Court File and Parties

Ontario Court of Justice

Court File No.: Central East – Newmarket 4911-998-15-07680

Date: February 8, 2017

Between:

Her Majesty the Queen

— and —

Vithusan Jeyakanth

Before: Justice Marcella Henschel

Counsel:

• Jennifer Gleitman, counsel for the Crown
• Paula Locke, counsel for the defendant Vithusan Jeyakanth

Heard: January 19, 2017

Reasons for Judgment Released: February 8, 2017

Ruling on Section 11(b) Charter Application

HENSCHEL J.:

I. Introduction and Overview

[1] The Applicant, Mr. Jeyakanth, is charged with operating a motor vehicle Over 80 contrary to section 253(1)(b) of the Criminal Code. He has applied for a stay of proceedings under section 24(1) of the Charter on the basis that his right under section 11(b) of the Charter to be tried within a reasonable time has been violated. The decision in this case requires consideration of the new framework for determining s.11(b) applications laid down by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 and R. v. Williamson, 2016 SCC 28, both released on July 8, 2016.

[2] The Applicant conceded that the anticipated length of time for the matter to be tried is less than the 18 month presumptive ceiling identified in Jordan beyond which delay will be presumptively unreasonable for trials in the Ontario Court of Justice. The Applicant submits that the delay should nonetheless be found to be unreasonable because:

i.) the Applicant took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and

ii.) the case took markedly longer than it reasonably should have.

The Applicant submits that as a transitional case, the information having been laid prior to the release of Jordan, some consideration of the Morin factors including prejudice is required and supports a finding that the delay was unreasonable.

[3] On January 19, 2017 I heard and dismissed the application with reasons to follow. These are my reasons.

II. The Jordan Framework for Analysis

[4] In Jordan the Supreme Court of Canada established a presumptive ceiling of 18 months for cases going to trial in the provincial court to be heard. The analysis required by Jordan begins with calculating the "total delay" from the charge to the actual or anticipated end of trial. Once that period is determined any delay attributable to the defence must be subtracted in order to determine the period of "net delay". Delay will be attributable to the defence where there has been an explicit 11(b) waiver for a specific period or where delay is caused solely or directly by the conduct of the defence. While the defence cannot benefit from its own delay-causing conduct, defence actions legitimately taken to respond to the charges do not constitute defence delay. [1]

[5] Where the "net delay" from the charge to the actual or anticipated end of trial exceeds 18 months, then the delay is presumptively unreasonable. [2] To rebut this presumption the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay must follow. [3] If the "remaining delay", after defence delay and any period of delay attributable to exceptional circumstances is subtracted, is less than 18 months, the onus is on the defence to show that the delay is unreasonable. To do so the defence must establish that:

i.) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and

ii.) the case took markedly longer than it reasonably should have.

The Supreme Court indicated that it expected "stays below the presumptive ceiling to be rare and limited to clear cases". [4]

Transitional Cases

[6] The Supreme Court recognized that for transitional cases, those in the system at the time that the Jordan decision was rendered, the Jordan framework was to be applied flexibly and contextually with sensitivity to the parties reliance on the previous state of the law. This requires consideration of whether delay would have been considered unreasonable under the Morin framework. [5]

[7] In transitional cases with periods of delay below the presumptive ceiling the failure of the defence to establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings is not determinative. On this point the Supreme Court stated the following:

The second qualification applies to 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. However, 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 still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial. [6] [emphasis added]

[8] In R. v. Coulter, 2016 ONCA 704, the Court of Appeal observed that in transitional cases in which remaining delay falls below the presumptive ceiling, the criteria of defence initiative, although relevant, is not dispositive of the s. 11(b) application. In my view, while absence of defence initiative is not determinative of the application, in cases below the ceiling where the record establishes action or inaction by an accused inconsistent with a desire for a timely trial this is a factor that favours a finding that that the delay was not unreasonable.

III. Procedural History

[9] Both the Criminal Code Information and a Provincial Offences Act Information were laid on September 8, 2015. The Applicant's trial was scheduled for February 1 and 2, 2017, a period 16 months and 25 days from the date the information was laid.

[10] As of the Applicant's first appearance on September 18, 2015 he had retained counsel, at least for the initial stages of the proceedings, and the Crown provided initial disclosure. The matter was adjourned 15 days to October 2, 2015.

[11] On October 2, 2015 Mr. Locke appeared and indicated that he would hold a resolution meeting with the Crown that day. The matter was adjourned to October 23, 2015 to allow counsel to obtain instructions. The record is not clear as to whether the proposed resolution meeting took place on October 2, 2015.

