WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

Date: February 28, 2017

Court File No.: Central East Region

Parties

Between:

Her Majesty the Queen

— and —

T.B-E., a young person

Before the Court

Before: Justice J. Bliss

Heard on: February 13, 2017 and February 15, 2017

Reasons for Judgment released on: February 28, 2017

Counsel

S. Sullivan — counsel for the provincial Crown

R. Jones — counsel for the federal Crown

R. Gregor — counsel for the defendant T.B-E.

Decision

BLISS J.:

Application for Stay of Proceedings

[1] T.B-E., a young person, has brought an application to stay his charges pursuant to s.24(1) of the Charter for breach of his Charter s.11(b) "right to be tried within a reasonable time". The trial was originally to be before Meijers J. but came before me after Justice Meijers recused himself.

[2] The applicant is facing charges, and trial, on two informations arising out of offences alleged to have occurred on October 25, 2015. By agreement, the prosecution and defence had agreed to a joint trial on the two informations.

[3] The first information ("provincial information") charged the applicant with being unlawfully in a dwelling house, possession of a weapon, possession under $5,000, mischief to property, obstruct peace officer, and two counts of failing to comply with his recognizance. The second information ("federal information") charged T.B-E. with possession of MDMA, but also charged "Shemiah Charles" with possession of marijuana under 3 kilograms for the purpose of trafficking, possession of ecstasy, and possession of marijuana under 30 grams. "Shemiah Charles" was the name T.B-E. allegedly provided to police on his arrest. All parties had come to trial expecting the CDSA information to name the accused on all counts whether by amendment or swearing of a new information.

[4] On November 9, 2016, which was the first day of the applicant's trial before Meijers J., the federal Crown applied unsuccessfully to amend the information to name T.B-E. in place of "Shemiah Charles". She argued that the latter name was the name the applicant identified himself to police as, and that the failure to amend the information earlier was simply an oversight. It was common ground that the amendment was contemplated some time ago, but having been taken by surprise that the information was still reflecting another named person, the defence opposed an amendment on the trial date and also argued that the information was a nullity. The trial judge declined to allow the amendment, and so in response, the federal crown withdrew the "Shemiah Charles" charges. The applicant was left facing a single count of possession of MDMA on that information. Even after the withdrawals, the applicant maintained that the information was still a nullity and should be quashed, and also brought an application to sever the obstruct peace officer count on the provincial information from the joint trial. Over the course of the next two days of what had originally been scheduled as trial dates, both of those applications were dismissed. On December 12, 2016, as all parties were ready for Mr. B-E to be arraigned and commence his trial, an exchange occurred between the Court and the applicant over his lateness for court and lack of contrition. That led to an application for the judge to recuse himself and his decision to do so on February 8, 2017.

[5] By oral notice, the applicant advised the prosecution and Court that a s.11(b) application would be brought. The afternoon of February 13, 2017 was set for the commencement of that application with the trial now scheduled to commence on February 15, 2017 and continue on March 27, April 4, May 15, and July 10, 2017. Transcripts were provided along with caselaw but no Application in Form 1 was served until February 12, 2017. It was filed with the Court on February 13, 2017. The applicant also submitted that having brought an 11(b) application in advance of arraignment, I would be in error to arraign the accused and should hold off commencing the trial until the s.11(b) decision was rendered. I declined to do so and the applicant was arraigned on February 15, 2017 and a half day of evidence was heard before the matter was adjourned to the March continuation date.

Legal Framework: R. v. Jordan

[6] The tortured preamble to this application perhaps provides some sense of what the transcripts reveal of this matter. The Supreme Court of Canada sought to provide some clarity to the law on unreasonable delay in R. v. Jordan 2016 SCC 27, applied and summarized by the Court of Appeal in R. v. Coulter 2016 ONCA 704, and examined in the context of young persons in R. v. J.M 2017 ONCJ 4.

