Court File and Parties
Date: 2016-12-02
Court File No.: Brampton 15-4512
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Gallican Gasana
Before: Justice Paul F. Monahan
Reasons for Judgment on the s.11(b) Application
Heard on: November 2, 2016
Reasons for Judgment on the s.11(b) Application released on: December 2, 2016
Counsel:
G. Gill — counsel for the Crown
B. Starkman — counsel for the defendant Gallican Gasana
MONAHAN J.:
Introduction
[1] The defendant is charged with having operated a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is charged with over 80, contrary to s. 253(1)(b) of the Code. The offences are alleged to have taken place on April 5, 2015.
[2] The defendant brings this application to have this proceeding stayed on the basis that his right under s.11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") to be tried within a reasonable time has been violated.
[3] The s.11(b) application was originally scheduled to be heard on October 11, 2016. At the Crown's request, I granted an adjournment of the s.11(b) application because the Crown requested time to respond to the application and pointed out that it had not been brought on 30 days' notice as required by the Rules of the Court. The s.11(b) application was rescheduled at my direction for 9 AM on November 2, 2016 which was the first of three days scheduled for trial. As I indicated I would do prior to hearing the application, I deferred my decision on it and proceeded to hear the trial evidence.
[4] For the reasons set out herein, I am dismissing the s.11(b) application. I will be delivering separate reasons for judgment on the trial proper.
[5] The decision on this application will require a consideration of the new framework for s.11(b) applications laid down by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 which was released by the Supreme Court on July 8, 2016.
Facts
[6] The chronology of this case is as follows:
April 5, 2015 — This is the date of the alleged offence.
April 13, 2015 — The information charging the defendant with impaired driving and over 80 is sworn.
April 20, 2015 — The Crown Attorney's office writes to Peel Regional Police and seeks, among other things, the "DVD of accused in breath room".
April 22, 2015 — This is first court attendance. Initial disclosure is provided by the Crown.
May 13, 2015 — On this Court attendance, defence counsel indicates they are awaiting further disclosure including a DVD.
June 3, 2015 — On this Court attendance, the defence indicates they are still awaiting further disclosure including a DVD.
June 4, 2015 — On this date, defence counsel writes to the Crown requesting certain disclosure including "all DVD disclosure".
June 30, 2015 — The Crown writes to Peel Regional Police and requests certain items of disclosure including the "DVD of accused in breath room".
July 8, 2015 — On this Court attendance, the Crown file is not available and the Crown requests a one week adjournment. The Court is unable to accommodate until August 5.
July 22, 2015 — The Crown writes to defence counsel and indicates that the items noted in defence counsel's June 4, 2015 letter were requested on June 30, 2015.
August 5, 2015 — The Crown provides some additional disclosure which is apparently the 911 call but further disclosure is still outstanding.
September 2, 2015 — At this Court attendance, further disclosure is provided and it appears to be common ground that this included the breath room DVD video. The defence indicates that they will be reviewing disclosure and doing a Crown pretrial prior to the next attendance which is scheduled for October 7, 2015.
October 7, 2015 — Defence counsel appears and states that they will be holding a Crown pretrial the next day namely October 8 and requests an adjournment to November 18, 2015.
October 7, 2015 — It appears that a Crown pre-trial is held by phone on October 7, 2015 after the court attendance. Defence counsel writes to the Crown attorney and requests a number of items of disclosure namely the notes of Officer Clarkson (a second officer involved in the arrest); the memo books of the arresting officer and the breath technician or alternatively confirmation that no such notes were made (the principal notes of these officers had already been disclosed). Defence counsel also seeks, for the first time, documentation relating to the approved instrument used to take the breath samples including the so-called "COBRA" records.
October 26, 2015 — The Crown writes to defence counsel and tells them that the records relating to the approved instrument are available for pickup at the Crown Attorney's office at any time.
November 18, 2015 — There is a court attendance on this day. An agent for the defence counsel picks up the records referred to in the October 26, 2015 letter. A request is made by the defence for an adjournment to review disclosure. The presiding Justice of the Peace marks the matter peremptory to the defence and the matter is put over December 16, 2015.
