Court Information

Ontario Court of Justice

Date: 2017-07-20

Court File No.: Brampton 3111998 16 265

Parties

Between:

Her Majesty the Queen

— and —

Mandeep Buttar

Before the Court

Justice: G.P. Renwick

Heard: 14 July 2017

Reasons for Judgment Released: 20 July 2017

Counsel

D. Galluzzo — counsel for the Crown

M. Engel — counsel for the defendant, Mandeep Buttar

Section 11(b) Charter Application

RENWICK J.:

Introduction

[1] Mandeep Buttar is charged with having the care and control of a motor vehicle with an excess blood alcohol concentration. The trial is set to begin on 08 August 2017, with an anticipated completion date of 10 August 2017. By way of a pre-trial motion, the Applicant seeks a stay for an alleged violation of his right to be tried within a reasonable period of time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982 ("the Charter").

[2] On 08 July 2016, the Supreme Court of Canada released its decision in R. v. Jordan, 2016 SCC 27, and created a new framework for the determination of this type of application. Our highest court has now established that the right to be tried within a reasonable time will usually rest below two presumptive ceilings: 18 months for trials held in provincial courts and 30 months for trials held in superior courts.

[3] Given that the Applicant's charge was already before the Court before the release of the Jordan decision, if the net delay remains presumptively unreasonable after deducting defence delay and accounting for exceptional circumstances, the Respondent may nevertheless defend the application by reliance upon the "transitional case" exception. The transitional case exception requires a contextual analysis to apply the new paradigm with "due sensitivity to the parties' reliance on the previous state of the law."

[4] The Applicant and Respondent agree that the total delay from the date of arrest until the anticipated completion of the Applicant's trial is 19.3 months.

[5] The Respondent seeks to defend the Application by requesting that the Court deduct a portion of the total delay due to the actions of the Applicant, and submits that the net delay is well within both the Jordan ceiling and the Morin guidelines.

[6] There were 16 court appearances from the Applicant's first appearance on 14 January 2016 until the date that the trial was set on 03 October 2016. The majority of these appearances were necessitated by the Applicant's request for the 9-1-1 call recording and to a lesser extent the McNeil reports concerning police witnesses. Early in the history of this matter each of these items had apparently been disclosed by the Crown to the agent for the Applicant's counsel, but this was not apparently known by counsel for the Applicant and subsequent requests were made and adjournments were sought to obtain the 'missing disclosure.'

[7] I have read each of the transcripts for the multiple unnecessary adjournments more than once. I do not propose to detail what was said by each party, but it will be obvious from my comments during the hearing of this Application that I am aware of the history of this matter and the reasons for the delay in setting this matter down for trial.

Position of the Parties

[8] The Applicant submits that his right to be tried within a reasonable period of time will be violated by the time his trial is heard. The Applicant relies upon the new framework established by the Jordan decision. In the written Application no defence delay was conceded. However, during oral argument, counsel for the Applicant was prepared to deduct two weeks of the total delay as solely attributable to the conduct of the defence. When the defence delay of two weeks is subtracted from the total delay in this matter, the delay is still almost 19 months and consequently, there is a presumption that the Applicant's Charter right to a trial within a reasonable time has been violated. The Applicant submits that the transitional case exception does not serve to attenuate the delay because the delay would be considered unreasonable if measured against the Morin guideline of 8 to 10 months.

[9] The Respondent submits that the matter progressed more slowly than the prosecution would have liked. Moreover, there were significant delays attributable solely to the conduct of the defence, which should be deducted from the total delay. After subtracting defence delay, the net delay is approximately 14 months and well within the Jordan requirements.

Analysis

[10] The first step under the Jordan analysis is to determine the total length of time between the date when the defendant was charged and the completion of his trial. In this case, it is agreed by the parties that the total length of time until the anticipated completion of the Applicant's trial is 19 months and 10 days.

[11] The next step is to subtract from the total delay any time periods which are "attributable to the defence." During argument, the Applicant accepted that two weeks of delay were attributable to requests to accommodate the schedule of the Applicant's counsel.

