WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: December 2, 2017

Court File No.: GUELPH Information # 161159, 161149, 160098

Between:

Her Majesty the Queen

— AND —

C.S., P. F.-G., and D.R.

Before: Justice M.D. McArthur

Heard on: November 30, 2017

Ruling and Reasons on Charter Application released on: December 2, 2017

Counsel

Stephanie Turner — counsel for the Provincial Crown

Don Doney — counsel for the Federal Crown

Joseph Markson and Kate Robertson — counsel for the defendant, C.S.

Amanda Ross — counsel for the defendant, D.R.

Ranney Hintsa — counsel for the defendant, P. F.-G.

Decision

McARTHUR, M.D. J.:

Overview

[1] The central issue in this case is whether the Crown has justified the narrowly permitted circumstances where the delay is presumptively unreasonable. The delay in this case from the date of the arrest of the defendants to the date of the anticipated end of the evidence in the trial is approximately 20 ½ months. The defendants have made an application under s. 11(b) of the Charter alleging that their rights to a trial within a reasonable time have been breached and request a stay of the charges.

[2] Both Provincial and Federal Crowns acknowledge that the delay in this case is presumptively unreasonable and submit that the delay is justified with reference to the complexity of the case and, alternately, by the transitional exceptional circumstances.

[3] For the following reasons, I conclude that there is neither particular complexity in the nature of the evidence or in the nature of the issues that required an inordinate amount of trial time or preparation time in this case nor transitional exceptional circumstances that apply. The delay is therefore unreasonable. The application is granted and the charges against all of the applicant-defendants will be stayed.

Factual Background

February 26/27, 2016

[4] The allegations in this case arise out of events on February 27th, 2016. There are three complainants with various allegations involving the defendants on an occasion at a specific residence of one or more of the defendants. None of the complainants knew any of the defendants prior to the February 26th, 2016 events.

[5] The complainants attended a party that evening where the defendants resided or had otherwise attended. Various activities are alleged to have occurred over a period of time that evening.

March 23 to October 18, 2016

[6] There was an eventual police investigation conducted which soon concluded before the end of March 2016. Numerous charges were laid against 4 individuals. The defendant C.S. was arrested on March 23, 2016 and released on a promise to appear and undertaking to an officer. The defendant D.R. was arrested on March 30, 2016 and released on a recognizance of bail. The defendant P.F.-G. was arrested on March 31, 2016 and released on a promise to appear. All charges against one other individual were withdrawn within the last 2 months prior to the hearing of this application leaving the 3 remaining defendants-applicants.

[7] Initially, there were 27 counts involving the various defendants. After a pretrial proceeding approximately one week ago, a number of charges involving these defendants were withdrawn.

[8] The defendant C.S. faces Criminal Code offences of sexual assault, sexual interference and invitation to sexual touching involving one individual complainant. The defendant P.F.-G. faces Criminal Code offences of sexual assault, sexual interference and invitation to sexual touching involving another individual complainant as well as the offences of obstruct justice, 2 drug offences involving cocaine and amphetamine and a provincial liquor offence. The defendant D.R. faces Criminal Code offences of sexual assault, sexual interference and invitation to sexual touching involving 3 complainants, two of whom are the same complainants in relation to charges against the other defendants mentioned above. D.R. also faces 1 drug offence involving marijuana and 1 provincial liquor offence.

[9] There was generally nothing unusual, remarkable or noteworthy that occurred between April 26, 2016 being the first appearances of the defendants and the date of the first judicial pretrial. Disclosure, which constituted an estimated 500 pages and related dvd's was made available during this period and, in any event, by August 26, 2016 when a judicial pretrial date was scheduled for October 18, 2016. On that date, the judicial pretrial was conducted and counsel for the defendant C.S. attempted to set dates but was unable to do so by the trial coordinator.