December 16, 2015 — Defence counsel attends and states that they require a judicial pretrial in this matter. Defence counsel indicates that "I tried to set a trial date but it is set for three days so they asked for a JPT to be set". A pretrial date of January 28, 2016 is set.
January 28, 2016 — A JPT is held this day. Thereafter, defence counsel writes to the Crown and states that there are outstanding items previously requested as follows: the notes of Officer Clarkson; memo books of the arresting officer and the breath technician or alternatively confirmation that no such notes were made; and the booking/cells video.
January 29, 2016 — The Crown writes to defence counsel and indicates that the arresting officer and the breath technician do not have any further notes. The Crown also indicates that an extra set of Constable Clarkson's notes have been requested.
February 3, 2016 — At the Court attendance on this day, defence counsel asks the Crown if they have provided the booking/cells video. The Crown indicates that "there is a video. The notes from the judicial pretrial was that the only thing missing was Constable Clarkson's notes". It was the Crown's position that the notes were not necessary to set a trial date. Defence counsel requests that the matter go to February 24, 2016 to get instructions about setting a trial date. The Court indicates that it will be marked peremptory to the defence to set a date for trial.
February 24, 2016 — This is the next court attendance. The Crown does not have the file in court so it cannot proceed that day. The matter is put over to March 3, 2016.
March 3, 2016 — Following the practice in Brampton for trial time estimates, the trial of this matter is estimated to take three days. The practice in Brampton is to set multi-day trials on consecutive days. The defence offers a number of dates but the defence offers only two sets of three consecutive trial days namely June 28-30, 2016 and July 5-7, 2016 neither of which are available to the Crown or the Court. Dates when the Crown and Court are both available, but which the defence is not, include July 11, 12 and 13; July 25, 26 and 27; August 15, 16 and 17; and August 22, 23 and 24. While the defence has other dates after this time frame they have no availability for 3 days in a row at any time until November 2, 3 and 4 which become the agreed upon trial dates. A second stage pre-trial date of September 8, 2016 is also set.
September 8, 2016 — Defence counsel requests that they be removed from the record as they have not had contact with their client since June 2016. The request is agreed to by the Court.
September 22, 2016 — By this point in time, defence counsel is prepared to go back on the record and does so. The defence delivers a s.11(b) application which is received by the Crown the next day.
October 11, 2016 — The parties attend for the scheduled s.11(b) application. As the Court understands it, the s.11(b) application date of October 11 was obtained sometime in August. The Crown seeks an adjournment to respond to the application which is granted and the s.11(b) application is put over to 9 AM on the first day of trial, November 2, 2016. The Court indicates that it will be deferring a decision on the s.11(b) application until after the trial evidence is heard.
October 28, 2016 — The Crown provides the defence with the booking video.
November 2, 2016 — The s.11(b) application is heard. A ruling on the s.11(b) application is deferred. The trial (with accompanying s. 8 Charter application) is commenced on November 2 and completed November 3, 2016. Judgment on the trial proper is deferred pending a determination of the s.11(b) application. The trial took less time than was estimated because both counsel worked to streamline the issues and the tendering of evidence. In this regard, I note that the breath room video was not played (at the time of the pre-trial it was contemplated that it would be played); statements on the breath room video were not tendered obviating the need for a voluntariness voir dire and ruling; and after the Crown's case, the defence abandoned its section 8 Charter argument thereby shortening time for argument.
The New Jordan Framework
[7] In Jordan, the Supreme Court of Canada laid down a new s.11(b) framework involving a presumptive ceiling beyond which delay is presumed to be unreasonable. For trials in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of the trial. In the Superior Court, the presumptive ceiling is 30 months.
[8] I have previously reviewed Jordan in my own decision in R. v. Reynolds 2016 ONCJ 606. My judgment herein relies on my summary of the framework I set out in Reynolds which in turn relied on Jordan and the Ontario Court of Appeal's decision in R. v. Coulter 2016 ONCA 704. The particulars of the Jordan framework may be summarized as follows:
A trial court hearing an s.11(b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47).