[12] The adjournments for counsel to review initial disclosure, and the initial request on October 2, 2015 for counsel to get instructions were both necessary steps legitimately taken by the defence to respond to the charges. [7]

[13] On October 23, 2015 counsel appeared and indicated that he had scheduled a resolution meeting with the Crown on the earliest date available, November 18, 2015. The Crown advised that, rather than waiting for the meeting until November 18, an in-person resolution meeting could take place that day. This was a positive step initiated by the Crown to expedite the matter. Counsel advised he would conduct the resolution meeting that morning and requested an adjournment for 14 days to November 6, 2015. The record makes clear that a resolution meeting in fact took place either that day or at some point prior to November 6, 2015. [8] On November 6, 2015 an agent for counsel requested that the matter be adjourned for a period of 2 weeks for instructions to be obtained from the Applicant regarding how he wished to proceed. The matter was adjourned to November 23, 2015.

[14] Although it is unclear why no resolution meeting was held on October 2, or if one was held why a second meeting was required on October 23, 2015, I am satisfied that the period between October 23 and November 23, 2015 for counsel to meet with the Crown and obtain instructions from his client continued to be necessary steps taken by the defence to respond to the charges.

[15] On November 23, 2015 an agent appeared for counsel and again requested that the matter be adjourned "in order to receive instructions from the client as well as potentially ask for a resolution". The matter was adjourned for 23 days to December 16, 2015. I find, with some hesitation, that this additional three week adjournment was associated with necessary defence preparation time and will not be treated as defence delay. [9]

[16] On December 16, 2015 an agent for counsel appeared and again confirmed that a resolution meeting had taken place. She advised that counsel had not been able "to get any instructions as of yet" and requested that the matter be adjourned for a further month. Justice Johnston granted the adjournment to January 18, 2016, a period of one month and two days, but ordered that it was pre-emptory on the defence to set a date for trial on January 18, 2016. By this point a further adjournment to obtain instructions was unreasonable and should be treated as defence caused delay. The Applicant had now had almost two months since the counsel pre-trial was held to provide instructions. There is no suggestion that the Court or the Crown were in any way responsible for this delay, or that they were not prepared to move the case forward. While I recognize there may be many reasons that may impact the ability to finalize instructions, the delay at this point was no longer reasonable and was attributable to the defence. In addition the Applicant's conduct was not consistent with a sustained effort to move the case forward.

[17] On January 18, 2016, counsel advised that they had met with the Applicant before Christmas and that "he was considering his options". Counsel stated that they did not have a firm commitment as to whether to set a trial date or not. As a result the Applicant again requested that the matter be adjourned.

[18] The Crown advised that a pre-trial would be required prior to setting a trial date because the trial estimate was one day. At that time in York Region the court required that a judicial pre-trial be held for Over 80 prosecutions where the trial estimate was less than two days because experience had shown such cases were rarely completed within a single day. Insufficient trial estimates lead to difficulties with trial scheduling, fragmented trials, and delay. As noted in R. v. Tran, 2012 ONCA 18, a pre-trial is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Counsel advised that he had not yet been fully retained for the trial, but was retained for a pretrial. As a result the matter was adjourned four weeks to February 18, 2016 for the purpose of a judicial pre-trial.

[19] As per Jordan, because the judicial pre-trial was required by the court this period of delay will not be treated as defence delay. In Jordan the court held that periods of time during which the court and the Crown are not ready to set a trial date cannot constitute defence delay, even if defence counsel is not ready to set a trial date. [10] The delay necessary to set and hold a pre-trial was a legitimate and necessary step in the proceedings. Prior to Jordan, this period would have been treated as inherent delay.

[20] On February 18, 2016 the judicial pre-trial was held. Following the pre-trial counsel, rather than setting a trial date, requested a five week adjournment to March 24, 2016 "to get instructions". Given that the pre-trial was scheduled simply to confirm the trial time estimate, [11] this is a period of defence delay. It is not conduct consistent with "a sustained effort to expedite the proceedings". The Crown and the Court were ready to set a trial date on February 18, 2016, and the delay on this date is solely attributable to the defence.

[21] On March 24, 2016, five weeks after the pre-trial, counsel appeared and indicated that he had not yet obtained instructions from his client regarding whether the trial would take two days. Counsel advised the court that he had inadvertently failed to diarize the matter for March 24, 2016. As a result, the matter was adjourned to April 7, 2016. The Applicant concedes that this 14 day period was defence caused delay.