October 18, 2016 to March 28, 2017

[10] Upon the request of counsel for C.S. in particular, there was a further judicial case management telephone conference amongst Crowns and counsels on November 1st. Court appearances then occurred on November 22 and on December 13 when the Provincial Crown, not Provincial Crown counsel on this application, requested more time since there appeared to be an issue as to one of complainant's availability which affected whether the Crown was proceeding in certain cases.

[11] A further judicial pretrial was conducted on February 27, 2017. On that date, it was confirmed on the record by the presiding pretrial judge that s. 11(b) issues were alive and still in issue. The case was adjourned to March 10, 2017 to set pretrial motions and trial dates. On that date, pretrial motions were scheduled for September 18 and 19, 2017. The case was adjourned to March 28, 2017 to set the trial date since the court was not permitting or did not have available trial dates in November. The trial was then ultimately set for December 4 to 8, 11 and 12.

September 18 and 19, 2017

[12] The pretrial motion took place as scheduled before me with respect to third party records and an order was made disclosing approximately edited 150 pages. The remaining application was adjourned to the commencement of this trial. None of these defence applications were frivolous and they have been completed within the time frames established.

[13] Overall, I find that the conduct of the defendants and their counsel throughout all periods and through to the current application was appropriate, timely, diligent and reasonable.

[14] In addition, it was raised by this court in submissions that it was reasonable to have expected that a decision in this case would not have been made immediately upon the completion of evidence at trial and submissions on behalf of the parties. This fact will have no real impact in the circumstances of this case. It is sufficient to note that other provincial courts have determined that the time to deliberate and reach a verdict should otherwise be included in the delay calculation. See R. v. J.M., 2017 ONCJ 4, and R. v. Formusa, 2017 ONCJ 236.

Analysis

Overview

[15] On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27 and R. v. Williamson, 2016 SCC 28, [2016] S.C.J. No. 28, where the court established a new framework to be applied in relation to s. 11(b) of the Charter. In cases before the Ontario Court of Justice, the new framework is an 18 month ceiling beyond which the delay is presumptively unreasonable unless the Crown can establish that the circumstances are particularly complex.

[16] The Ontario Court of Appeal has since summarized the approach required by the new framework in R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 at paragraphs 34 to 40:

Step 1: Calculate Net Delay

(a) Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial.

(b) Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from:

(i) Defence Waiver: Clear and unequivocal defence waiver of his/her s. 11(b) rights;

(ii) Defence-Caused Delay: Delay caused solely by the conduct of the defence, including delay unavailability for trial when the court and the crown are available.

Step 2: Determine the Presumptive Ceiling

(a) For cases in provincial courts, the Presumptive Ceiling is 18 months.

(b) For cases in superior courts, or cases tried in provincial courts after a preliminary inquiry, the Presumptive Ceiling is 30 months.

Step 3: Calculate Remaining Delay, if Necessary

(a) If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were a) reasonably unforeseen or unavoidable, and b) not able to be reasonably remedied once they arose (i.e. sudden medical emergencies), which results in the Remaining Delay.

(b) If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events.

Step 4: Remaining Delay Greater than Presumptive Ceiling

(a) Where the Remaining Delay is still greater than the Presumptive Ceiling, it is presumed that the delay is unreasonable.

(b) The Crown may only rebut this presumption of unreasonable delay by establishing that the case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.

(c) Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.

Step 5: Net Delay or Remaining Delay Less than Presumptive Ceiling

(a) Where the Net Delay or Remaining Delay is less than the Presumptive Ceiling, it is presumed that the delay was reasonable.

(b) In order to establish that the delay under the Presumptive Ceiling was unreasonable, the accused must show that:

(i) he made a sustained effort to expedite the proceedings; and

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

Where the accused establishes both of these elements, the charges will be stayed. Charges will only be stayed below the Presumptive Ceiling in clear cases.

[17] This new framework applies to this case as with any case in the system when R. v. Jordan was decided. For such cases, the determination of whether exceptional circumstances exist will take into account the parties' reasonable reliance on the law as it previously existed before R. v. Jordan. See paragraph 96 in R. v. Jordan.

