Court File and Parties
Date: 2016-12-09
Court File No.: Brampton 15-10839
Ontario Court of Justice
Between:
Her Majesty the Queen
- and –
Andrew Stanley and Dilancan Unutkan
Before: Justice P.A. Schreck
Heard on: November 7, 2016
Reasons for Judgment
Counsel:
- R. Johnston – counsel for the Crown
- J. Christie – counsel for Andrew Stanley
- A. Edgar – counsel for Dilancan Unutkan
SCHRECK J.:
[1] Overview and Application
[1] Andrew Stanley and Dilancan Unutkan are charged with a number of serious offences under the Controlled Drugs and Substances Act ("CDSA") and have elected to be tried in the Ontario Court of Justice. Their trial is scheduled to take place on January 9 to 13, 2017, about 29 months after they were charged. They allege that their s.11(b) Charter right to a trial within a reasonable time has been infringed as the delay is well above the 18-month ceiling established in R. v. Jordan, 2016 SCC 27. The Crown submits that much of the delay is attributable to the defence and that once these periods are subtracted, that overall delay is slightly below the 18-month ceiling, or alternatively that this was an exceptional case.
[2] For the reasons that follow, the application is granted. The delay in this case was primarily the result of the Crown's failure to fulfill its disclosure obligations in anything even approaching a timely fashion. In my view, this case exemplifies the "culture of complacency" condemned in Jordan.
I. HISTORY OF THE PROCEEDINGS
A. Arrest to Initial Disclosure
[3] The applicants were arrested together with an individual named Jeffrey Padullo-Mendes on August 18, 2014 and charged with several counts of possessing various controlled substances for the purpose of trafficking, including heroin, methamphetamine, MDMA, marijuana, Ketamine and Ecstasy. The total value of the seized drugs is alleged to be approximately $500,000.
[4] At the applicants' first court appearance on September 18, 2014, a student-at-law appeared and advised the Court that counsel had not yet been retained but that disclosure had been requested. Crown counsel suggested that the matter be adjourned for three weeks so that disclosure could be provided.
[5] At the next appearance on October 10, 2014, the Court was advised that Mr. Stanley had retained John Christie, Mr. Padullo-Mendes had retained Rob MacDonald and it was anticipated that Ms. Unutkan would retain Andrew Edgar. The only disclosure that was available was a synopsis. The matter was adjourned to October 24, 2014. On that date, Crown counsel advised the Court that the police had provided his office with disclosure which was in the process of being reviewed and he expected that it would be provided to counsel before the next return date, November 21, 2014.
[6] On November 21, 2014, Crown counsel advised the Court that the disclosure had been vetted but that Crown counsel Robert Johnston had to speak to the officer in charge of the investigation before it would be provided to defence counsel. She requested a week for this to be done. On November 28, 2014, Crown counsel advised the Court that Mr. Johnston was working on the disclosure with the police. He asked that the matter return in one or two weeks and that Mr. Johnston "may be" able to provide disclosure by then "or at the very least provide a meaningful target date when that material will be available." The matter was adjourned to December 12, 2014, but disclosure was not available on that date and the matter was adjourned to December 19, 2014.
[7] Some initial disclosure was provided on December 19, 2014 and defence counsel requested that the matter return on January 16, 2015.
[8] On January 16, 2015, defence counsel advised the Court that they were still awaiting disclosure of the Information to Obtain the search warrant ("ITO"). Crown counsel stated that he did not have the ITO and suggested that counsel contact Mr. Johnston. At the next appearance on February 20, 2015, some additional disclosure was provided but not the ITO. The matter was adjourned to March 13, 2015. On that date, Crown counsel advised that the ITO needed to be vetted but he could not say whether that had been done. He advised the Court that the Crown would have it ready by March 27, 2015.
[9] The Application Record does not contain a transcript for March 27, 2015, so it is unclear what transpired on that date. The ITO was provided to defence counsel on April 17, 2015.
B. Scheduling the First Judicial Pre-Trial
[10] When the ITO was provided on April 17, 2015, Crown counsel suggested setting a judicial pre-trial ("JPT"). Mr. Edgar, who appeared on behalf of all counsel, requested that the matter return on May 8, 2015 so that he could obtain dates from other counsel in order to schedule a JPT. On that date, Mr. Edgar advised that the only date that all counsel were available for a JPT was July 31, 2015. Apparently, the Federal Crown only conducted JPTs on Wednesdays and Fridays. Crown counsel advised the Court that a JPT could be scheduled for a day other than a Wednesday or a Friday in "special circumstances" and suggested that attempts be made to schedule a JPT during an upcoming "blitz pre-trial". The matter was adjourned to May 22, 2015 for that purpose.
