Court File and Parties

Date: 2016-11-29

Court File No.: Central East - Newmarket 12-07614

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mona Sedighi

Before: Justice P.N. Bourque

Reasons for Judgment

Released on November 29, 2016

Counsel:

• Michael Ventola, for the Crown
• David Locke, for the Defendant

BOURQUE J.:

Overview

[1] The defendant ("Applicant") Mona Sedighi is charged that on May 14, 2015, she did commit the offence of drive with excess alcohol and drive impaired. The information was sworn on May 27, 2015.

Trial within a Reasonable Time 11(b) Charter of Rights and Freedoms

[2] The defendant 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.

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.

Relevant Time Periods and Actions by the Parties Which Impact Upon the Issue of Delay

Date of offence: May 14, 2015

Date of charge: May 27, 2015

1st court appearance: June 4, 2015

• First appearance, counsel retained and initial disclosure delivered, adjourned for 4 weeks to July 2, 2015.

2nd court appearance: July 2, 2015

• Defence seeks breath room video and adjourned to July 17, 2015

3rd court appearance: July 17, 2015

• Defence gets more paper disclosure but seek breath room videos – despite courts request to set trial date and get disclosure in the interim, defence wishes to adjourn with the agreement of the Crown to July 31, 2015

4th court appearance: July 31, 2015

• Adjourn for a judicial pre-trial on August 31, 2015

5th court appearance: September 18, 2015

• Judicial pre-trial held and all disclosure received – adjourned to October 2, 2015 for defence to get instructions

6th court appearance: October 2, 2015

• Trial date to be set but counsel wishes it set on a "with or without counsel" basis so the client (who is not there) will have to be present. Adjourned to October 19, 2015 to set a trial date.

7th court appearance: October 19, 2015

• Trial date of April 5, 2016 set – court had earlier date of March 4, 2016 but counsel not available – adjourn to April 5, 2016 for trial estimated for 1 day

1st trial date: April 5, 2016

• First day of trial – trial commenced in the afternoon – Crown initially sought adjournment as a witness who was subpoenaed was not in attendance but Crown aware of this fact one month before. Trial commenced but adjourned to July 6, 2016 to continue

2nd trial date: July 6, 2016

• Trial not completed adjourned to November 14, 2016.

3rd trial date: November 14, 2016

• Trial not completed – two hours used for 11(b) application but Crown could have completed its case but for the non-attendance of a Crown witness. Adjourned to November 29, 2016 – the witness was not subpoenaed.

4th trial date: November 29, 2016

Total Time from Charge to Trial Completion

May 27, 2015 to November 29, 2016

18 months + 2 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. Coulter, 2016 ONCA 704, the Court of Appeal provided a summary of the Jordan framework for analysis of delay as follows:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47);
2. Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66);
3. Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66);
4. 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, at para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71);
5. 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, at para. 75);
6. 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);
7. 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);
8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

[7] 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.

[8] 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.

Transitional Provisions

[9] 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.

[10] For 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.

[11] 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...".

Length of the Delay

[12] In this case, the total length of the delay from charge until attendance for the completion of the trial is only 18 months, before applying any adjournments solely attributed to the defence.

[13] We are in what the Supreme Court of Canada has called the "transitional" phase. I must apply the transitional considerations to the new rubric.

Defence Delay

[14] As a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.

[15] 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.

Delays Before Setting Trial Dates

[16] As I review the transcripts, there is a period of delay that is solely attributed to the defence.

[17] Before the setting of the first trial dates, namely September 18, 2015 to October 19, 2015 is two continuous adjournment periods of 1 month, which is the period from the end of the judicial pre-trial to the defendant deciding to set a trial date.

[18] With regard to the delay to get the breath room video, I do not ascribe any of this delay to the defence. While the defence does not need all of the disclosure to move a matter forward, the breath room video is in my opinion (in a drinking and driving case) primary disclosure and I do not fault to the defendant for wishing this video before moving forward. I contrast this with the entire video of the occupation of the cells by the defendant, to which he is entitled, but not necessary to move the matter forward. I also have not received any explanation from the Crown as to why the video was not part of the disclosure within the first two months of the charge.

