Court File and Parties

Ontario Court of Justice

Date: December 18, 2017

Court File No.: Halton Region 121160-0795

Between:

Her Majesty the Queen

— and —

Masimba Shana

Before: Justice S. Caponecchia

Heard on: November 16, 2017 and December 18, 2017

Reasons for Judgment released on: December 18, 2017

Counsel:

• M. McGuigan — counsel for the Crown
• A. Fazari — counsel for the defendant Masimba Shana

CAPONECCHIA J.:

INTRODUCTION

[1] The Applicant was charged with "impaired driving" and "over 80" on March 19, 2016. He applies for a stay of proceedings pursuant to s. 11(b) of the Charter on his third trial date. The case did not proceed on the first trial date because there was no per diem judge available to hear the case. The second trial date was adjourned because a main Crown witness was not available.

[2] Defence counsel was retained as of March 24, 2016.

[3] On April 21, 2016 disclosure was provided to the defence.

[4] The case was adjourned on May 4 and 25, 2016.

[5] The defence arranged for a Crown pre-trial prior to the set date appearance on June 8, 2016. A Crown pre-trial was conducted on June 26, 2016.

[6] On July 20, 2016, the defence wrote the Crown to request a more legible copy of an investigating officer's notes.

[7] On July 27, 2016, a judicial pretrial (JPT) was set for October 14, 2016. Both the Crown and defence agree this was the first available JPT date offered by the Court. This is reflected on the Trial Time Estimate Form. The same form indicates that 2 days were required for trial based on 5 anticipated Crown witnesses, 0-2 defence witnesses, and a 10(b) application.

[8] Following the JPT, the defence chose to postpone the setting of a trial date. The defence explicitly waived 11(b) until the next court date and requested an adjournment to November 28, 2016 (45 days).

[9] On November 28, 2016 the first trial date was set: July 18 and July 19, 2017.

[10] On June 5, 2017, a second pre-trial was conducted and the trial date was confirmed.

[11] The defence filed a s. 7, 8, 9, 10(a) & 10(b) Charter application in advance of the first trial date.

[12] The first trial did not proceed on July 18 and 19, 2017. The Trial Co-ordinator contacted the Crown and the defence the day before to notify them that a per diem judge was not available. On July 18, 2017 a second trial date was set: November 16 and 17, 2017. The defence indicated they anticipated bringing an 11(b) application.

[13] A few days after the second trial date was set, the Crown learned that a necessary police witness was not available because he had a booked vacation. The Crown contacted the defence by phone on July 27 and July 28 and by email on August 1st to advise that the Crown would be bringing an adjournment application on August 8, 2017.

[14] On August 8, 2017, the defence sent an agent to deal with the Crown's adjournment application. The agent's instructions were to request the application be postponed to August 29, 2017 so that Mr. Fazari could appear in person to contest it. Justice Brown acceded to the agent's request and adjourned the Crown's adjournment application to August 29, 2017. Before doing so, Brown J. canvassed the availability of new trial dates and the parties were advised that October 23 and 24, 2017 were available to the Court. The Crown was available, but the defence was not. January 2 and 3, 2018 were also available to the Court and Crown but the agent did not have Mr. Fazari's availability for 2018.

[15] On August 22, 2017 the Trial Co-ordinator wrote the Crown and defence to advise them of potential new trial dates should the Crown adjournment application be granted on August 29, 2017. Thirty-one days were offered between October 1 and December 20, 2017.

[16] On August 23, 2017 the defence filed an 11(b) application returnable on August 29, 2017.

[17] On August 29, 2017, Ledressay J. granted the Crown's request for an adjournment. The Crown indicated they would accept the earliest two dates offered by the Court, October 2 and 4, 2017. The defence was not available. The Crown suggested keeping the November 16 and 17 dates and beginning the trial with the exception of the one witness who was unavailable. Defence indicated they preferred not to split up the case and indicated they had availability starting on December 12-15, 18-21, 2017. November 16, 2017 was retained for the 11(b) motion to be argued and the third trial date was set for December 18 and 19, 2017.

