Ontario Court of Justice

Date: 2017-11-08 Court File No.: Newmarket 16-02198

Between:

Her Majesty the Queen

— AND —

Erhard Haniffa

Ruling on S.11(B) Application

Delivered November 8th, 2017.

Ms. Kellie Hutchison ............................................................................. counsel for the Crown

Mr. Boris Bytensky .......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] On June 13, 2017 Mr. Haniffa was convicted at trial of offences contrary to sections 172 and 286.1(2) of the Criminal Code. Total time from the date the Information was sworn to the verdict was 14 months and three weeks. Further proceedings to today's date result in a total time of 19 months and 27 days. The accused applies for a stay of proceedings to remedy an alleged breach of s.11(b). These reasons consider whether the R v Jordan 2016 SCC 27 presumptive ceiling applies to a post-verdict entrapment application and whether the overall delay in this case otherwise breaches s.11(b).

[2] The defence concedes the trial was scheduled in two phases in part to accommodate the defendant so that he would not have to fund preparation for an entrapment argument that might not be needed. The dates scheduled for the entrapment phase in August and then September were within the Jordan presumptive ceiling of 18 months. Ongoing discussions between counsel resulted in the entrapment application being adjourned while other legal issues were dealt with. A defence adjournment and disclosure application was heard along with Kienapple submissions on September 18th. A ruling on the adjournment application was provided the next day on September 19th. Evidence was completed on the entrapment application on September 20th. On October 2nd the court released the Kienapple ruling. The entrapment application and an added s.11(b) application were argued October 24th and the matter was adjourned to November 8th for rulings on both. The total time to this point falls just past the Jordan presumptive trial limit.

Presumptive Ceiling to the End of the Trial

[3] The Jordan presumptive ceiling applies to the end of the trial. The ceiling does not apply to post-trial proceedings such as sentencing. See: Jordan at para 49 and footnote 2, R v Patel 2017 ONSC 5827, R v Tsega 2017 ONSC 3090, R v Swanson 2017 ONSC 710.

[4] The Crown submits that the end of the trial means to the point of verdict. The defence submits that an entrapment application is more akin to a trial application than a sentencing proceeding and should be included in the Jordan ceiling. An entrapment application is a post-verdict application that does not involve a substantive defence related to the guilt or innocence of the accused – R v Mack, [1988] SCJ No 91.

[5] The Jordan presumptive ceiling applies to the time of verdict in a trial. There is nothing in Jordan or the principles underlying that framework that would support extending that trial framework to post-trial applications such as entrapment. Extending the framework in that manner without adjusting the presumptive ceiling might provide an incentive to bring post-trial applications in close cases simply to trigger a s.11(b) presumptive breach. I note that was not the case here with Mr. Bytensky's very thorough and necessary entrapment application.

Section 11(b) After Verdict

[6] Some of the interests protected by the s.11(b) right including the presumption of innocence do not apply after a finding of guilt. However, the 11(b) rights of a person convicted are not extinguished with the verdict. The accused retains an 11(b) right to be sentenced and to have other post-trial applications heard within a reasonable time – R v MacDougall, [1998] SCJ No 74.

The s.11(b) Overview

[7] Justice Moldaver instructs trial judges to step back from the minutiae of parsing each moment of delay and adopt a birds-eye view of the case – Jordan at para 91. Adopting this approach in this case shows a matter of some complexity that moved relatively quickly and efficiently through the trial system at every stage. The case progressed to a judicial pre-trial meeting within two months of the first appearance. Trial dates were set two weeks later after a second case management meeting. The trial was set in two phases at the request of both parties to leave a gap between a potential finding of guilt and an entrapment application if necessary. The trial was conducted in a focused fashion from June 5th to 8th and the verdict was rendered with written reasons one week later. The matter was adjourned to September dates for the entrapment phase but further discussion between counsel led to an adjournment of that issue and a disclosure application. There was also time spent considering a Kienapple issue that arose from the verdict. The evidence of the only witness on the entrapment hearing was completed. While the Jordan presumptive limit does not apply post-verdict, everything to October 20th was still within that timeframe.

[8] The matter was adjourned for submissions, but to limit the court time needed and thereby obtain an earlier date the court requested written submissions in the interim and both counsel provided very thorough submissions within that short time. The matter returned for limited reply argument on the entrapment issue and a new added s.11(b) issue on October 24th. Both the entrapment application ruling and this s.11(b) ruling were adjourned to be delivered 16 days later on November 8th, 2017.

[9] This was a matter of some complexity that involved several complicated legal and factual issues. With the assistance of two very experienced and hard-working counsel it has proceeded in a remarkably focused manner with quick return dates at each stage. The only delay of any significance beyond the wait for the multi-day trial was a planned gap for a post-trial application scheduled in that manner at the request of both parties. On the whole of the record this case has moved forward in an efficient and swift fashion, which is a credit to the efforts of both Ms. Hutchison and Mr. Bytensky. Considering the whole of the delay to this date I find no breach of the accused's s.11(b) right to a trial within a reasonable time.

Conclusion

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

Delivered: November 8th, 2017

Hon. Joseph F. Kenkel