From the total delay the court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82).
Defence delay has two components. The first is delay waived by the defence. The other is delay caused solely by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not (Jordan paras. 60-64).
If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81).
As indicated above, delay caused by discrete exceptional circumstances is to be deducted from the total delay to determine if the ceiling has been reached. The Crown and the justice system should attempt to mitigate if possible any delay resulting from a discrete exceptional circumstance. The Crown and the justice system need to prioritize cases delayed by unforeseen events. If that does not occur when it reasonably could have, then the entire period of delay occasioned by the discrete exceptional event may not be deducted from the total delay (Jordan para. 75).
Discrete exceptional circumstances may be an illness, an extradition proceeding or an unexpected event in the trial. The categories are not closed. Trial judges are to use their good sense and experience in determining what will constitute a discrete exceptional circumstance (Jordan paras. 69, 71 and 81).
Exceptional circumstances covers a second category other than discrete events: namely cases that are particularly complex. These are cases that due to the nature of the evidence or the issues require an inordinate amount of trial or preparation time such that the delay is justified (Jordan para. 77).
Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of these two factors, the stay application will fail (Jordan para. 82).
As concerns defence initiative constituting meaningful and sustained steps, the Court should consider what the defence could have done and what it did. It is a matter of substance rather than form. It is not enough to put on the record that the defence wanted an early trial date. Having said that, the defence must act reasonably and not perfectly (Jordan paras. 84-85).
As to whether the time took markedly longer than it should have, this will require a consideration of the reasonable time requirements of a case which derive from a variety of factors, including the complexity of the case, local considerations, whether the Crown took steps to expedite the proceedings and other factors (Jordan para. 87).
Stays below the ceiling should be granted only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 83).
Transitional Provisions and Considerations
[9] The new framework applies to cases already in the system. For cases that are above the ceiling, a transitional exceptional circumstance will apply when the Crown satisfies the Court that the time taken is justified, based on a reasonable reliance on the law as it previously existed. For example, prejudice and the seriousness of the offence factored in under the previous framework and these considerations may inform reliance on the previous state of the law (Jordan at para. 96).
[10] For cases that fall below the ceiling and are currently in the system, a stay may still be granted. The criteria of defence initiative and whether the time has taken markedly longer than reasonably required must be applied contextually and sensitive to the party's reliance on the previous date of the law. The defence does not need to demonstrate having taken the initiative to expedite matters for the period of delay before the decision in Jordan. It was not required under R. v. Morin, [1992] 1 S.C.R. 771. However, the Supreme Court observed that "in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required." The trial judge must also consider action or inaction by the accused that may be inconsistent with the desire for a timely trial (Jordan para. 99).
[11] The Supreme Court observed that in applying the framework to cases already in the system, courts should do so "contextually and flexibly." (Jordan at para. 105). As the Supreme Court observed in Jordan, "we rely on the good sense of trial judges to determine the reasonableness of delay in the circumstances of each case" (Jordan at para. 98). Further, as a general comment not specifically directed at transitional cases, the Court urged trial judges not to parse each day or month as was done under the previous legal regime but rather they should "step back from the minutiae and adopt a bird's-eye view of the case" (Jordan para. 91).
Law and Analysis
(i) Overall Delay: when does delay begin?
[12] The defence submits that applying the Jordan framework in this case results in 19 months less 1 day of overall delay (which is the April 5, 2015, the date of the arrest, to November 4, 2016, the anticipated end of the trial). In particular, the defence submits that the charge date is effectively when defendant was arrested not when the information was sworn eight days later. There is debate in the case law as to when the s.11(b) clock begins to run. It is usually understood to be from when the information is sworn. This issue was fully canvassed by my colleague Justice Band in R. v. Ashraff 2016 ONCJ 584 at paras. 49 to 54 wherein he reviewed the leading higher authorities and he concluded that the charge date is when the information is sworn. However, I accept that there may be circumstances when there is a significant delay between the arrest date and the swearing of the information which could work a significant unfairness to a defendant in a s.11(b) analysis and the earlier arrest date may potentially be used as the starting point in the s.11(b) analysis. This issue is discussed by my colleague Justice Schreck in R. v. Luoma, 2016 ONCJ 670 at paras 19 to 34 where the gap between the arrest date and the swearing of the information was two months. Given the relative proximity of the arrest date and the swearing of the information in this case, I will use the swearing of the information date as the starting point in the s.11(b) analysis. I note that even if I had used the arrest date, it would not have had any impact on my decision on this application.