[18] On November 16, 2017, the s.11(b) application was heard. The Crown and the defence agreed that should the 11(b) application fail, an additional (third) day for trial was necessary. The Court and Crown were both available on December 6, 2017, the defence was not. The next available day for the Court, Crown, and defence was February 20, 2018. The Court reserved its decision and the Crown called its first witness, a police officer who had holidays booked on the new trial days, December 18 and 19, 2017.

[19] After the 11(b) was argued and prior to November 30, 2017 the Trial Co-ordinator contacted the Crown and defence and offered earlier dates for the third day of trial. The Court and the Crown were both agreeable to adding a third trial date on December 20, 21, 22 and February 1, 2018. The defence is not available on these days. The defence indicated they were available on 5 different days in January 2018 and 2 days in February prior to February 20, 2018. The defence's availability does not coincide with the Court.

NOT IN ISSUE

[20] Total delay in this case is the period from the charge to the actual or anticipated end of trial: Jordan, at para. 47.

[21] In this case the total delay is between March 19, 2016 (charge date) to the anticipated end of the trial, February 20, 2018: 704 days, or 23 months and 2 days.

[22] Both the Crown and defence agree that the defence explicitly waived 45 days of delay after the JPT was conducted to when the first trial date was set (October 14, 2016 to November 28, 2016).

ISSUES # 1 NET DELAY CALCULATION

[23] At the heart of the Jordan framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in provincial court: Jordan para. 46.

[24] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the 18 month ceiling, the delay is presumptively unreasonable: Jordan para. 47.

[25] The Crown may rebut the presumption by showing the delay is reasonable because of "exceptional circumstances": Jordan para. 68.

[26] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded: Jordan para. 75.

[27] The Crown and defence do not agree on the net delay in this case (total delay less defence delay). They differ on the amount of time to be deducted as "defence caused delay" and whether there were "exceptional circumstances" in this case.

A. DEFENCE POSITION ON NET DELAY

[28] The defence arguments are:

1. The net delay in this case is the total delay, less only the 45 days it waived.

2. The defence is not responsible for any delay on account of their unavailability because the first and second trials did not proceed through any fault of the Applicant.

3. There are no exceptional circumstances warranting a deduction from the total delay in this case.

[29] According to the defence the net delay is 21 months and 2 days if the trial finishes on February 20, 2018.

[30] If this Court accepts the argument of the defence, the net delay in this case is over the 18-month ceiling imposed in Jordan.

B. CROWN POSITION ON NET DELAY

[31] The Crown's first argument is that in addition to the 45 days explicitly waived by the defence, an additional 70 days should be deducted from the total delay because the Court and the Crown were available on earlier trial dates prior to the first and second trial dates and the defence was not.

[32] 70 days should be counted as defence delay on the following basis:

i. 11 days

• The first trial date was set on November 28, 2016.
• According to the Trial Estimate Form, the Court and Crown were available on May 31 and June 1, 2017, the defence was not.
• The defence and Court were agreeable to the dates of June 15 and 19, 2017, the Crown was not.
• Therefore, the defence is responsible for the 11 days of delay between June 2-12, 2017.

ii. 59 Days:

• The second trial date was chosen on July 18, 2017.
• According to the Trial Estimate Form, the Court and Crown were both available on September 18, 19, 2017 and the defence was not available until November 16 and 17, 2017.
• Therefore, the defence is responsible for an additional 59 days of delay between the September 20 and November 17, 2017.

[33] The Crown also argues that any delay between the original third trial dates of December 18 and 19, 2017 and the revised anticipated last trial date, February 20, 2017 is defence caused delay for two reasons:

• On November 16, 2017 the Crown and Court were available to add an extra day for trial on December 6, 2017. The defence was not, and February 20, 2018 was chosen because it was the next date agreeable to all parties.
• After the 11(b) application was argued the Trial Co-ordinator offered additional continuation dates prior to February 20, 2018 that were agreeable to the Court and Crown but not the defence: December 20, 21, 22, February 1, 2018.