[11] On May 22, 2015, Mr. Edgar appeared for all counsel and advised the Court that he had contacted the Crown's office to request that a JPT be scheduled on a day other than a Wednesday or a Friday. The Crown's office told him that he had to contact the trial co-ordinator, who in turn referred him back to the Crown's office. As a result, he was unable to find a date earlier than July 31, 2015 on which all counsel were available for a JPT. Crown counsel advised that a JPT could be conducted by telephone on Wednesdays and Fridays. The matter was adjourned to June 5, 2015 so that further attempts could be made to schedule a JPT.
[12] On June 5, 2015, Mr. Edgar advised that he had tried to schedule a JPT on a day other than a Wednesday or a Friday but that the Crown's office had been "unable to do anything". As a result, the earliest date on which all counsel were available remained July 31, 2015. Further disclosure was provided to the defence. Crown counsel advised the Court that "the Crown is anxious to move the matter along" and stated that "we offer JPTs twice a week, Wednesdays and Fridays". Mr. Edgar repeated that the earliest Wednesday or Friday on which all counsel were available was July 31, 2015. The matter was accordingly adjourned to that date.
C. Subsequent Judicial Pre-Trials and Setting the Trial Date
[13] A JPT was conducted on July 31, 2015 and a trial time estimate was done. The matter was adjourned to August 28, 2015 so that discussions between Crown and defence counsel could continue and so that certain disclosure which had been requested could be provided. On August 28, 2015, that disclosure, which apparently related to surveillance that had been conducted prior to the applicants' arrest, was not available. It was provided on the next date, October 2, 2015, and the matter was adjourned to October 9, 2015 so that a further JPT could be scheduled. On that date, a JPT was scheduled for November 27, 2015.
[14] A JPT was conducted on November 27, 2015. When the parties appeared in court, they agreed that a further JPT should take place. December 14, 2015 was suggested, but Mr. Christie was unavailable so it was scheduled for January 18, 2016.
[15] At some point between November 27, 2015 and January 18, 2016, Mr. Padullo-Mendes passed away. The JPT on January 18, 2016 did not take place because the articling student Mr. Christie had sent to conduct it had not been adequately briefed. The matter was adjourned to January 22, 2016, at which time the Crown stayed the charges against Mr. Padullo-Mendes and a JPT was scheduled for February 5, 2016.
[16] On February 5, 2016, the trial was scheduled for January 9 to 13, 2017. The court and the Crown would have been available to conduct the trial on October 3 to 7, 2016, but one or both defence counsel were unavailable.
II. ANALYSIS
A. Overview: The New Framework
[17] On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan, in which it established a new framework to be applied in s. 11(b) Charter applications. At the heart of the new framework is a "ceiling" beyond which delay is presumptively unreasonable unless the Crown can establish that the circumstances are exceptional. In this case, that ceiling is 18 months.
[18] The approach required by the new framework was recently summarized in R. v. Coulter, 2016 ONCA 704 at paras. 34-40:
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
[19] The new framework applies to cases currently in the system: Jordan at para. 95. However, for those cases, the determination of whether exceptional circumstances exist will take into account the parties' reasonable reliance on the law as it previously existed: Jordan at para. 96.
B. The Total Delay
[20] The applicants were arrested and charged on August 18, 2014. Their trial is scheduled to begin on January 9, 2017 and end on January 13, 2017. The parties are in agreement that the total delay in this case is approximately 29 months.
C. Defence Delay
(i) Overview
[21] The next step in the Jordan analysis is to subtract from the total delay any period which is properly characterized as defence delay. As the Court explained in Jordan, there are two components of defence delay. The first, waiver, has no application in this case as there is no suggestion that the applicants waived any of the delay. The second was explained in Jordan as follows (at paras. 63-65):
The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (R. v. Askov at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.
As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance.
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.