[13] Accordingly, the overall delay in this case runs from the date the information was sworn on April 13, 2015 to the anticipated end of the trial on November 4, 2016 which is 18 months and 21 days.
(ii) Was there Defence Delay in this Case that needs to be deducted from Overall Delay?
[14] The Crown submits that more than three months needs to be deducted from the overall delay due to defence unavailability. In particular, the Crown points out that numerous three day trial times in July and August 2016 were offered by the Court and for which the Crown was available but the defence was not.
[15] The defence submits that there should be no deduction from the overall delay on this ground for two primary reasons. First, the defence submits that it was available on numerous other individual days although not three days in a row and that the practice of requiring three consecutive trial days in Brampton is unfair and ought not to work against a defendant in the Jordan analysis. Second, the defence submits that it sought the booking video by letters dated June 4, 2015, January 29, 2016 and October 11, 2016 and that it was not provided until the Friday before trial namely October 28, 2016. The defence submits that the spirit of Jordan requires a cooperative approach between the Crown and the defence and that in this case the Crown's failure to produce the booking video until the eve of trial shows an uncooperative approach and, as a result, the Jordan framework ought not to be applied against the defendant so as to deduct time because the Crown and the Court were available for an earlier trial date in July and August 2016. While the defence did not put the point precisely this way, it can be argued that the Crown was not actually ready for trial in July and August 2016 as evidenced by the fact that disclosure was still being made in October 2016 and that therefore the earlier trial date offered should not be used to calculate defence delay.
[16] I have considered the foregoing points and will give my views on each of them. First, Jordan is clear that when the Court and Crown are available but the defence is not, that is defence delay and must be deducted from the overall delay: Jordan paras. 60-64. The practice of the Brampton trial coordinator's office is to require that multi-day trial dates be set on consecutive days. In my view, this is a sensible and fair policy and approach. It is obvious that it would not make sense, as a matter of policy and practice, to schedule multi-day trials on single days with gaps between the days so as to convenience defence or Crown counsel. Witnesses, defendants, lawyers, judges and the public can reasonably expect that trials will be conducted on consecutive days so as to, among other reasons, convenience all interested persons in a given case and permit the parties to present their evidence and positions in a logical and coherent manner and to permit the Court to consider the case in that same coherent light. That is not to say that there will not be occasions when a trial does not complete and a further day or days are required at some point down the road to complete the matter. However, to deliberately follow a policy of organizing a trial with days, weeks or months between the various hearing dates would make no sense. I would add that the trial scheduling process in Brampton was developed in consultation with the Bench and Bar. I reject the defence argument that this policy is unfair and necessitates that Jordan not be applied against the defence when the Crown and Court were available on multiple proposed three-day trial dates but the defence was not.
[17] As concerns the defence's second argument namely that the booking video was not made available until October 28, this does not change the Jordan delay analysis in my view. It is not admirable that the Crown failed to make disclosure of the booking video until October 28. I accept the Crown's submission that the booking video is not standard disclosure and must be specifically requested. I note that, in my view, the booking video was not requested on the record until January 29, 2016 when this case had already been marked peremptory to the defence. In my view, the defence counsel's letter of June 4, 2015 referring to the requirement that "all DVD disclosure" be disclosed was ambiguous and did not clearly request the booking video. It is clear from the Crown's request to the Peel Police that the Crown understood the defence's request to refer to the breath room video. See the Crown's request to Peel Police of June 30, 2015 which asks for the breath room video only.