[34] If this Court accepts the Crown's position on the delay between the original anticipated end of trial (December 18, 19, 2017) and the revised end of trial (February 20, 2018) the net delay increases by 1 day, given the Court and Crown were available on December 20, 21, 22, 2017.

[35] The Crown's also argues that the absence of a per diem judge should be considered an unforeseen "exceptional circumstance" within the meaning of Jordan and a further deduction of 21 days is warranted. This is the time between when the first trial date could have been completed, July 19, 2017 -- but for the unavailability of a judge -- and the next available dates offered by the Court, August 8 and 9, 2017. If I accept the Crown's second argument, the net delay would be further reduced below the 18-month ceiling.

[36] The Crown is not asking for this matter to be treated as a transitional case.

C. CONCLUSION ON NET DELAY

[37] This Court rejects that the defence was only responsible for the 45 days of delay it explicitly waived.

[38] This Court accepts the Crown's argument that the defence caused a further 70 days of delay prior to the first and second trial dates.

[39] This Court also finds that any delay occasioned by adding another day on February 20, 2018 should be deducted from the total delay because the Court and Crown were available on December 6, 2017 as well as December 20, 21, and 22, 2017 and the defence was not.

[40] The Court does not accept the "exceptional circumstances" argument advanced by the Crown.

[41] Accordingly, the net delay in this case is below the Jordan ceiling: 17 months and 8 days.

D. ANALYSIS

i. DEFENCE CAUSED DELAY

[42] The deduction of 70 days from the total delay by the Crown is premised on the fact that the Crown and Court were available when the defence was not and therefore the defence caused 70 days of delay, within the meaning of Jordan.

[43] The defence argues that R. v. Godin 2009 SCC 26, [2009] S.C.J. No. 26 is still good law even after Jordan. More to the point, defence counsel are not required to hold themselves in "a state of perpetual availability": Godin para. 23. Therefore, the 70 days should not be deducted from the total delay.

[44] Jordan specifically makes it clear that going forward defence caused delay will be calculated differently. There are two components to defence delay. One is defence waiver, the other is "delay caused solely by the conduct of the defence." The example specifically given in Jordan of the latter is the situation where the Crown and Court are ready to proceed but the defence is not: Jordan, para. 64.

[45] In Jordan, a deduction from the total delay was applied for the period between when the Crown and Court were available to continue, the defence was not, and the next mutually agreeable date: Jordan para. 123, 124. Deduction for similar reasons took place in R. v. Cody 2017 SCC 31 para. 55, R. v. Coulter 2016 ONCA 704 para. 73-77 and R. v. Williamson 2016 SCC 28, [2016] S.C.J. No.28 para. 21-22.

[46] Therefore, in this case, I accept the Crown's calculations for defence caused delay. They are consistent with the application of the principles in Jordan.

[47] The Supreme Court in Jordan specifically recognized that the new framework for assessing delay is a departure from the law that was applied to s. 11(b) applications in the past: Jordan para. 93. I conclude that the decision in Godin has been overtaken by Jordan and the previous method for calculating delay has been abandoned. Jordan was released 3 months and 20 days after Mr. Shana was charged. Both the Crown and the defence were on notice of the Jordan decision well before each of the trial dates was set and were obliged to govern themselves accordingly.

ii. EXCEPTIONAL CIRCUMSTANCES

[48] Exceptional circumstances 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. They need not meet a further hurdle of being rare or entirely uncommon: Jordan para. 69.

[49] It is obviously impossible to identify in advance all circumstances that may qualify as "exceptional" for the purposes of deciding a s. 11(b) application. Ultimately, the determination of whether circumstances are "exceptional" will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases: Jordan, para. 70.

[50] Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel, or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition: Jordan, para. 70.

[51] Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance: Jordan para. 73.

