16, 2015

• Counsel appears and indicates that "counsel is still in the process of reviewing the disclosure and considering the trial issues and is asking for an adjournment to September 24th to conduct a Crown pre-trial."

7th court appearance: September 24, 2015

• Set trial date for March 22, 2016 – one day – no Charter applications or voir dire.

1st trial date: March 22, 2016

• Trial commences at 3:00 p.m. – adjourned to May 9, 2016 to continue trial.

2nd trial date: May 9, 2016

• Trial did not commence due to unavailability of a witness – adjourned to August 22, 2016 to continue trial – court offered date of June 23, 2016 available to defence but not to Crown.

3rd trial date: August 22, 2016

• Final date of trial.

Total time from charge to trial completion: From the laying of the charge (July 14, 2015) to the contemplated end of the trial (August 22, 2016) is a period of 13 months and 8 days.

Legal Framework

[4] Before the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 237, the rubric to be followed was set out in the Supreme Court of Canada decision of R. v. Morin (1992), 71 C.C.C. (3d) 1, and a plethora of decisions spanning the next 24 years.

[5] In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:

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.

[6] In R. v. Jordan, the court laid out a new set of principles to be applied to the 11(b) analysis. As I understand it, the principles can be summarized as follows:

At the heart of this new framework is a presumptive ceiling beyond which delay - from the charge to the actual or anticipated end of trial - is presumed to be unreasonable, unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court ... delay attributable to or waived by the defence does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay will follow. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied.

Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

If the exceptional circumstance relates to a discrete event (such as, for example, an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case's complexity, the delay is reasonable and no further analysis is required.

An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown's control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

Below the presumptive ceiling, however, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases.

As to the first factor, while the defence might not be able to resolve the Crown's or the trial court's challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.

Turning to the second factor, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. These requirements derive from a variety of factors, including the complexity of the case and local considerations. Determining the time the case reasonably should have taken is not a matter of precise calculation, as has been the practice under the Morin framework. Reasonable time requirements of the case will increase proportionally to a case's complexity, and trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

Transitional Provisions

For cases currently in the system, a contextual application of the new framework is required to avoid repeating the post-Askov situation, where tens of thousands of charges were stayed as a result of the abrupt change in the law. Therefore, for those cases, the new framework applies, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice.

The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties' reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. Further, if the delay was occasioned by an institutional delay that was, before this decision was released, reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system. Given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.

Two elements which had great importance in the Morin analysis have little or no relevance to the new rubric. As stated in R. v. Jordan "…although prejudice will no longer play an explicit role in the 11(b) analysis, it informs the setting of the presumptive ceiling…once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one." Where the Crown seeks to overcome the presumptive ceiling by showing exceptional circumstances, "the seriousness or gravity of the offence cannot be relied on...".

[7] Defence counsel in this matter urges upon me that prejudice is still a relevant consideration in the transitional phase. Unfortunately, I don't think that Jordan stands for that proposition. The general language in Jordan seems to dismiss prejudice as a relevant consideration. It can only be used in the transition in considering the actions of the parties as they relate to the Jordan considerations. It does not simply import the R. v. Morin issue of prejudice into the transition phase. As the new rubric speaks of making the defence be a participant in delay reduction and not just an observer, I should look at whether (in response to the prejudice that her client was bearing) the defence took positive steps to move the matter forward. Even if I am incorrect and prejudice is implicitly still a part of the transition phase considerations, I do not find the prejudice here to be of great weight in this case. The Defendant may face deportation if he is convicted. That prejudice flows from the charge and not from any delay. The evidence was completed on the third day of trial. That is some hardship but, as one delay was unavoidable (witness issues), it does not loom large.

Analysis

[8] As we are within the 18 month period, I must assess only two factors:

(i) has the defendant taken meaningful steps that demonstrate a sustained effort to expedite the proceedings; and

(ii) has the case taken markedly longer than it reasonable should?

[9] As we are in transition, I must apply these requirements "contextually, sensitive to the parties' reliance on the previous state of the law." Therefore, the defence need not demonstrate that is has taken the initiative to expedite matters for the period of delay preceding this decision, since defence initiative was not expressly required by the Morin framework. Only in close cases would evidence of defence initiative during that time assist the defence in showing that the delay markedly exceeds what was reasonably required.

[10] The efforts of the defence in this matter do not show any consistent efforts to expedite the matter. That is to be expected in the pre-Jordan world. Such actions or lack of action will not, in the transition period, be fatal to the defence application.

[11] We are left with an analysis as to whether the case "took markedly longer than it reasonably should have."

[12] In making this assessment, I believe that Jordan is not concerned with the minutiae of the various adjournments and who may be responsible. We trial judges have been instructed to not "quibble over rationalizations for vast periods of pre-trial delay." Doing so leads to "limitless variations in permissible delay." This judge is glad that the Supreme Court has realized that "…the minute accounting required (under the Morin guidelines) might fairly be considered the bane of every trial judge's existence."

[13] This was a case of drinking and driving, which has resulted in the usual two charges. In this jurisdiction it is rare that such cases are completed in one day, unless the defence admits large parts of the Crown's case.

[14] The case is quite often not just about the offence itself, but is concerned with the investigation of the case and the various times from stopping to release. It requires the examination of all the various places that Charter rights may have been infringed, and the complex web of requirements contained in the legislation that must be proven to found a conviction.

[15] It usually requires the testimony of one or two officers at the scene (and often one civilian witness), and the breath technician. With the advent of in-car and in-station videos, these examinations and cross-examinations have been increased, as well as the amount of disclosure required. Police notes become the source of volumes of cross-examination.

[16] Being routine does not equate with simplicity. Such complexity brings with it the need to reserve and prepare written reasons, which leads to more delay.

[17] As I look at the record of these proceedings, there are a variety of adjournments for a variety of reasons. Some are to get more disclosure, some are to get instructions. Without going into a minute analysis of each adjournment, I find them to be overall somewhat typical of how these cases proceed. The defence wishes to have all disclosure before proceeding, the Crown responds in a timely manner to requests and disclosure is made. With regard to the adjournments, the case did not proceed until late in the first day. The case was then adjourned for a circumstance not within the Crown's control (although they could have given advance notice to the defence) and the day ultimately agreed upon was not unreasonable.

[18] I point out that I do not feel that the concept of "markedly longer than it should have" is equated with "as soon as is practicable." Just because this case could (in hindsight) have been tried earlier, does not make it "markedly longer than it should have."

[19] In this case, the delay from the setting of the trial date to the May date was just about 8 months. In this regard we are to consider the overall institutional delay that was acceptable under the previous "Morin" regime. While judges disagree about their approach to the amount of delay acceptable (or not) in the pre-Jordan regime, I do not find that 8 months of institutional delay offensive under the Morin guidelines.

[20] I note the recent decision of Feldman J. in R. v. Kopalasingam 2016 ONCJ 486. He appears to embark upon a more complete Morin analysis in the transition phase, and includes analysis of intake and other periods. Even if I applied such a framework in this case, the intake period (2 months) plus readiness for trial and delays due to defence requests (1-2 months) would still bring the total delay to about 10 months, which would still be acceptable.

Conclusion

[21] Keeping in mind that in this jurisdiction a total period (without any deductions) from charge to trial of 12 to 15 months is not unusual, and keeping in mind that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system. This case took a total of just over 13 months to reach trial. Under the previous R. v. Morin analysis (with deductions for intake and preparation for trial) the institutional and Crown delay is about 10 months. I find that this case did not take markedly longer than it should have, and thus the application is dismissed.

Released: August 30, 2016

Signed: "Justice P.N. Bourque"