[7] Under Jordan, a presumptive ceiling of 18 months was set for cases going to trial in the provincial court beyond which the delay is presumptively unreasonable. (para 46). The total delay is calculated from the charge date to the actual or anticipated end of trial minus defence delay. If above the presumptive ceiling, and presumptively unreasonable, the Crown can only rebut this presumption by establishing the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow (para 47). If the total delay falls below the presumptive ceiling, then the onus 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. Stays beneath the ceiling, the Supreme Court contemplated, would be rare and limited to clear cases (para 48).

[8] Defence delay is comprised of delay clearly and unequivocally waived either explicitly or implicitly by the defence (para 61) and delay caused solely by the conduct of the defence. The latter 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" (Askov, at pp. 1227-28). Delays which are characterized as deliberate and calculated defence tactics aimed at causing delay include frivolous applications and requests (para 63).

[9] It bears repeating that "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. Defence applications and requests that are not frivolous will generally not count against the defence" (para 65).

[10] "Exceptional circumstances", where the Crown seeks to rebut the presumption of unreasonableness, are circumstances which lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional (para 69-70).

[11] For cases, such as the case at bar, which are "in the system", the new framework, including the presumptive ceiling, applies subject to two qualifications: Where the delay exceeds the ceiling, a transitional exceptional circumstance may arise 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. (para 95-96)

[12] Where the total delay minus defence delay falls below the ceiling, any 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 (para 99).

[13] The majority in Jordan made a point of highlighting that for most cases in the system, the new 11(b) framework should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one.

[14] For cases already in the system, the presumptive ceiling still applies; however, "the behaviour of the accused and the authorities -- which is an important consideration in the new framework -- must be evaluated in its proper context (Mills, at p. 948). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance" (para 103).

Application to Young Persons

[15] What was not before the Supreme Court was consideration of how the new regime would apply to young persons. As Paciocco J. reasoned in J.M., supra, if 18 months is the so-called bright line for adult offenders, common sense and previous jurisprudence would suggest that the reasonableness of trial delay for young people should be something less than that.

It is helpful, in my mind, to think of it this way. Charter jurisprudence has long recognized that equality of process does not always achieve equality of outcome. This holds true when comparing the effects of delay in youth and adult cases… Different presumptive ceilings within the same legal test established in R. v. Jordan, supra are therefore required to ensure that both groups experience the same constitutional guarantee…In my view, legal principles coalesce to confirm that lower presumptive ceilings have to be developed in youth cases, under the Jordan framework (para 134-135).

What is clear is that nothing higher than 15 months could reasonably serve as an appropriate presumptive ceiling. This is because, ex hypothesi, the presumptive ceiling must be less than 18 months if the tolerable delay for young persons is to be less than for adults, and anything less than a three month discount would be little more than a symbolic or paltry way to honour that principle (para 144).

[16] While declining to ascribe a presumptive ceiling in youth matters, J.M is instructive and it is against that backdrop that I consider the entire proceedings against Mr. B-E from its genesis to anticipated conclusion:

Chronology of Proceedings

[17] T.B-E. was arrested on October 25, 2015. He appeared in bail court for the first time on October 26, 2015. There was neither a Notice To Parent nor a surety present. In any event, the Crown advised they were seeking to cancel his outstanding recognizance from Sudbury and sought to have the matter return the next day. On that day the duty counsel indicated that counsel, Ms. Gregor, had been contacted and a prospective surety was spoken to who indicated his availability for October 30th and the matter was adjourned accordingly. The matter continued to be addressed by duty counsel and on that return date the surety was not able to attend so Mr. B-E had his matter adjourned to November 2, 2015. That date, duty counsel was not in a position to offer a plan of release and the young person was then adjourned to appear before the Youth Court on the next day. There was still no Notice To Parent filed.

[18] On November 3, 2015, Mr. B-E appeared before a Judge in Youth Court. A Legal Aid certificate had been issued but his counsel of choice, Ms. Gregor, was seeking authorization for travel. The young person's father, who had apparently verbalized an unwillingness to assist, was ordered to attend and the matter was to return on November 6th back in bail court. While his father could not attend that day, his sister did. As there was still no plan of release in place, his bail hearing was adjourned to November 9th for his father to attend and then again on November 12th. While Mr. B-E Sr. did attend that day, he apparently could not offer a "workable" plan, nor was the paperwork from the Sudbury charges before the Court. Once again, the young person remained in bail court and was to return November 18th for a surety to attend.