[18] The Supreme Court of Canada also recently released its judgment in R. v. Cody on June 16, 2017. The court affirmed R. v. Jordan and went on to deal with particularly complex cases and indicated at paragraphs 63 and 64 as follows:

[63] The second category of exceptional circumstances is concerned with particularly complex cases. The presumptive ceilings set in Jordan already reflect the "increased complexity of criminal cases since Morin", including the emergence of "new offences, procedures, obligations on the Crown and police, and legal tests" (Jordan, at paras. 42 and 53). However, particularly complex cases may still justifiably exceed the presumptive ceilings.

[64] Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case's complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80). A particularly complex case is one that "because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time" (Jordan, at para. 77 (emphasis deleted)). When determining whether a case's complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case's overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79).

[19] In this case the total delay is 20 ½ months. There is no defence waiver or defence-caused delay.

Exceptional Circumstances

Discrete Events

[20] Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases.

[21] There were no discrete events in any event that were reasonably unforeseen or unavoidable. The remaining delay of 20 ½ months is above the presumptive ceiling of 18 months.

Particular Complexity

[22] As mentioned, the Supreme Court of Canada clearly indicated in R. v. Cody that the presumptive ceilings established in R. v. Jordan already reflected the increased complexity of cases in R. v. Morin including new offences, procedures and obligations. Particular complexity in this context requires a qualitative, not quantitative, analysis and is an "exceptional circumstance". This must be the starting point. In addition, R. v. Jordan at paragraph 77, a particularly complex case is one that "because of the nature of the evidence or the nature of the issues requires an inordinate amount of trial or preparation time."

[23] The facts in R. v. Cody which were found not to amount to particular complexity involved two counts of possession for the purpose of trafficking, one count of each of possession of a prohibited weapon and possessing a weapon when prohibited. Cody was not the primary target of the investigation and was arrested that disclosed a half kilogram of cocaine and a stun gun in his car. The disclosure involved over 20,000 pages on two CD's. The trial was set for 5 days. The court found that there was extensive disclosure but this did not qualify as a particularly complex case when the balance of the proceeding appeared to be relatively straightforward.

[24] In R. v. Live Nation Canada Inc., 2016 ONCJ 735, Nakatsura, J. discussed complexity in this context which I adopt with emphasis added as follows:

[39] In my opinion, complexity as an exceptional circumstance is a different matter. Under the previous Morin framework, the complexity of a case was assessed under the reasons for the delay. It was a factor in determining how a period of delay should be characterized and who should be responsible for it. Complexity of a case impacted upon the length of the trial, the amount of time required to prepare, the institutional resources used, and the potential for adjournments and continuations. Complexity factored into the length of justifiable delay during each discrete period of the proceedings and whether the delay could be subtracted from the operative delay which was usually institutional or Crown delay.

[40] While complexity as an exceptional circumstance in the Jordan framework requires consideration of many of the same things as under the Morin analysis, it seems to me that it still remains a fundamentally distinct analytical concept. When complexity was considered in the Morin framework, it was generally viewed as a factor that extended justifiable time periods. As an aside, I have always found that there was a degree of arbitrariness in assigning specific periods of time as permissible due to the inherent nature of the case. For example, a judge could simply categorize a period of time, whether it be three months or six months, as what was required before the parties were ready to set the case down for trial without any detailed reason for the measure. Philosophically, Jordan moves away from such arbitrary assignments of time for differing categorizations of delay. A finding of particular complexity under Jordan is a complete justification for s. 11(b) purposes. As a concept, complexity is no longer used to carve out discrete periods of time from the calculus. Complexity as an exceptional circumstance should therefore consider the whole of the case and trial proceedings. It likely requires a higher threshold for its establishment than under the Morin test.