[18] The only time, prior to the setting of the trial date, that the booking video was ever expressly requested in writing or mentioned at a court attendance was January 29, 2016, almost ten months after the case started. The Crown should have responded to this request in a timely way. However, I note that there were numerous remedies available to the defence to obtain the booking video if the Crown failed to provide it. The defence could have scheduled a JPT or a Crown pre-trial at any time to require the delivery of the breath room video. There was a second stage pre-trial on September 8, 2016 and there is no evidence that the booking video was raised at this time. If an earlier trial date of sometime in July or August had been selected (as offered by the Court and as the Crown proposes to use in the Jordan analysis) there would have been a second stage pre-trial about one month in advance of that trial date and it could have been used to deal with outstanding production issues. Indeed, that is one of the reasons second stage pre-trials are held namely to ensure that there are no loose ends and that the case can proceed as scheduled. I note also that the defence could have followed up with a letter much sooner than it did (it did send a letter on October 11, 2016 again requesting the booking video). In any event, notwithstanding the late disclosure of the booking video on October 28, the defence did not seek an adjournment of the trial on November 2 due to non-disclosure.
[19] The defence also argued that the trial date was set based on a misunderstanding that the defence had already received the booking video. In particular it refers to the exchange in Court between the defence and Crown counsel on February 3, 2016. I reject this submission. The trial date was not set until March 3, 2016 and defence counsel knew, or should have known, that it did not have the booking video. In any event, the matter had been marked peremptory to the defence going back to November 2015. In these circumstances, the defence could not possibly insist on production of the booking video prior to the setting of the trial date. The law is clear that the defence can be called upon to set a trial date even when significant disclosure is outstanding: see R. v. Gandhi, 2016 ONSC 5612 at para. 34. I note that the defence never took the position in this case that it could not set the trial date without the booking video and it proceeded to set the date without it as, in my view, it was obligated to do on the facts of this case.
[20] In summary, Jordan makes it clear that defence delay occurs when the Crown and the Court are available and the defence is not. On the facts of this case, I am not prepared to find that defence delay starts from the first three day trial date block offered to the defence given that the defence offered two prior three day trial date blocks for which the Court and Crown were not available. See the discussion of the "first date offered" issue by Justice Band in Ashraf at paras. 61 to 72. Justice Band concluded, and I agree, that the practice of not necessarily using the first date offered recognized in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 when calculating delay against the defence survives under Jordan. In my view, the dates of July 25, 26 and 27, 2016 (the second three day block offered by the Court) should be used as the point after which the time was defence delay. I note in this regard that the defence had no three day blocks of dates after these dates up until the scheduled trial date of November 2. Accordingly, the period from July 25 to November 2, 2016 amounting to approximately 3 months and 8 days needs to be deducted from the overall delay as defence delay.
[21] In my view, there were some periods of time from April 13, 2015 to March 3, 2016 which might be said to be defence delay under Jordan but the Crown did not make that submission so I will not engage in that exercise under Jordan.
[22] Accordingly, from the overall delay of approximately 18 months and 21 days must be deducted 3 months and 8 days which results in a net delay of 15 months and 13 days.
(iii) Whether a Stay should Issue when the Overall Delay is below the Ceiling?
[23] This case is below the presumptive ceiling. Below the presumptive ceiling, a stay may still issue if the defence can establish two things: (1) that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of these two factors, the application will fail. Stays below the presumptive ceiling are to be rare and limited to clear cases. However, for transitional cases that fall below the ceiling, the criteria of defence initiative and whether the time has taken markedly longer than reasonably required must be applied contextually, flexibly and sensitive to the party's reliance on the previous state of the law.
[24] In this case, in order to determine whether the defence can establish that it took meaningful steps to expedite the case and whether the case took markedly longer than it should have, one must look, among other things, at the period of time from April 13, 2015 through to the setting of the trial date of March 3, 2016. This is a very lengthy period of time which elapsed prior to the setting of a trial date. This was a straightforward drinking and driving case and the disclosure in this case should have been substantially completed within 2 to 3 months. Selecting the date most favourable to the defence, I consider that disclosure should have been substantially complete by June 13, 2015. That is not to say that every last piece of disclosure should have been handed over by that time simply that substantial disclosure should have been completed by that date.