[19] On November 18th, duty counsel advised that Mr. B-E had his own lawyer involved and the instructions relayed to court was a hope that a surety would be present and duty counsel would conduct the bail hearing. No surety appeared and with no plan in place, the young person sought to return on November 24th in bail court. The Court voiced concerns of his being in custody at that point for a month. This was a concern echoed by duty counsel who counselled the young person that he should get more instruction from his lawyer as to the plan moving forward.

[20] When Mr. B-E appeared again in bail court on November 24, 2015 and again sought to have the matter adjourned to try and get a surety or information from his counsel, it was the Crown who voiced concerns about his being in custody for a month and the seemingly ongoing adjournments in bail court and wanted the matter to go before a Judge in Youth Court. Duty counsel contacted Ms. Gregor who advised duty counsel that a few days earlier she had been authorized to act for him on the Simcoe County charges and that a letter requesting disclosure had been sent. Counsel's contact information was provided to the Crown and the request was for the young person to return on December 1st for counsel to receive disclosure and/or be present or provide instructions. The matter was then remanded as per counsel's request to have Mr. B-E return before a Judge in Youth Court.

[21] When the young person appeared before the Youth Court, a message was provided from counsel that she had a call scheduled with the youth on December 7th and wished to have the matter return the next day to allow her to review disclosure and speak to her client. That did not take place, and so on December 8th there was a request for a further two week adjournment for her to receive disclosure or outstanding disclosure. The provincial Crown advised that disclosure was available and made a note for it to be sent to his counsel. Counsel's note to duty counsel on December 22nd, however, was that the provincial disclosure had still not been received so the request was for the matter to return on January 5, 2016. The request on January 5th, however, was for his charges to be adjourned until after his February 5, 10 and 11, 2016 trial in Sudbury and so he was remanded to February 16, 2016 in bail court with counsel advising she would conduct pre-trials/crown resolution meetings with both the provincial and federal crowns in the interim.

[22] There then began another series of shorter adjournments, a waiver of his 90 day review, and a bail hearing apparently to proceed on February 22, 2016. The message that day set out that counsel was seeking a special bail hearing. That needed to be arranged through the trial co-ordinator. When Mr. B-E returned on February 24, 2016 he was adjourned to a special bail hearing date of March 18, 2016. It was on that date that counsel attended and the young person was released on bail on consent and the matter was to return in the Youth Court for April 5, 2016. When he did return, the matter was adjourned to April 26th as Ms. Gregor had a federal pre-trial set for April 20, 2016 and was in the process of setting one up for the provincial charges. The latter pre-trial was scheduled for April 26th so the Court appearance for that day was adjourned for one week to allow that to take place. When the matter returned to Youth Court on May 3rd, the requisite pre-trials had been conducted and it was then that a judicial pre-trial was scheduled for May 24, 2016. After the judicial pre-trial, Mr. B-E's matters were remanded to June 7th to set trial dates. Three days were agreed upon to commence November 9, 2016 and continue November 28 and 29, 2016. The Jordan decision was released on July 8, 2016. At the status hearing on September 14, 2016, counsel appeared personally and three days for trial were confirmed.

Events at Trial

[23] All parties attended for trial before Meijers J. on November 9, 2016. Before arraignment, as noted, issue was taken with the second information naming Shemiah Charles as the accused on three C.D.S.A. charges and the accused T.B-E. on the remaining C.D.S.A. count. It is common ground that the information should have been amended to reflect the accused's name on all charges on that information but was not done. When the federal crown sought to amend the counts prior to arraignment, defence counsel objected and after some discussion and research, the parties returned just prior to the lunch break and the federal crown advised of her intention to withdraw those counts. Defence counsel objected to the crown doing so arguing that the information was a nullity on its face, and submitting that the Court had no jurisdiction to deal in any way with the information except to quash it in its entirety. As defence counsel put it "in this case you lose jurisdiction because [the information] names two people. One of them is not here. The Crown is saying that person essentially does not exist". The Court rejected the jurisdiction/nullity argument and the charges against "Shemiah Charles" were withdrawn.