[22] In this case, the Crown submits that there were four periods of defence delay: (1) from April 30 to July 31, 2015 (two months and 15 days) because defence counsel were unavailable for a JPT; (2) from August 28, 2015 to January 18, 2016 (four months and three weeks), because although disclosure was incomplete, there was sufficient disclosure such that a trial date should have been set; (3) from January 18 to February 5, 2015 (18 days) because Mr. Christie had sent an unprepared articling student to the JPT, which resulted in it having to be rescheduled; and (4) from October 3, 2016 to January 9, 2017 (three months and eight days) because the Crown and the court were available for trial on the earlier date but the defence was not. I will consider each in turn.
(ii) April 17 to July 31, 2015
[23] By April 17, 2015, the parties were ready to schedule a JPT and the matter was adjourned to May 8, 2015 so that Mr. Edgar could canvass counsel's availability. The Federal Crown was available for JPTs only on Wednesdays and Fridays. The earliest Wednesday or Friday on which all defence counsel were available was July 31. The Crown submits that because defence counsel were not available earlier, this entire period should be categorized as defence delay.
[24] The Crown's submission ignores the fact that the Crown was only available on Wednesdays and Fridays. In other words, during the relevant period the Crown was unavailable on every Monday, Tuesday and Thursday between May 8 and July 30, 2015, which by my count is 36 out of the 58 working days during that period. It is difficult to understand how this period can be categorised as "delay attributable solely to the defence".
[25] It is unclear why the Federal Crown only conducts JPTs on Wednesdays and Fridays. Judges in this jurisdiction are available throughout the week. Counsel for the applicants made repeated attempts to schedule a JPT on an earlier date, and it would seem that the defence was available on earlier dates that were not Wednesdays or Fridays. Despite counsel's attempts, the Crown was unwilling to schedule a JPT on a Monday, Tuesday or Thursday. The fact that the Crown's unavailability was due to its own decision to not conduct JPTs on Mondays, Tuesdays or Thursdays does not make this delay the fault of the defence.
(iii) August 28, 2015 to January 18, 2016
[26] After the July 31, 2015 JPT, the matter was adjourned so that discussions between Crown and defence counsel could continue and so that the surveillance disclosure could be provided. That disclosure was provided on October 2, 2015. A second JPT was scheduled and took place on November 27, 2015. Following that, all parties agreed that a third JPT should be held, which was initially scheduled for January 18, 2016.
[27] Crown counsel submits that the second and third JPTs were unnecessary and that a trial date should have been set after the first JPT and before the surveillance disclosure was provided in October. As a result, most of the period following the first JPT should be characterized as defence delay.
[28] I do not accept this submission. "Defence delay", for the purposes of the Jordan analysis, refers to "deliberate and calculated defence tactics aimed at causing delay", including frivolous applications and requests. It does not include defence actions "legitimately taken to respond to the charges" or procedural requirements, such as JPTs. There is nothing in this record that would justify a finding that the second and third JPTs were "deliberate and calculated defence tactics aimed at causing delay". At no point did the Crown suggest that the further JPTs were unnecessary or that a trial date should have been set earlier than it was. As noted by Code J. in R. v. Gandhi, 2016 ONSC 5612 at para. 23, defence unwillingness to proceed may be considered defence delay, but only if the court and the Crown are ready to proceed. In this case, there was no indication from the Crown that it was ready to set a trial date. In most cases, JPTs, which Code J. in Gandhi referred to as "arguably the most important tool of modern case-management", will expedite rather than delay proceedings.
[29] There is authority for the proposition that the refusal to set a trial date until the defence has received "every last bit of disclosure" can, in some circumstances, count against the defence: Gandhi at paras. 34-35; R. v. Lahiry, 2011 ONSC 6780 at paras. 106-115; R. v. Kovacs-Tatar at para. 47; R. v. M.(N.N.) at paras. 36-43. However, these were all cases where the disclosure remained outstanding despite the Crown's best efforts to provide it. In both Lahiry and Kovacs-Tatar, the outstanding disclosure consisted of expert reports that the Crown had not yet received and in Gandhi and M.(N.N.), it related to material in the hands of third parties. In this case, there was no explanation as to why the surveillance disclosure had not been provided earlier. The Crown cannot fail to meet its obligation to make timely disclosure and then attempt to attribute the ensuing delay to the defence for failing to do without material it ought to have received: R. v. Walker, 2013 SKCA 95 at paras. 28-32.
