Court File and Parties

Ontario Court of Justice

Date: February 24, 2017

Court File No.: Newmarket 15-07190

Between:

Her Majesty the Queen

— and —

Jianzhang Ye

Before: Justice Joseph F. Kenkel

Ruling – Section 11(b) Application

Heard and delivered on February 24, 2017.

Ms. Ivana Denisov ..................... counsel for the Crown

Mr. Robbie Tsang ..................... counsel for the defendant

KENKEL J.

Introduction

[1] Mr. Ye applies for a stay of proceedings as a remedy for an alleged breach of his s.11(b) Charter right to a trial within a reasonable time. Two days were scheduled for his trial but the matter wasn't heard on the second day. A Crown witness who had been bound over failed to return on the following day resulting in another adjournment. With the necessary accommodation for the lawyers' schedules, a case that should have ended in November didn't finish until February.

[2] The net delay falls below the presumptive limit for this court. After careful consideration of all of the circumstances for the reasons that follow I've found that the applicant has failed to show that the case took markedly longer than it should have.

The Case History

[3] The appearances in this case:

• September 15, 2015 — Information sworn
• September 29, 2015 — First appearance; Disclosure, Def Adj
• October 20, 2015 — Second appearance; Adj for PT
• December 1, 2015 — Third appearance; Adj for JPT
• January 14, 2016 — JPT; Adj by defence
• February 4, 2016 — Trial Set NCD Nov 16-17 Trial
• November 16, 2016 — Trial; Evidence heard
• November 17, 2016 — Trial; Adj court n/a
• January 19, 2017 — Trial; Adj witness FTA
• February 24, 2017 — Trial Completed

[4] There was an intake period to January 14, 2016. After the judicial pre-trial meeting the defence obtained a brief adjournment for instructions. On February 4th, 2016 two days were scheduled for trial – November 16 and 17, 2016. The defence concedes that they were not available for a two day trial until March 7th and would not otherwise have been prepared for trial until that time.

[5] On November 16th there was no courtroom available until 11:30 a.m. when another trial completed. There was some difficulty in locating the Cantonese Interpreter and counsel had some discussions so this trial started just after 12:30 p.m. The Crown advised that a civilian witness who would have gone first had not attended so they started with the officer-in-charge. His evidence continued to the end of that day.

[6] The trial was started on the 16th, but in circumstances where the court had just finished a trial from July 20th and was scheduled to complete a drug trial on November 17th that had started in February. The history of that drug case and the paramountcy of the Federal prosecution led to the drug trial being heard and this case adjourned from November 17, 2016 to January 19, 2017. The Crown's civilian witness who did attend November 17th pursuant to his subpoena was bound over by the court to the next trial date.

[7] The evidence of the arresting officer was completed in seven minutes on January 19, 2016. That focus resulted in part from discussions between counsel in the interim. The civilian witness who had been bound over did not attend so the Crown's request for an adjournment was granted. The trial evidence was completed with the very brief testimony of the tow truck driver on February 24, 2017.

[8] While the early appearances in this case pre-date the decision in R v Jordan 2016 SCC 27, the trial history at issue occurs after the release of that decision.

Section 11(b) – The Jordan Analysis

[9] Delay is measured from the date the information is sworn[1]. The total delay in this case from September 15, 2015 to February 24, 2017 is 529 days or 17 months and 10 days.

[10] From the total delay the following periods of delay must be subtracted as defence delay:

• Jan 14 – Feb 4/16: 22 days — Adjournment to obtain instructions
• Jan 10 – Jan 11/17: 2 days — Defence not available for early date[2]
• Feb 2 – Feb 24/17: 23 days — Defence not available for early date[3]

[11] Delay attributable to the defence totals 47 days. Subtracting that number from the total delay leaves a net delay of 482 days or 15 months, three weeks and four days. The net delay falls below the 18 month presumptive ceiling for cases in this court.

[12] Where the net delay falls below the presumptive ceiling, the defence bears the onus to show that the delay was unreasonable. The defence must show that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it should have – Jordan at para 82.

[13] The history of this case is unremarkable until the matter could not be reached on the second day scheduled for trial. The defence acted reasonably throughout. After the trial commenced the defence and the Crown continued discussions and there was little time required to complete the matter. I find that the defence has shown a consistent effort to expedite the proceedings. The more difficult issue is whether the case took markedly longer than it should have.

[14] The delay of just under nine and a half months from the point the parties were ready to set a trial date to the start of the trial was typical and reasonable for a two day trial. It's unfortunate that the matter couldn't be completed on the second day but overbooking and the numerous continuing cases that result are familiar circumstances in this very busy court where every effort is made to maximize the use of court time.

[15] The Crown streamlined its case significantly by abandoning a voluntariness voir dire and inviting dismissal of the Over 80 charge. Only the very brief testimony of the civilian witness remained. The case would have been completed on January 19th but for the failure of that witness to attend. That was an unusual external circumstance beyond the control of either party that resulted in a further adjournment. The witness was under subpoena and had been directly bound over to attend on January 19th. A portion of the further delay to February 24, 2017 was to accommodate defence counsel's schedule.

[16] Even though the net delay fell below the presumptive limit, the circumstances of the delay warranted careful scrutiny. However, considering all of the circumstances in the context of s.11(b) and the rights that section was meant to protect, I do not find the overall delay markedly exceeded the reasonable time requirements of the case.

Conclusion

[17] I find the applicant has failed to prove the breach alleged on the balance of probabilities. The application is dismissed.

Released: February 24, 2017.

Justice Joseph F. Kenkel

Footnotes

[1] See R v Coulter 2016 ONCA 704 at para 62. There may be an exception where there is an unusual delay in the swearing of the Information – R v Luoma 2016 ONCJ 670 – but that's not the case here where the Information was sworn within two weeks of the alleged offence date.

[2] The defence submits the concept of reasonable availability per R v Godin 2009 SCC 26, that applied to the assessment of institutional delay under the Morin analysis, should be adopted when considering defence delay per Jordan. It's not plain that's the case given numerous differences between the two approaches. There was no mention of the concept nor was it applied in R v Williamson 2016 SCC 28. However, there is some authority for the defence position – R v Gasana 2016 ONCJ 724 at para 20 and R v Ashraff 2016 ONCJ 584. Little turns on the issue in this case as the net delay falls below the presumptive limit on any calculation, but without deciding this issue I've decided to disregard the defence rejection of one day – December 21, 2016 – for the ongoing trial. If that's an error 20 further days should be deducted for defence delay.

[3] Defence unavailability for numerous days in February is reasonably attributable to the defence on either test.