[52] In this case, the Crown asserts that there were exceptional circumstances in this case that are analogous to situations where a judge falls ill or is otherwise unexpectedly unavailable on a scheduled continuation date (R. v. Brooks 2017 ONSC 1063, R. v. M(K) 2017 ONCJ 8, R. v. Riley 2017 ONSC 4448). There is no suggestion that the case is complex.

[53] The defence asserts the unavailability of a judge in this case is as a result of lack of resources.

[54] I agree with the defence. In this case, the adjournment of the first trial date was because there was no per diem judge available to hear the case. In the absence of any other evidence, good sense tells me this is a classic case of lack of resources. The cases advanced by the Crown are distinguishable on their facts.

[55] Accordingly, there will be no deduction for exceptional circumstances.

ISSUE #2 – CASES UNDER THE 18 MONTH CEILING

[56] For the reasons indicated, the net delay in this case is below the Jordan ceiling: 17 months and 8 days.

[57] If the total net delay from the charge to the actual or anticipated end of trial falls below the presumptive ceiling, 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. A stay of proceedings in a case that comes beneath the ceiling will be rare, and limited to clear cases: Jordan para. 47-48.

i. SUSTAINED EFFORTS TO EXPEDITE PROCEEDINGS BY THE DEFENCE?

[58] In this case, the defence has not met its onus. I come to this conclusion based on the following facts:

1. Mr. Shana was charged on March 19, 2016. The defence had disclosure as of April 21, 2016. Despite this, the defence took no steps to initiate a Crown pre-trial before the appearances on May 4 or May 25, 2016. Defence delayed scheduling a Crown pre-trial until sometime prior to a court appearance on June 8, 2016. The record does not reveal any dissatisfaction with the Crown pre-trial being scheduled over 6 weeks later, on July 26, 2016.

2. Notwithstanding the defence had disclosure since April 21, 2016, they did not initiate a request for a more legible copy of PC Kennedy's notes until July 20, 2016.

3. On July 27, 2016, a JPT was set. The first available date for a JPT was October 14, 2016. Again, no objection was taken on the record by the defence to having to wait 2 months and 24 days for a JPT.

4. In addition, after the JPT on October 14, 2016 the defence chose not to set a trial date immediately, but instead waived 11(b) for 45 days and set the first trial date on November 28, 2016.

5. On August 8, 2017, the defence successfully requested a postponement of the Crown's adjournment application. The Crown's request for an adjournment was straightforward and not so complex that an agent could not respond to it. As the record on August 29, 2017 reveals, Mr. Fazari took issue with the lack of detail in the affidavit and the unsworn nature of the material relied upon by the Crown. The same arguments could have been advanced by an agent on August 8, 2017. What is more, on August 8, 2017, earlier trial dates were canvased, and the defence was either not available or the agent did not have defence counsel's availability for January 2018. In this regard, I agree with J. Cornell in R. v. Riley 2017 ONSC 4448 a para. 11 where the Court held that "if an agent is to be used, it is incumbent upon the agent to be fully aware of counsel's schedule."

[59] I do not mean to suggest that the choices made by the defence were unreasonable and this review is not intended as a criticism. However, the defence actions, in my view, were simply not consistent with a sustained effort to expedite the proceedings. Rather, they are indicative of a satisfaction with the pace at which the case was progressing.

ii. DID THE CASE TAKE MARKEDLY LONGER THAN IT REASONABLY SHOULD HAVE?

[60] Even if I were satisfied that the defence's actions were consistent with a sustained effort to expedite the proceedings, I would not be satisfied that the defence has met its onus to demonstrate that this case took markedly longer than it reasonably should have.

[61] This analysis involves a consideration of the complexity of the case, the resulting time required for preparation and presentation of the evidence and comparison to how long it takes to bring similar cases in the jurisdiction to trial and completion: Jordan para. 87-91.

[62] In this case, the revised time estimate of 3 days is not unreasonable for an impaired driving case that is anticipated to involve 2 civilian witnesses, 3 police officers and a s. 7, 8, 9 and 10 Charter motion.

[63] Accordingly, the 11(b) application is dismissed.

Released: December 18, 2017

Signed: Justice S. Caponecchia