[22] On April 7, 2016 the trial dates of February 1 and 2, 2017 were set. These were the earliest dates available for a two day trial. The transcript makes clear that had a one day trial been set it could have been scheduled on August 17, 2016, 5.5 months earlier. The delay from the date the trial was scheduled to the trial dates, February 1 and 2, 2017 is 9 months and 22 days. Attached at Appendix A is a chart summarizing the relevant periods.

IV. Analysis and Conclusions

[23] The "total delay" from the date of the charge to the anticipated end of the trial is 16 months and 25 days. There was no explicit waiver of 11(b) at any point by the Applicant. The following periods of delay are attributable to the defence and must be subtracted from the total delay to determine the "net delay":

i.) The 1 month and 2 day period between December 16, 2015 and January 18, 2016.

ii.) The 1 month and 6 day period between February 18, 2016 and March 24, 2016; and

iii.) The 14 day period between March 24, 2016 and April 7, 2016.

This is a combined period of 2 months and 22 days. As a result the "net delay" in this case is a period of 14 months and 3 days, a period of delay below the presumptive ceiling.

[24] The defence has not established that the 14 month and 3 day period in this case was unreasonable delay and as a result the 11(b) application must fail. The defence has not shown that:

i.) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; or that

ii.) the case took markedly longer than it reasonably should have.

Meaningful Steps that Demonstrate a Sustained Effort to Expedite

[25] On October 23, 2015 a Crown pre-trial was held. After that the matter was adjourned 6 times over a period of 5 months. During that time the Applicant did not instruct counsel on how he wished to proceed and did not fully retain counsel until a trial date was set on April 7, 2016. While, as noted above, defence initiative is not determinative, I find that the Applicant's conduct between November 23, 2015 and April 7, 2016 not only failed to demonstrate initiative, but also constituted inaction inconsistent with the stated desire for a timely trial. This is a factor, while not-determinative, that favours a finding that the overall delay was not unreasonable.

The Period Did Not Markedly Exceed Reasonable Time Requirements

[26] Because absence of meaningful steps to expedite the proceedings in a transitional case is not fatal to a defence application, the primary issue is whether the case took markedly longer than it reasonably should have. I have concluded that the case did not markedly exceed reasonable time requirements. The reasonable time requirements derive from a variety of factors including the complexity of a case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings. [12]

[27] This case is a typical Over 80 prosecution. While it is not a complex case, there are multiple alleged breaches of the Charter. These motions require additional preparation time, additional time for the evidence to be heard, and additional time for argument and judgment. Such motions lengthen the period of time required for trial.

[28] The case is being tried in a very busy high volume jurisdiction. While no specific evidence was called in respect of comparative trial times for similar cases in this jurisdiction I am satisfied that the length of time for this case to come to trial is not markedly longer than it reasonably should have been in light of the relevant local and systemic circumstances. It did not markedly exceed the time that other similar cases take to come to trial. [13]

[29] This was not a case where failure of the Crown to provide disclosure caused delays. It is not a case like R. v. DeSouza, 2016 ONCJ 588 at para. 10, relied upon by the Applicant, wherein the accused was required to appear on three trial dates because the matter was not reached and was delayed due to the unavailability of the Crown.

[30] The Applicant argues that I should find that the case took markedly longer than it should have because it was unreasonable for a one day trial to be available within 4 months and 10 days, and a two day trial to take 5 additional months to schedule. While it is unfortunate that a second day of trial time occasioned 5 additional months of delay, I am not satisfied that as a result the delay has become unreasonable. Trial scheduling is complex, and it is not surprising that one day trials can more readily be accommodated.

[31] Unlike DeSouza, where there was a finding that the Crown had failed to seek to move the case forward, in this case the Crown was proactive. On October 23, 2015 the Crown took steps to expedite the matter by arranging for the counsel pre-trial to take place that day rather than 25 days later on November 18, 2015. On January 18, 2016 when counsel sought to simply adjourn the matter to get instructions from the Applicant the Crown proposed setting the judicial pretrial to move the matter forward. The Crown has done its part to ensure that the matter proceeded expeditiously. None of the delays were caused by the Crown.

Would The Case Be Stayed under the Morin Framework

[32] I have concluded that under the Morin framework the delay would not be found to be unreasonable. This is a further factor which supports the conclusion that the case did not markedly exceed reasonable time requirements.