[24] Defence counsel then sought to sever the obstruct peace officer count, or evidence of that count, from the trial. The basis for the application was that in seeking to amend the counts to charge T.B-E. instead of Shemiah Charles, the federal crown submitted that the latter name was in error, the information should have been amended earlier, and alleged or asserted that Shemiah Charles was the name Mr. B-E identified himself as to police. The defence position was that those submissions were prejudicial to the accused and the prejudice was compounded by the Court opining "that's probably what happened". The defence submitted that the prejudice was not remedied by the withdrawal of the Shemiah Charles counts and the comment from the bench was to prejudge the accused as dishonest. The turn of events, as defence characterized it, dramatically changed the landscape, trial tactics, prior agreement to proceed by way of a blended trial, to the accused now no longer intending to testify on the obstruct charge.

[25] The remainder of November 9, 2016 was spent hearing argument not evidence. Written submissions were prepared and November 28th proceeded in much the same fashion. November 29th was a continuation of argument with the exception that Mr. B-E was not in attendance having been hospitalized, and the matter proceeded in accordance with his instructions, in his absence. The day ended with Meijers J. dismissing the application and December 12, 2016 was then appointed as the day the trial was to begin. Unfortunately, Mr. B-E showed up over an hour late having been two hours late on the first day of trial. When invited to apologize, the young person offered only an apology to his lawyer and led to the presiding judge suggesting counsel to speak to her client about "contempt of court". That then led to a recusal application which was granted on February 8, 2017.

[26] The above is the kind of microanalysis of the chronology of events that Jordan seeks to avoid because there Jordan now speaks of an obligation on all participants in the criminal justice process to ensure that trials are conducted and concluded in a reasonable amount of time. As the Supreme Court wrote, "this new framework creates incentives for both the Crown and the defence to expedite criminal cases" (para 94). The new framework, including the presumptive ceiling, applies to cases currently in the system subject to a transitional "exceptional circumstances" exception.

Total Delay

[27] There is no agreement as to the total delay in this matter. The matter was scheduled for 3 days for trial. That was what was agreed by defence and crown at the judicial pre-trial and confirmed by both parties at the status hearing on September 14, 2016 when the trial was confirmed for November 9, 28 and 29, 2016. Both provincial and federal Crown maintain that the trial requires three days. The defence now suggests more and so February 15, March 27, April 4, May 15 and July 10th have now been set aside. Half of February 15, 2017 was spent dealing with 11(b) arguments and the trial commenced. If I were to anticipate the end of the trial, it would appear to be May 15, 2017 according to the prosecution but July 10, 2017 according to the defence. The total delay would then be 18 ⅔ months or 20 ½ months respectively.

Defence Delay

[28] Delay attributable to the defence must be subtracted from the total delay. "The defence should not be allowed to benefit from its own delay-causing conduct." (Jordan, para 60). Defence delay is comprised of either delay (1) arising from defence waiver or (2) delay caused solely by the conduct of the defence, that is, defence-caused delay (Jordan, para 61; Coulter, para 42). Waiver can be explicit or implicit but must be clear and unequivocal in that the accused must have full knowledge of his rights and the effect waiver will have on those rights (Jordan, para 61; Coulter, para 43).

[29] At paragraphs 63-65 of Jordan:

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" (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.

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.

[30] The defence submits that the only period of defence delay was the period from November 29, 2016, when the accused was absent and in the hospital to December 12, 2016. That two week period would take the net delay to 20 months but still clearly above the presumptive ceiling. The defence takes the position that no other delays in the matter coming to trial were caused by the defence. A review of the transcripts does not, however, bear that out.