[25] It is my view that substantial disclosure was complete in this case by September 2, 2015 when the breath room video and other documents were provided.
[26] Between September 2, 2015 and the setting of the trial date on March 3, 2016, very little of substance occurred in this case other than a JPT which was held on January 29, 2016. The only further disclosure that was provided were the COBRA records (and related documents concerning the Intoxilyzer 8000 C) and confirmation that there were no notebooks containing further notes of the arresting officer and the breath technician (the actual notes of these persons having already been produced by no later than September 2, 2015). I note that there is a very good argument that the COBRA and related records are irrelevant and are not required to be produced by the Crown or the police: see R. v. Jackson (2015), 2015 ONCA 832, 128 O.R. (3d) 161 at paras 134 to 138. I accept that there are different views on the relevance of the COBRA records (see R. v. Singh, [2016] O.J. No. 2288) but, in my view, the absence of the COBRA records would not prevent the setting of a trial date. In addition, as discussed above, I am aware that even at the time of the setting of the trial date on March 3, 2016, the booking video had yet to be produced. It would also appear that the notes of Officer Clarkson, who was a secondary officer involved in the arrest had, also had not been produced (although there is some suggestion in the record that that had already been produced and a second set of these notes were sought). As far as I am concerned, the shortcomings in terms of disclosure that existed as of September 2, 2015 did not prevent the setting of a trial date and the fact that a trial date was set without most of them supports this observation.
[27] Accordingly, very little of substance occurred in this case between September 2, 2015 and March 3, 2016 other than a judicial pretrial. On September 2, 2015 the defence said they would be conducting a Crown pretrial prior to the next attendance on October 7, 2015 but they did not do so until after the Court attendance on October 7. The COBRA records were requested on October 7, 2015 and made available on October 26, 2015 but were not picked up until November 19, 2015. Another month was then taken by the defence to review the COBRA records. On February 3, 2016, the defence took three weeks just to get instructions on the setting of a trial date.
[28] As of November 18, 2015 the court had marked the matter as peremptory against the defence to set a judicial pretrial and trial date.
[29] As far as I am concerned, a judicial pretrial date could have and should have been sought on October 7, 2015 (approximately a month after substantial disclosure was complete) but instead one was not sought to be set until December 16, 2015.
[30] I recognize that the Jordan framework provides that, in the case of transitional cases, a defendant should not be held to a higher standard than was expected under the Morin framework. I recognize as well that it is the Crown's obligation to move a matter along. Having said that, under both Jordan and Morin, a defendant who seeks a s.11(b) dismissal for delay, can and should, as part of the analysis, have his or her own conduct scrutinized to determine what role he or she played in the overall delay. In this case, the Crown can and should be criticized for its failure to make proper production until September 2, 2015 and for its failure to provide the booking video when it was requested on January 29, 2016. Having said that, the positions taken by the defence for a number of the adjournments between September 2, 2015 and March 3, 2016 as outlined above make it clear to me that the defence was content with the pace of this litigation. Take, for example, the point mentioned above that the defence requested the COBRA records on October 7 and that they were made available to the defence on October 26 but the defence did not bother to pick them up for more than 3 weeks and then took another month to review them. The defendant in this case cannot meet even a relaxed Jordan standard for cases under the presumptive ceiling. In my view, a defendant in a transitional case under the presumptive ceiling should be able to point to some steps or actions from which it can be reasonably inferred that it was interested in moving this matter along. In my view, the record is otherwise and establishes that the defendant in this case was content with the pace of the litigation. This is not a criticism of defence counsel, it is simply an observation about how the defence was conducted during this time period.
[31] The second aspect of the new Jordan framework for cases under the presumptive ceiling is whether the case has taken markedly longer than it should have. That question, strictly speaking, does not arise in this case because I have found that the defence has not established the "meaningful steps" requirement. Having said that, I will consider the point in any event. In my view, this question is informed in a transitional case by a consideration of, among other things, what would have occurred under the Morin framework. This will be particularly so where, as here, most of the time the case has been outstanding has occurred when Morin, not Jordan, was the applicable law. I note that this was the approach of Justice Code in Gandhi, supra at para. 55 where he said that "the transitional approach in Jordan … draws on the old Morin framework" and he considered the application of Morin to that case including the question of prejudice.