[12] If the net delay remains above the appropriate ceiling:

…then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

[13] If, after subtracting defence delay, the net delay is below the 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 [will] be rare, and limited to clear cases. [Emphasis in the original.]

[14] What is "defence delay?" Time periods that may be deducted from the total delay are those "where the defence conduct has "solely or directly" caused the delay." That said, not all delay caused by the defence should be counted as defence delay. Our Supreme Court has recently clarified defence delay in R. v. Cody, 2017 SCC 31, at paras. 29-30, and 32-33:

In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138).

[15] Based upon the transcripts of the proceedings to date, I find that the 9-1-1 recording and the McNeil report were disclosed to counsel, who acted as an agent for the Applicant's counsel, on 17 March 2017. I am prepared to make this finding on the following basis:

i. The transcript is clear that the Crown provided these items directly to the agent; there is no evidence to the contrary, nor even a suggestion that this did not occur as recorded in the court transcript;

ii. This same agent appeared on the following seven appearances (07, 21 April, 19 May, 09, 30 June, 21, 28 July 2016) and requested the same disclosure, without once mentioning that the Crown had purportedly given him these items on 17 March 2016; and

iii. On 21 July 2016, Ms. Fedak-Tarnapolsky advised the Court that these items had been disclosed to "counsel" (the same one who was addressing the matter) and the agent did not confirm or deny that representation; when Ms. Fedak-Tarnapolsky offered to copy the disclosure again on the lunch break, the agent asked for another one week adjournment.

[16] It is unfortunate that the Applicant's counsel was not provided this disclosure by the agent who retrieved it from the Crown Attorney. It is also unfortunate that counsel for the Applicant did not send a letter to the Crown Attorney's Office until 13 June 2016 to request the 9-1-1 recording for a second time. There are two additional points that must be observed in relation to the pace of these proceedings.

[17] Firstly, the Applicant appeared to be content with the numerous delays to obtain this important piece of disclosure. It was not until mid-June, some 5.5 months after the initial written request for the 9-1-1 recording, that counsel for the Applicant made a second request.

[18] Secondly, the prosecutor specifically requested Applicant's counsel to have a Crown pre-trial meeting on three occasions: 17 March, 09 June, and 21 July 2016. I have no doubt that had counsel for the Applicant agreed to this suggestion in March it would have been discovered that the 9-1-1 recording had been disclosed to the agent but never received by defence counsel. Unfortunately, because the Applicant's counsel was not prepared to meet with the prosecutor to discuss this case until the beginning of September, at least five months of delay was occasioned by the claims that there was outstanding disclosure.

[19] The Respondent submits that the defence delay amounted to five months. I am prepared to accept that it would have taken some time for Applicant's counsel to review disclosure provided on 17 March 2016, arrange a Crown pre-trial, and obtain instructions. These are not "illegitimate" steps as that language is used in Cody. From the end of April 2016 (six weeks after all of the disclosure sought was received), the Applicant should have been in a position to set the matter down for trial. However, that did not occur until 03 October, more than five months later. I find that the total defence delay is five months.

[20] Accounting for defence delay in this matter, the net delay is 14.3 months. Given that this amount of delay is well below the presumptive ceiling for trials in the Ontario Court of Justice, I need not address the Respondent's argument respecting the transitional case exception.

[21] Has the Applicant shown on a balance of probabilities that it took meaningful steps to expedite the proceedings and the prosecution has taken markedly longer than it should to conclude? Given the analysis above, I am not satisfied that the Applicant demonstrated any haste in moving the matter along. Consequently, I need not consider the second branch of the sub-ceiling test.

Conclusion

[22] Since last year, our Supreme Court attempted to change the culture of complacency in our courts and deter inefficient practises that increase the number of Court appearances which only serve to lengthen proceedings, exhaust limited Court resources, and perform no functional purpose. The Cody decision reminds us that "every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person's right to a trial within a reasonable time."

[23] For the reasons given above, the Application fails.

Released: 20 July 2017

Justice G. Paul Renwick