[31] T. B-E. spent from October 26, 2015 until March 16, 2016 in custody awaiting his bail hearing. He had Ms. Gregor representing him on his outstanding matters. She was advised of his arrest on October 26th but not retained and duty counsel made efforts to put a release plan together. After about a week in bail court, Mr. B-E appeared before a Judge in Youth Court. Ms. Gregor had been retained through Legal Aid subject to authorization for her to travel from Sudbury to Barrie. On November 18, 2015, Ms. Gregor sent a message to duty counsel hoping a surety was present and seeking to have duty counsel run the bail hearing. The court and duty counsel wanted Ms. Gregor to provide some indication of the plan going forward; instead, when the young person appeared again in bail court on November 24, 2015, it was the Crown who voiced concerns about his being in custody for a month and the seemingly ongoing adjournments. Ms. Gregor had received authorization to represent Mr. B-E on the Simcoe County charges and had sent a letter requesting disclosure. Despite having been authorized to act for her client, Ms. Gregor did not appear personally nor have an agent speak to the matter at any time prior to the March 18, 2016 bail hearing. Disclosure was available in Court on December 8, 2015 but Ms. Gregor continued to rely on duty counsel to relay messages. Disclosure on the provincial charges were sent by courier to Ms. Gregor following his December 22, 2015 appearance and certainly prior to Mr. B-E's return to Court on January 5, 2016. Once disclosure was in the hands of defence counsel, what should have occurred was the setting of crown resolution meetings or crown pre-trials with both the provincial and federal crowns. That did not happen despite Ms. Gregor's messages to duty counsel seeking adjournments for those very meetings to be scheduled when she requested his matters be adjourned until after his February 2016 trial on outstanding charges in Sudbury. There were still no resolution meetings conducted, but a further series of adjournments until counsel indicated she wanted a special bail hearing set. That was scheduled for March 18, 2016 and was the first time Ms. Gregor appeared in person.

[32] From March 18th and the young person's release, requisite resolution meetings and a Judicial Pre-trial were held and by June 7, 2016, Mr. B-E was in a position to set dates for trial. That was a period of 2 ⅔ months. I can extrapolate from that, that had defence counsel pursued setting of crown resolution meetings and judicial pre-trial at the same pace back on January 5, 2016 when she had all of the disclosure, she should have been in a position to set a date for trial by the beginning April, 2016. The delay of about 2 ⅓ months from April to June 7th lies solely with the defence and must be deducted from the total delay.

[33] As counsel conceded during the 11(b) hearing, the bail issue had nothing to do with the process of preparing to set and schedule time for trial, but in this case, it was inaction by the defence that contributed solely to the delay in keeping Mr. B-E in bail court. Under the previous regime, it was not for the Court or crown to protect the accused's 11(b) right, but the defence by initiating the pre-trial process.

[34] Also subtracted from the delay is the conceded two week period from November 29, 2016 to December 12, 2016 which takes the deducted defence delay to 3 ⅓ months.

[35] A more difficult analysis is what to make of what took place on November 9, 28 and 29, 2016 acknowledging the caution in Jordan that defence applications and requests that are not frivolous will generally not count against the defence.

[36] Neither party were in a position to proceed with the trial at 9:30 a.m. as scheduled on November 9, 2016. Mr. B-E did not appear until 11:15 a.m. and the complainant and a then-Crown witness also failed to respond to their subpoenas. The complainant did ultimately appear before the lunch break and had the trial commenced, she would have been the first witness for the prosecution. A material witness warrant was issued for the other witness. He ultimately appeared before the Court on November 28, 2016 at which time the provincial Crown advised that he was no longer considered an essential witness for the prosecution and sought to release him from his subpoena and material witness recognizance. The defence took the position that he was essential and if not called by the prosecution, may be called by the defence.

[37] As noted, prior to arraignment on November 9, 2016, defence counsel took issue with the "federal information" and sought an adjournment to bring a formal application to quash the information in its entirety as a nullity as it "incorrectly" named T.B-E. on one count under the CDSA and the remainder named Shemiah Charles. As became clear during the submissions on that issue as well as the 11(b) hearing, the expectation of the prosecution and defence was that prior to trial the information was to have been amended to name T.B-E. on all counts on that information. On the day of trial, having not been amended, the crown sought to do so. From the outset, the crown advised of an intention not to proceed with count two but sought amendments to count three and four of the four count information. In the face of opposition from defence and commentary from the trial judge, the crown returned just prior to the lunch break and withdrew the offending counts leaving only the count properly naming the accused.