[25] The case of R. v. Albinowski et al, 2017 ONSC 2260, was also considered particularly complex. In that case, Justice Leroy found that the case did not fall into the category of particular complexity. In that case, the fact that an evidential record was substantial, the legal issues were straightforward. In this case, the Crown cannot make out the evidentiary basis or issues or both required an inordinate amount of time of trial. Here, the case was set for five days of trial and there were three principal witnesses for the Crown. The issues and the proceeding were straightforward. Given the issues in the case of consent and the taking steps by the defendants to ascertain the age of the complainants, some defence evidence was likely to occur. There were no other trial issues to determine beyond these factual issues. The Crown evidence was going to be virtually the same context and circumstances for these defendants.

[26] I find that there is no delay attributed to the defence or their counsel in this case. The delay occasioned here remains unexplained and there has been no demonstrated plan, strategy or protocol that appears to have been adopted and implemented in this case to address the case as it was proceeding.

[27] Further, another feature that requires comment in this case is that of charges and the narrowing of charges. As I have heard, a number of charges in this case were narrowed by Crown counsel just prior to the trial from some 27 counts. Such an action is symptomatic of a case management approach that is neither desirable nor effective. It is also an action that tends to demonstrate a lack of complexity and serious pro-active attention to the case.

[28] Although this case is one generally regarded as taking longer in the Provincial Court in this jurisdiction, it is not a particularly complex case in the sense under R. v. Jordan. It neither has the hallmarks of a particularly complex case as referred to in paragraph 77 of R. v. Jordan. Disclosure was not voluminous, there are not a large number of witnesses, there is no expert evidence, no charges over a long period of time, no complicated issues beyond the factual determinations to be made from the evidence. The fact that the defendants were jointly charged does not in any way take this case into complexity.

Transitional Exceptional Circumstances

[29] I am mindful of the direction in R. v. Cody at paragraph 71 that:

[71] When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).

[30] In this case, the general preliminary intake process including most of the disclosure and initial attendances had occurred when R. v. Jordan was decided on July 8, 2016. Some disclosure had yet to be provided and subsequently judicial pretrials were then scheduled and held in October. Unlike R. v. Cody where the entire proceedings to trial pre-dated R. v. Jordan, only at most 4 months of the entire 20 month period pre-dated R. v. Jordan in this case. The parties and particularly the Crown had sufficient time to adapt to the new regime. In these circumstances, the transitional exceptional circumstances do not apply here.

[31] Even if the transitional exceptional circumstances applied, the Crown is not able to show that there is sufficient net delay in this case based on reliance of the previous state of the law under R. v. Morin. In submissions, the Crown conceded properly that even given the most generous allowances, there would still be a 14 month delay. This also accords with the observation in R. v. Cody at paragraph 74 that the Crown will rarely, if ever, be successful in justifying the delay as a transitional exception under the Jordan framework.

Summary and Disposition

[32] Timely trials are both possible and constitutionally required. Our Supreme Court of Canada has provided the bright line. The management of charges and cases takes on particular significance in view of R. v. Jordan and R. v. Cody. If anyone has suffered under any illusions, it is abundantly clear that we are "no longer in Kansas". The management of criminal cases requires all participants to share in the responsibilities and obligations on a sustained, substantial pro-active and collaborative basis in order to provide efficient, effective and fair trials and give meaning to constitutionally guaranteed rights.

[33] As has been recognized in other cases (see cases including R. v. M.(K), 2017 ONCJ 8), the result in this case does mean that the community is deprived of a trial on the merits of a serious set of charges and this is a heavy price to be paid by everyone in a free and democratic society where there is a failure to be attentive to and respect the guaranteed rights of any and all citizens charged with crimes of which they are presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.

[34] The defendants' s. 11(b) Charter right to a trial within a reasonable time had been denied. The charges involving the defendants are accordingly stayed pursuant to s. 24(1) of the Charter.

Released: December 2, 2017

Signed: Justice M.D. McArthur