Delays in Setting Trial Dates

[19] With regard to the first trial date, the Crown argues that since the defendant could not accept the first trial date of March 4, 2016, then the period from that date to the first trial date of April 5, 2016 should also be deducted.

[20] The Crown accepts that this matter has come up three further times for trial and agrees that the defendant was not solely responsible for those delays. He submits however that most of those subsequent delays are solely the responsibility of the defendant because he did not accept earlier dates.

[21] With regard to the delay from April 5, 2016 to July 6, 2016, the court offered several dates namely: April 27, May 13, June 17, June 28, June 29 and July 5, which were not available to the defence (There were also dates of June 22 and June 24, which were offered and were acceptable to the defence but not to the Crown).

[22] With regard to the delay from July 6, 2016 to November 14, 2016, the court offered dates of October 12, 2016, which the defendant was not available. The defendant stated he was available for many other dates. We are now in the post-Jordan world. In the transition, I think that the defence is under a greater obligation to move a matter forward than before. The defence agreed to the first date on November 29th, after the third adjournment. The defence counsel noted that he accepted this first date even though he would have to adjourn another matter.

[23] Before the decision in Jordan, courts were sensitive to the fact that defence need not be perpetually available for trial, and thus the system had to offer a range of dates to allow for this. I believe that in the transitional period, the previous law would apply, at least for any adjournments before June 2016.

[24] Before the decisions in Jordan and Coulter, I would have attributed some of the period of delay between April 5, 2016 and July 6, 2016 to the defence. I believe that he was offered reasonable dates in April and May. I therefore would have deducted 1-1/12 months from the Morin analysis.

[25] Taking into account Coulter, I believe that I must deduct the periods from the first dates offered in the delay from July to November, and thus I must deduct a further 1 month from the total time it took this case to reach trial.

[26] I therefore find that the net time to trial is (18 – 3 1/2) = 14-1/2 months.

Analysis

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

1. Has the defendant taken meaningful steps that demonstrate a sustained effort to expedite the proceedings; and,
2. Has the case taken markedly longer than it reasonable should?

[28] 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 "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. 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.

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

[30] 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".

[31] Under the previous guidelines (as per Morin, which the parties were operating under for most of the time), the Crown would be allowed some 3 months intake, the system would treat a reasonable time (1 month) for a judicial pre-trial as neutral, and counsel would have to clear their schedules and be ready for trial (usually 1 month). From the total delay of 18 months there would be deducted some 4 months. The net delay as per the Morin guidelines would have been 13 to 14 months.

[32] For a case of impaired driving with no injuries and the usual amount of prejudice caused largely by the charges and the anxiety created by them continuing, would be added the four attendances to complete the trial. In this jurisdiction, a delay of some 13-14 months for this type of case would surely lead to a stay as a breach of the 11(b) rights.

[33] There has been no extra evidence of prejudice in this case. I accept that this was probably a two-day trial but even so, four attendances will lead to some inferred prejudice. While no affidavit was provided, four attendances would increase the cost to this defendant by a significant amount. This case involved drinking and driving and a motor vehicle accident with some minor injuries. Balancing these factors, I would have surely entered a stay under the previous Morin framework.

Conclusion

[34] I have found that the total time from charge to trial in this matter exceeds 18 months. The net delay is approximately 14-1/2 months. I have found that under the previous Morin guidelines, that the delay would have clearly been such that a stay would have been entered.

[35] I find that a delay which includes four different court appearances (none of which are the fault of the defence) would, under the previous guidelines have been a significant prejudice as per R. v. Godin. The charges would clearly have been stayed.

[36] In previous cases, I have found that a total delay (without deduction for defence issues) of between 12 to 15 months is the norm in this jurisdiction for drinking and driving offences. Even if we deduct all times when the defendant was not available when the Crown and court were available, we would still exceed some 13-1/2 months.

[37] I find that, at least during the transitional provisions, that this case has indeed taken markedly longer than it should have, and thus I enter a stay under section 24(1) of the Charter.

Signed: "Justice P.N. Bourque"

Released: November 29, 2016