[38] When matters returned after lunch, the defence position was that the entire "federal information" which now only contained the one count against the accused, was a nullity. Defence counsel then argued that the information was a nullity because "what it is right now is that we have seemingly two accused. One of them is here, one of them is not. So there's no jurisdiction to deal with that any further." That application was dismissed.

[39] What followed next was not an arraignment but a further defence application now involving the provincial information to sever the obstruct peace officer charge from the other charges. Defence counsel explained that this application, brought without notice, was as a result of events of that day because (a) the trial judge had seen the information naming Shemiah Charles which is the name that Mr. B-E allegedly falsely identified himself to police as, and (b) comments from the bench during the amendment application that the defence claimed demonstrated a pre-judgment of that charge.

[40] In the exchange between the federal crown and the Court on her application to amend the aforementioned information, the crown argued that the police originally charged the accused as "Shemiah Charles" but once they found out that Shemiah Charles was actually T.B-E., they re-laid the information in his name but forgot to with respect to the other counts in the information. The trial judge responded "that's probably what happened". The defence argued that this was essentially an affirmation of the police allegations and a finding of credibility "since giving someone a false name is dishonest". The defence further submitted that now the evidence that the defence would call now on the obstruct charge would be different than the evidence on the other counts which was not the case previously. When pressed, the problem was not that the allegation was something the Crown would not have been capable of alleging in an opening statement but the Court's expressing a view of what happened prejudiced the accused. That view was not the basis of a recusal application because the defence was "confident [the judge] could disavow [his] mind of anything that had been said or seen on the information".

[41] November 28, 2016, on what was supposed to be the second day of trial, was spent with the defence's severance application. As a result of what happened on November 9th, defence counsel submitted that "the accused previously had an intention to testify on the obstruct charge but now there has been a strategic shift where he will take the stand and testify with respect to the other charges…but as of right now he intends to take the stand and testify with those (other) charges but not the charge of obstruct".

[42] The defence submitted that Mr. B-E wished to testify with respect to all of the charges except the obstruct charge. In counsel's words, he would be "uncomfortable testifying in front of [the then-presiding Justice] with respect to the obstruct charge because of the views that were expressed, but not with respect to the other charges because the court did not express views on them". The defence position then changed to be regardless of who was trying the case, the accused will not testify on the obstruct charge. Defence counsel's position was that from her client's standpoint, the Judge like all Judges, represents the administration of justice. So when the presiding Judge expresses a view, it is the view of the administration of justice and so would be no different from the view of any other judge associated with the administration of justice. Mr. B-E was now not comfortable testifying on a charge that the Court/administration of justice had already expressed a view on.

[43] Having commenced the severance application based in part on the accused wishing to testify on all counts except the obstruct charge, a new position emerged that if severance was not granted, the accused would not testify on any count.

[44] The application for severance was denied on November 29, 2016. The Court suggested that the trial still proceed in a blended fashion. In the face of Mr. B-E's position with regard to testifying or not testifying on the obstruct charge, the Court suggested that if the Charter application challenging the statement that was the basis of the charge was successful, that would obviate the need for him to make a decision with regards to testifying on the obstruct charge: "At the close of the Crown's case you could call your client as you saw fit on the voir dire or on the trial. In other words, we could run it blended in terms of the Crown's case and you can call your client on the voir dire and I will make a decision on the voir dire and then at that point, depending on what that decision is, you can make your decision with respect to calling your client on the trial proper". The prosecution agreed and the defence was of the view that the manner of proceeding "sounds like a great suggestion."

[45] Unfortunately, when the accused showed up late again on December 12th, and without an apology when one was suggested from him, the trial judge opined that perhaps counsel should have a word with him about "contempt of court". That led to the recusal application that was ultimately allowed.