[32] Under the Morin framework I would have found that there would be approximately just under 5 months of institutional delay from the time the trial date was set (March 3, 2016) through to the proposed trial dates of July 25, 26 and 27 (that were offered by the Court but not accepted by the defendant). There would be approximately 2.5 months of Crown delay from the time that substantial disclosure should have been provided which I have estimated at June 13, 2015 (giving the Crown two months to make disclosure) and the time that it was provided namely September 2, 2015. I would have treated the six-month period from September 2, 2015 to March 3, 2016 as mostly neutral time with some defence delay, save and except for ten days from February 24, 2016 to March 3, 2016, when the Crown could not locate the file for the February 24 court attendance, which would be Crown delay. Under the Morin analysis, anywhere from 2 to 4 weeks could have been deducted for trial preparation. Accordingly, under the Morin analysis, the institutional and Crown delay together would be approximately 7.5 months (this is 5 months of institutional delay plus 2.5 months Crown delay for slow disclosure plus 10 days Crown delay for misplacing the file less 2 weeks for preparation time). I recognize that Crown delay, because it can be avoided if the Crown acts diligently as it should, is worse than institutional delay. Let me say as well that a finding of 7.5 months of institutional delay and Crown delay in this case is generous to the defendant as the Court could have just as easily and reasonably said that disclosure in this case should have taken 3 months (rather than 2 months) and that 30 days (rather than 2 weeks) should have been deducted for trial preparation. If the Court had taken this approach, the institutional and Crown delay would be only 6 months.
[33] Accordingly, under Morin, the 7.5 months of institutional and Crown delay would be under the old guideline of 8 to 9 months for institutional delay for a case in Peel: see R. v. Rego, [2005] O.J. No. 4768 at para. 4. There is no evidence of any prejudice to the defendant in this case although there can be no doubt that having a criminal case hanging over one's head for a lengthy period of time would be stressful. The Crown was sloppy in this case in that disclosure at the front end was unreasonably slow and the Crown failed to be reasonably responsive to the request for the booking video. This is not a criticism of any specific person at the Crown. It is simply an observation of the Crown's conduct overall.
[34] Under Morin, the Court would have to consider the question of whether the delay was unreasonable, the interests of the accused, including any actual or inferred prejudice suffered, and society's interest in having the matter tried on the merits. Before staying the charges, the Court would have to be satisfied that the interests of the accused and society in a prompt trial outweighed the interests of society in bringing the accused to trial.
[35] Considering all the circumstances including society's interest in a trial on the merits, I would not have stayed this case under the Morin framework.
Summary and Conclusion
[36] I have calculated the overall delay in this case as 15 months and 13 days which is under the presumptive ceiling. The Supreme Court in Jordan has urged trial judges to get away from the minutiae and to adopt "a bird's eye view of the case". Stepping back and looking at this case in that manner, one sees a straightforward case with two major time periods that require consideration: (i) from April 5, 2015 when the defendant was arrested to March 3, 2016 when a trial date was set; and (ii) from March 3, 2016 to the scheduled trial dates of November 2, 3 and 4, 2016. For the reasons outlined above, the first time period involved some Crown delay, some defence delay and some neutral time. I have found that the defence was content with the pace of the litigation during this time period. The second time period resulted from more than three months of defence delay as the Court and the Crown were available to try the case on multiple three day blocks of time in July and August 2016 but the defence was not. In my view, whether one looks at this case from a "bird's eye view" or on a careful examination of each step in the case as I have done as set out above, the result is the same: a stay of these proceedings for unreasonable delay in getting the case to trial is not warranted.
[37] For all the foregoing reasons, the application to stay this proceeding for an alleged violation of s.11(b) is dismissed.
Released: December 2, 2016
Justice Paul F. Monahan