[33] The Morin framework required the following factors to be taken into account:

i.) Length of the delay.

ii.) Any waiver of time periods by the accused.

iii.) The reasons for the delay,

a. The inherent time requirements of the case.

b. The conduct of the accused or delay attributable to the accused.

c. The conduct of the Crown or delays attributable to the Crown.

d. Systemic or institutional delays.

e. Any other reasons for delay; and

iv.) Any prejudice to the accused. [14]

[34] In Morin the court recognized that there were inherent time requirements for a case which may include intake procedures, retention of counsel, provision of disclosure, and pre-trial conferences. [15] A reasonable intake period was considered to be neutral in the delay calculus. In this case I find that the three month period between September 8 and December 16, 2015 would have been considered part of the inherent requirements of the case, and would have been treated as neutral intake period. I also find that the one month period between January 18, 2016 and February 18, 2016 for the pretrial to be scheduled and held would also have been treated as part of the inherent time requirements of the case. While a total period of 4 months is a long period for intake, having read the transcripts in this case it would be unfair to treat the leisurely manner in which the matter was proceeding as the responsibility of the Crown. The Crown was doing its part to seek to move the matter forward.

[35] As noted above, the periods between December 16, 2015 and January 18, 2016; February 18, 2016 and March 24, 2016, and March 24, 2016 and April 7, 2016 would have been treated as defence delay under the Morin framework.

[36] As a result, all of the delay between September 8, 2015 and April 7, 2016 would have been treated as either neutral periods, or periods of defence delay.

Institutional Delay under the Morin Framework

[37] The transcripts show the Applicant was not prepared to set a trial date until April 7, 2016. Under the Morin framework institutional delay did not begin to run until counsel was in a position to proceed with the trial. [16] The period of institutional delay as per Morin would have been at most 9 months and 22 days. [17] In Morin the court set eight to ten months as a guideline for institutional delay in the provincial court. This guideline was in addition to time required for the inherent time requirements of a case, defence delay, and reasonable institutional delay. [18] I find that the period of institutional delay of 9 months and 22 days in this case falls within the Morin guidelines. Notably, in Yen the Court of Appeal found that a period of 10 months of institutional delay for a similar case in York Region was not unreasonable, although at the outer limits of reasonable delay for a two day impaired driving trial. [19]

Prejudice

[38] In the Jordan framework prejudice no longer plays an explicit role in the 11(b) analysis. [20] In Jordan the Court observed that prejudice has a close connection to defence initiative and that accused persons who are truly prejudiced can be expected to move the case along. Given this is a transitional case I have considered the presence or absence of prejudice as a factor relevant to the determination of whether the case took markedly longer that it reasonably should have. [21]

[39] The applicant did not experience any of the more significant types of prejudice that may be caused by delay such as pre-trial detention, or restrictive bail conditions. There is no evidence that his ability to mount a defence was affected due to unavailability of witnesses or lost or degraded evidence. I accept that the Applicant experienced ongoing stress due to the outstanding charges. He is a young engineering student living with uncertainty regarding whether the Professional Engineers of Ontario may refuse his application to become a civil engineer due to the outstanding criminal charge. However, the fact of being charged was the primary cause of this stress. I accept that delay has prolonged and exacerbated the stress he has experienced. However, despite this ongoing stress the Applicant was not proactive in moving the matter forward, and his actions were more consistent with complacency. Such inaction is difficult to reconcile with the degree of prejudice the Applicant indicates he was experiencing due to delay. I find that the prejudice suffered as a result of delay was minimal and does not support the conclusion that the trial took markedly longer than it reasonably should have.

[40] I am satisfied that had the matter been considered solely utilizing the Morin framework for analysis that the finding would be the same, the delay was not unreasonable and did not violate the appellant's section 11(b) right to be tried in a reasonable time.

V. Conclusion

[41] In Jordan the Supreme Court emphasized that determining whether the time a case has taken to be tried markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. [22]

[42] A step back from the minutiae reveals the following: the Crown provided disclosure in a timely manner. The Crown was available to hold counsel pre-trials in a timely manner. The Crown was ready to set trial dates when the Applicant was not. The Applicant did not fully retain counsel in a timely manner, delayed making decisions and providing instructions, and this inaction delayed a trial date being set. Once the applicant was ready to set a trial date on April 7, 2016 one was set 9 months and 22 days later. This period of institutional delay was not markedly longer than it reasonably should have been. The Applicant suffered minimal prejudice. The case would not have been stayed under the former Morin framework of analysis, and should not be stayed on the basis of the new framework laid down in Jordan.