[46] When I consider the conduct of the prosecution and defence up to the first day of trial, it is the prosecution that raised concerns of delay in the face of defence inaction to obtain a trial in a timely manner. When the trial actually commenced, the first half of the day was occupied by an aborted application to amend counts by the prosecution and then a decision to withdraw the challenged counts. The remaining 2 ½ days were spent on defence applications. Regardless of whether these applications were "deliberate and calculated tactics employed to delay the trial" or "frivolous applications and requests" written of in Jordan, the Court and crown were ready to proceed and these application were not demonstrative of action by the accused consistent with a desire for a timely trial (Jordan, para 99, Morin, at p. 802).

Exceptional Circumstances

[47] For purposes of this application I will consider the presumptive ceiling in matters involving young persons to be something less than the 18 months set out in Jordan. Whatever the delay, it cannot be forgotten that the matter involves a young person. It is a consideration the defence can point to even if the delay is calculated as less than the presumptive ceiling. If the net delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on exceptional circumstances.

[48] Exceptional circumstances lie outside the Crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Coulter para 46 citing Jordan, para. 69).

[49] In my view, the delay from November 9, 2016 to December 12, 2016 can either be characterized either as defence–caused delay or exceptional circumstances in that they were outside of the Crown's control and unforeseen. The net delay should be reduced by a further 1 month for that time period and result in 4 ⅓ months being deducted from the total delay.

[50] The total delay I need to consider is 18⅔ months according to the prosecution and 20½ months according to the defence. 4⅓ of defence-caused delay or exceptional circumstances takes the net delay to 14⅓ months or 16 ⅙ months respectively. That net delay must be viewed in context as arising in a pre-Jordan environment.

[51] As the Supreme Court noted at para 92-94 of Jordan:

When this Court released its decision in Askov, tens of thousands of charges were stayed in Ontario alone as a result of the abrupt change in the law. Such swift and drastic consequences risk undermining the integrity of the administration of justice…We recognize that this new framework is a departure from the law that was applied to s. 11(b) applications in the past….Here, there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system, one being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. Further, this new framework creates incentives for both the Crown and the defence to expedite criminal cases. However, in jurisdictions where prolonged delays are the norm, it will take time for these incentives to shift the culture. As well, the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensure that the post-Askov situation is not repeated.

[52] In Coulter, (supra, para 105), the Court of Appeal highlighted the Supreme Court's caution in Jordan that "given the level of institutional delay tolerated under the previous approach, a stay of proceedings [where the remaining delay is] below the ceiling will be even more difficult to obtain for cases currently in the system" (para. 101). It also warns that the contextual approach to transitional cases is necessary to ensure that the post-Askov situation, where tens of thousands of cases were stayed in Ontario alone, is not repeated (Jordan, paras. 92-94) and that stays beneath the presumptive ceiling should be granted only in clear cases (Jordan para 83, Coulter para 54).

[53] Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise. Below the ceiling, a diligent, proactive Crown will be a strong indication that the case did not take markedly longer than reasonably necessary. (Jordan, para 112)

[54] The new framework also encourages the defence to be part of the solution. If an accused brings a s.11(b) application when the total delay (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) falls below the ceiling, the defence must demonstrate that it took meaningful and sustained steps to expedite the proceedings as a prerequisite to a stay. Further, the deduction of defence delay from total delay as a starting point in the analysis clearly indicates that the defence cannot benefit from its own delay-causing action or inaction (Jordan, para 113).

Conclusion

[55] Reviewing the entire chronology from charge to anticipated end contextually, I am of the view that regardless of whether I use the prosecution end date or defence end date, I find that the Crown has established that the delay and the exceptional circumstances that transpired put this case within the transitional exception provided for in Jordan such that the delay is not unreasonable. Put another way, the defence has failed to establish that T.B-E.'s s.11(b) rights have been violated and a stay of proceedings should result; accordingly, the application is dismissed.

Released: February 28, 2017

Signed: "Justice J. Bliss"