(iv) January 18 to February 5, 2016
[30] The JPT scheduled for January 18, 2016 did not take place because the articling student Mr. Christie had sent to conduct it had not been adequately briefed. As a result, the JPT had to be re-scheduled to February 5, 2016. This period of 18 days (or just under three weeks) is properly characterized as defence delay. Rule 4.2 of the Criminal Rules of the Ontario Court of Justice provides that counsel attending a JPT must have the full authority to make important decisions, which clearly pre-supposes that counsel be adequately briefed. Furthermore, in my view it is inappropriate in indictable matters to have an articling student, who cannot represent the client in court, attend a JPT instead of counsel.
(v) October 3, 2016 to January 9, 2017
[31] Although the Crown and the Court were available to start a trial on October 3, 2016, the defence was not so the trial was scheduled to begin on January 9, 2017, about three months and a week later. There is no issue that this was a period where the Crown and the court were available for trial and the defence was not and as such should be attributable to the defence.
D. The Net Delay
[32] Based on the foregoing, I conclude that the total defence delay in this case is approximately four months, leaving a net delay of 25 months. [1] This is well in excess of the 18-month ceiling. As a result, the delay is presumptively unreasonable unless the Crown can establish that there are exceptional circumstances.
E. Transitional Exceptional Circumstances [2]
[33] The Crown submits that there were "transitional exceptional circumstances" as described in Coulter at para. 56:
Where the Remaining Delay exceeds the presumptive ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to July 8, 2016, the date that Jordan was released. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case took 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 to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform whether the parties' reliance on the previous state of the law was reasonable (Jordan, para. 96).
According to the Crown, this case proceeded at a "tardy but not excessively delayed pace" and the delay occurred because this was a complex case where the Crown reasonably relied on the law as it previously existed.
[34] I cannot accept this submission for two reasons. First, the Crown has not satisfied me that this was a complex case. I have been told little about the case, but it appears to be based on evidence seized as a result of the execution of a search warrant. The Crown submits that the case is complex because of the value of the drugs that were seized, which the Crown alleges was approximately $500,000. However, I fail to see how the value of the drugs relates to the complexity of the case. One can readily imagine very simple cases involving very valuable drugs and very complex cases involving drugs of little value. The value of the drugs may make the charges more serious, but the seriousness or gravity of the offence cannot be relied on to justify delay that is otherwise unreasonable: R. v. Jordan at para. 81; R. v. Williamson, 2016 SCC 28 at paras. 33-37.
[35] Second, I am far from persuaded that the Crown reasonably relied on the law as it previously existed. To the contrary, in my view the Crown's conduct in this case exemplified the "culture of complacency" described in Jordan. Although the investigation was complete by the time the applicants were arrested, initial disclosure was not made for approximately four months. The ITO, which was clearly of critical importance to the defence, was not disclosed until eight months after the charges were laid. The Crown states that this was because the ITO had to be vetted to protect the identity of a confidential informant and the Crown's office was short-staffed. I accept that such vetting is necessary and takes time. However, the ITO in this case was only nine pages long and only two small portions on the second page needed to be excised. I find it difficult to accept that the Crown's office was so short-staffed that it took eight months to vet nine pages. Even if it was, the Crown's failure to allocate sufficient resources to the prosecution of serious criminal offences cannot justify delay that is otherwise unreasonable. Even after the ITO was provided, it took another five months to provide the surveillance disclosure, which consisted of police notes that were created prior to the applicants' arrest. This can only be described as what Watt J.A. referred to in R. v. Manesseri, 2016 ONCA 703 at para. 359 as "a leisurely approach to disclosure".
[36] As the Crown points out, these are serious charges involving a significant quantity of dangerous controlled substances. However, as the Court pointed out in Williamson at para. 36:
. . . [T]he Charter right [to trial within a reasonable time] is respected, and the public interest is best served, by trying serious charges on their merits in a timely fashion. These are precisely the cases that should be heard promptly, on the strongest possible evidence.
III. DISPOSITION
[37] For the foregoing reasons, the application is granted. The proceedings are stayed.
Released: December 9, 2016
Justice P.A. Schreck
Footnotes
[1] The Crown submits that once the periods it claims are defence delay are subtracted, the net delay is 17 months and 26 days, which is just shy of the 18-month ceiling.
[2] The Crown also submits that the death of the co-accused was a discrete event that accounts for some of the delay. However, the death of the co-accused was first mentioned following the aborted January 18, 2016 JPT and the parties were ready to set a trial date after the next JPT. As this period has already been deducted as defence delay, the presence of this discrete event has no effect on the ultimate calculation.