[43] The net delay is less than 18 months. As a result the delay is presumptively reasonable. Although this factor is not determinative, the applicant has not demonstrated that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings. The Applicant has not established that the case took markedly longer than it reasonably should have. The application to stay the charges is dismissed.

Released: February 8, 2017

Signed: "Justice Marcella Henschel"

Appendix A

Date	Events	Remand Date	Delay Time	Running Total
Sept. 8, 2015	Information Sworn	Sept. 18, 2015	10 Days	10 Days
Sept. 18, 2015	First Appearance Disclosure Provided	Oct. 2, 2015	15 Days	25 Days
Oct. 2, 2015	Second Appearance – further disclosure provided	Oct. 23, 2015	21 Days	46 Days
Oct. 23, 2015	Resolution Meeting Held	Nov. 6, 2015	14 Days	60 Days
Nov. 6, 2015	Adjourned for Instructions	Nov. 23, 2015	17 Days	77 Days
Nov. 23, 2015	Adjourned for Instructions	Dec. 16, 2015	23 Days	100 Days
Dec. 16, 2015	Adjourned for Instructions	Jan. 18, 2016	33 Days *DEFENCE DELAY	133 Days
Jan. 18, 2016	Adjourned for instructions, and for a Judicial Pretrial	Feb. 18, 2016	31 Days	164 Days
Feb. 18, 2016	Judicial pretrial conducted, adjourned for Instructions	March 24, 2016	35 Days *DEFENCE DELAY	200 Days
March 24, 2016	Adjourned for Instructions	April 7, 2016	14 Days *DEFENCE DELAY	214 Days
April 7, 2016	Trial Date Set	Feb. 1 and 2, 2017	9 months and 26 days	16 months and 25 days

TOTAL DELAY – DEFENCE DELAY = NET DELAY = 14 MONTHS and 3 DAYS

Footnotes

[1] Jordan at paras 47, and 66; R. v. Coulter, 2016 ONCA 704 at paras. 34-41.

[2] R. v. Manasseri, 2016 ONCA 703 at para. 306; Jordan at para.47.

[3] Jordan, at para. 47 and 68.

[4] Jordan, at para. 48; and para. 56; Coulter, at paras. 38-41 and 53.

[5] Jordan at para.94; Coulter, paras. 88-89.

[6] Jordan, at para. 99.

[7] Jordan, at para. 65.

[8] In the Transcript of Proceedings of November 6, 2015 agent for counsel confirmed that a pre-trial resolution meeting had been held.

[9] R. v. J.M., 2017 ONCJ 4, at paras. 68-72.

[10] Jordan at para. 64.

[11] The comments of the pre-trial Judge contained in the March 24, 2016 transcript confirm that the focus of the pre-trial on February 18, 2016 was the accuracy of the trial estimate.

[12] Jordan, at para. 87.

[13] See for example R. v. Smyth, 2016 ONCJ 620 at para. 24 which was also a two day Over 80 prosecution. The period from the date the trial was set to the initial trial date was 9 months. The court noted that in this jurisdiction a total period (without deductions) from charge to trial of 12 to 15 months is not unusual. See also R. v. Yen, 2014 ONCA 210.

[14] R. v. Morin, [1992] 1 S.C.R. 771 at para. 31.

[15] Morin, at paras. 41-43; R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.), at 34-40. R. v Khan, 2011 ONCA 173, [2011] O.J. No. 937 (C.A.) at para. 53.

[16] Tran, at para. 32; R. v. Brissett, 2017 ONSC 401 at para. 38.

[17] On a Morin analysis the institutional delay would likely have been assessed at less than 9 months and 22 days because counsel required time to prepare and serve the Charter applications. In addition counsel did not indicate their availability for trial. It is unlikely counsel would have been immediately available to start the trial. In Tran the Court of Appeal made clear that institutional delay did not commence until counsel was ready to proceed to trial and the court is unable to accommodate. See Tran at paras. 32-40.

[18] In Jordan, the presumptive ceiling incorporates additional time to account for inherent time requirements of the case Jordan, at para. 53, and at p. 83.

[19] R. v. Yen, 2014 ONCA 210, Smyth, at para. 24.

[20] Jordan, at para. 54 and 109. Although no longer an express analytical factor it underpins the presumptive ceiling. Once the ceiling is breached, the court presumes that accused persons have suffered prejudice to their Charter protected rights.

[21] In Jordan, at para. 96 the Court held that prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable.

[22] Jordan, at para. 91.